The Queen v Cartwright - [2006] NZCA 207

IN THE COURT OF APPEAL OF NEW ZEALAND
CA462/05
THE QUEEN
v
NICHOLAS JAMES CARTWRIGHT
Hearing:25 July 2006

Court:Glazebrook, Chambers and Robertson JJ
Counsel:S K Ellis for Appellant

K J Beaton for Crown

Judgment:10 August 2006 at 11 am

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
Introduction
[1]       The appellant, Mr Cartwright, and eleven others faced trial in the High Court at Hamilton between April and August 2005 on a variety of charges under the Misuse of Drugs Act 1975 and the Arms Act 1983. Others had also been charged out of the same operation and had entered pleas of guilty prior to trial.
[2]       Mr Cartwright was found guilty by the jury in August 2005 on one charge of conspiring to manufacture the class A controlled drug heroin and one charge of conspiring to supply the class B controlled drug morphine sulphate to a prison inmate.
[3]       On 10 November 2005, Mr Cartwright was sentenced by Priestley J (who had presided at this lengthy trial) to four years’ imprisonment on the first count and two and a half years’ imprisonment on the second, the terms to be served concurrently.
[4]       Mr Cartwright appealed against both conviction and sentence but prior to the appeal hearing he abandoned the appeal against conviction.
[5]       The appeal against sentence is advanced on the grounds that the sentences imposed were manifestly excessive and that there was unjustifiable disparity between the sentences imposed upon Mr Cartwright and those imposed on others for associated offending.
[6]       Nine of his co-accused were sentenced on 14 October 2005, one on 21 October 2005, and another on 10 November 2005, as was Mr Cartwright.
The factual circumstances
[7]       Inasmuch as the facts were of relevance on the sentencing, the Judge said:
[3]       The major focus of that drug trial, of which you were one of a number of accused, was on conspiracies to manufacture and supply methamphetamine. Although clearly you were caught up in that conspiracy you were not convicted of any methamphetamine related counts. Mr Buckle has gone to some lengths to point out to me that I should not let my treatment of you today be coloured by the fact that you were an associate both of Richard McFall who is clearly the ring leader of the methamphetamine conspiracies, and other occupants of Nikau Place.
[4]       Both charges of which you were convicted are heroin focused. As I have said when sentencing other prisoners, there is clear and indeed undisputed evidence that the occupants of 18 Nikau Place would use heroin, which they manufactured themselves, probably inside their residence, to counteract some of the addictive side effects of their methamphetamine use, using heroin in effect as a “downer”, to come down from the euphoric effects of “P” consumption.
[5]       You were, however, one of the conspirators who was involved in a misguided attempt by Mrs McFall to get a stash of drugs to her husband…

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 The Queen v Cartwright

Details

AGLC: The Queen v Cartwright [2006] NZCA 207
Case: [2006] NZCA 207
Decision Date: 10 August 2006

CaseChat Overview and Summary

The appeal in The Queen v Cartwright was brought by Nicholas James Cartwright against his sentence, but not against his convictions, for conspiracy to manufacture heroin and conspiracy to supply morphine sulphate tablets to a prison inmate. The appeal was heard in the Court of Appeal of New Zealand on 25 July 2006 by Glazebrook, Chambers and Robertson JJ. The appellant was represented by S K Ellis, and the Crown by K J Beaton. Judgment was handed down on 10 August 2006 by Robertson J, dismissing the appeal against sentence.

The legal issues before the Court were whether the starting point for sentencing was in error, manifestly excessive and whether there was an unjustifiable disparity between the sentences imposed on Mr Cartwright and those imposed on others for associated offending. The Court found that the starting point was not in error and that the overall effective sentence of four years with two and a half years concurrently was within the available sentencing discretion. Furthermore, the Court found that there was no unjustifiable disparity between the sentences imposed on Mr Cartwright and those imposed on others for associated offending.

The Court considered the factual circumstances of the case, including Mr Cartwright's involvement in the conspiracy to manufacture and supply heroin and morphine sulphate tablets. The Court found that there was a commercial aspect to Mr Cartwright's offending, as he provided morphine sulphate tablets to the group in order to repay a debt he owed to Mr McFall. The Court also considered the totality principle, finding that the overall effective sentence of four years with two and a half years concurrently was appropriate for the totality of the offending. The Court further found that the sentence imposed on Mr Cartwright was not disparate when compared to the sentences imposed on others for associated offending.

Orders