R v King

Case [2018] NZHC 2540 26 September 2018

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2016-092-5823 [2018] NZHC 2540

THE QUEEN

v

DAVID KING

Hearing: 26 September 2018

Appearances:

D Stevens for Crown
J Hudson & S Tait for Defendant

Judgment:

26 September 2018

SENTENCING NOTES OF VAN BOHEMEN J

Solicitors/Counsel:
Crown Solicitor, Manukau
S Hudson, Auckland
J Hudson, Auckland

R v KING [2018] NZHC 2540 [26 September 2018]

[1] David King, you appear for sentence having been found guilty after trial by jury of one charge of importing a Class A drug, methamphetamine.1 The maximum sentence for this offence is life imprisonment.2

Facts of the offending

[2] You live in Whangarei with your wife. In 2001, you suffered a stroke which left you significantly physically disabled, with a paralysis over the left side of your body and almost a total loss of the use of your left arm. Your health issues mean you spend most of your time at home, and a lot of that time is on your computer, which is a central part of this offending.

[3] In December 2015, you received an email from a person who called himself Reverend van Cabin. In this email, you were told that someone with the same name as you had been left a substantial inheritance and that if you travelled to South Africa and signed some documentation to facilitate the release of the inheritance, you would receive half of the funds, being $15 million.

[4] You knew this was an inheritance scam and you initially thought it might also have been directed at scamming you. However, when the international flight tickets sent by the Reverend were confirmed as authentic by the airline, you decided to travel to South Africa to participate in the claim to this inheritance. To that extent, you elected to participate in what you understood to be a fraudulent enterprise.

[5] You departed Auckland for Johannesburg via Sydney on 28 April 2016.

[6] It is not clear what occurred in the three weeks you were in South Africa. Your evidence was that while you were in Johannesburg you were in the care of a “Ms Elizabeth”, an associate of the Reverend. You say she provided you with accommodation and transport and took you on excursions while you waited for the Reverend to appear – which he never did.

1 Misuse of Drugs Act 1975, s 6(1)(a).
2 Misuse of Drugs Act, s 6(2)(a).

[7] On one excursion, Ms Elizabeth took you shopping, insisting that you buy clothes for yourselves and gifts to give to others, including the Reverend who, you had by then been told, would meet you on your return to New Zealand. Ms Elizabeth also bought you a suitcase with four wheels which she said would be easier for you to use than your old two-wheel bag because of your mobility difficulties. She packed the new clothes and gifts into the new bag she brought to you. She took away…

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 King

Details

AGLC: R v King [2018] NZHC 2540
Case: [2018] NZHC 2540
Decision Date: 26 September 2018

CaseChat Overview and Summary

David King was convicted of importing 1960 grams of methamphetamine into New Zealand, with a purity of 46%. The court was required to determine the appropriate sentence, taking into account the aggravating factors such as the quantity of drugs imported, and the mitigating factors such as King's limited role in the importation and his mental impairment caused by a stroke. The court also had to consider the purposes and principles of sentencing, including the need to promote a sense of responsibility, denounce the offending, and assist with the offender's rehabilitation and reintegration. The court decided that a starting point of five years' imprisonment was appropriate, but after considering the mitigating factors such as King's mental impairment, vulnerability, and physical health, the court determined that a discount of three years was warranted. As a result, King was sentenced to 12 months' home detention with conditions, including a prohibition on accessing the internet. The court emphasised that King's case was a singular exception due to the unusual combination of circumstances, and the chances of those circumstances being replicated in a future case were considered to be very low.

Orders