R v Lewenikurowai - [2007] NZCA 531

IN THE COURT OF APPEAL OF NEW ZEALAND
CA420/07
[2007] NZCA 531
THE QUEEN
v
NEUMI LEWENIKUROWAI
Hearing:12 November 2007

Court:Wilson, Chisholm and Potter JJ
Counsel:L P Iosefa for Appellant

H D M Lawry for Respondent

Judgment:22 November 2007 at 9.30am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Chisholm J)
[1]       Following trial by jury in the District Court at Christchurch, Mr Lewenikurowai was sentenced by Judge P A Moran to six years imprisonment for importing pseudoephedrine. In addition concurrent sentences of six months imprisonment and three years imprisonment were imposed for importing cannabis and having possession of the pseudoephedrine tablets with the intention that they be used to manufacture methamphetamine respectively. The Judge ordered Mr Lewenikurowai to serve a minimum of four years imprisonment.
[2]       This is an appeal against both the length of the term of the prison sentence and the minimum non-parole period. It is alleged that both are excessive.
Background
[3]       Mr Lewenikurowai is a Fijian national. Three months after being deported from New Zealand to Fiji on 26 July 2006, he boarded a ship berthed at Suva and hid in the hold.
[4]       During the voyage to New Zealand Mr Lewenikurowai was located, along with a backpack containing cannabis leaf and 13,500 pseudoephedrine tablets. He was arrested when the ship berthed at Lyttelton on 1 November 2006. While he acknowledged that the cannabis was his, he denied any knowledge of the bag containing the pseudoephedrine which had a potential street value of between $384,750 and $577,125.
[5]       Mr Lewenikurowai is 37 years of age. Before this offending he had been twice deported from New Zealand to Fiji. The first deportation occurred after he had served a sentence of four and a half years imprisonment imposed in 1996 for aggravated robbery. Using a false identity he returned to New Zealand in 2004. The second deportation occurred after he had served a sentence of two years imprisonment for possession of a precursor substance and possession of methamphetamine.
[6]       The current offences were committed while he was on bail granted by a Fijian court. Apart from the New Zealand convictions the appellant also has a 1993 conviction in Fiji for possession of “dangerous drugs”. The probation officer considered that there was a high risk of re-offending.
Sentencing in the District Court
[7]       Judge Moran approached sentencing on the basis that the appellant was a courier carrying drugs with a significant street value “for other people”. A degree of planning is reflected by the fact that the appellant had provisions, a cellphone and contacts within New Zealand, was noted by the Judge. Judge Moran also noted that the offending involved illegal entry into New Zealand and that the pseudoephidrine was to be used for the manufacture of methamphetamine which is “a particularly harmful drug”. In the Judge’s view there were no mitigating factors.
[8]       Having referred to R v Ho HC AK CRI 2005-092-567 12 April 2005 Judge…

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 Lewenikurowai

Details

AGLC: R v Lewenikurowai [2007] NZCA 531
Case: [2007] NZCA 531
Decision Date: 22 November 2007

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from Neumi Lewenikurowai against his sentence for drug-related offences. Lewenikurowai, a Fijian national with a history of criminal activity, had been sentenced to six years in prison for importing pseudoephedrine, and additional concurrent sentences for importing cannabis and possessing pseudoephedrine with intent to manufacture methamphetamine. The District Court judge imposed a minimum non-parole period of four years. Lewenikurowai's counsel argued that both the length of the sentence and the minimum non-parole period were excessive. The Court of Appeal considered whether the trial judge's sentence was manifestly excessive and whether it took into account the appropriate sentencing principles. The appeal court found that the sentence of six years imprisonment was not manifestly excessive, given Lewenikurowai's history of reoffending and the potential harm his activities posed. The minimum non-parole period of four years was also deemed appropriate. Therefore, the appeal against sentence was dismissed.

Orders