R v Byford - [2008] NZCA 215

IN THE COURT OF APPEAL OF NEW ZEALAND
CA319/07
CA323/07
CA425/07
[2008] NZCA 215
THE QUEEN
v
TERRY KAWHIAITI BYFORD
ANGELA JONNA NGATAKI
Hearing:3 July 2008

Court:Ellen France, Gendall and Venning JJ
Counsel:P J Kaye for T K Byford

P S Coles for A J Ngataki
A Markham for Crown

Judgment:8 July 2008 at 2.30 pm

JUDGMENT OF THE COURT

The appeals are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
Introduction
[1]       Following a two week trial at Palmerston North Mr Byford and Ms Ngataki were found guilty on one count of possession of the class A drug methamphetamine for supply, five counts of unlawful possession of firearms and one count of unlawful possession of explosives. The trial Judge, MacKenzie J, sentenced Mr Byford to six years six months’ imprisonment and Ms Ngataki to five years’ imprisonment: HC PMN CRI 2006-054-000557 29 June 2007.
[2]       Mr Byford appealed against both conviction and sentence. Ms Ngataki initially appealed only against sentence. Subsequently she also sought to appeal against conviction. At the outset of the hearing both Mr Kaye and Mr Coles confirmed the appellants no longer pursued the appeals against conviction and they are accordingly dismissed. The appeals were limited to sentence.
Background
[3]       On 30 January 2006 the appellants drove from Auckland to Palmerston North and checked into a motel. They took three units for themselves and for their associates. The police were alerted and watched the units from 11.00 pm. At about 5.30 am on 31 January Mr Byford and three others left the motel unit in a car. The police stopped the car. They found 270 mg of a crystalline substance later confirmed to be methamphetamine and cash of $3,462. The police then searched the motel units. Ms Ngataki had been alerted by a text message from Mr Byford and was found leaving with a backpack containing 14.3 grams of methamphetamine. The backpack also contained a number of ziplock bags, a scanner, a stun gun, a knife, digital scales and $8,000 cash. In the course of their search of the motel property the police also found a sports bag containing five firearms, three of which were loaded, and further ammunition for the weapons but no further drugs. However, after the units had been released the motel operators found three one-ounce bags containing a further 82.9 grams of methamphetamine in a bed in the back bedroom of the unit which the appellants had occupied. The total amount of methamphetamine found was 97 grams with a street value of approximately $97,000.
The sentencing exercise
[4]       The Judge took a start point of seven years for the sentence of Mr Byford as the principal offender and in order to reflect the totality of the offending. He then reduced that by six months because he treated Mr Byford as a first offender. He also took account of other personal mitigating factors. That left the final sentence of six and a half years.
[5]       The Judge accepted Ms Ngataki may…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Byford

Details

AGLC: R v Byford [2008] NZCA 215
Case: [2008] NZCA 215
Decision Date: 8 July 2008

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered appeals against the sentences imposed on Terry Kawhiaiti Byford and Angela Jonna Ngataki for possession of methamphetamine for supply, unlawful possession of firearms, and unlawful possession of explosives. The appellants were found guilty following a two-week trial at Palmerston North and were sentenced by MacKenzie J to six years six months’ imprisonment for Byford and five years’ imprisonment for Ngataki. Both appellants initially appealed against their convictions and sentences, but they later withdrew the appeals against their convictions. The appeals proceeded only on the grounds of the sentences.

The legal issues before the court were whether the sentences imposed by the trial judge were manifestly excessive. Byford’s counsel argued that the sentence of six years six months was excessive, particularly in light of the additional charges relating to the firearms. Ngataki’s counsel contended that her sentence of five years was manifestly excessive given her lesser role in the offending. The court had to consider whether the sentences reflected the totality of the offending and the roles of the respective appellants, taking into account both aggravating and mitigating factors.

The Court of Appeal found that the sentence for Byford was not manifestly excessive. The court accepted that the offending fell within band 2 in R v Fatu and that the start point of five years could not be criticised. While acknowledging the additional charges were aggravating, the court concluded that the overall sentence of six years six months did not exceed what was warranted by the totality of the offending. For Ngataki, the court found that her sentence was appropriate given her active complicity in the serious offending and the balancing of her personal aggravating and mitigating factors by the trial judge. The appeals were dismissed, and the sentences were upheld.

Orders