The Queen v Eardley-Wilmot - [2008] NZCA 213

IN THE COURT OF APPEAL OF NEW ZEALAND
CA120/2008
[2008] NZCA 213
THE QUEEN
v
MEGATRON EARDLEY-WILMOT
Hearing:2 July 2008

Court:O'Regan, Ellen France and Venning JJ
Counsel:V C Nisbet for Appellant

M E Ball for Crown

Judgment:8 July 2008 at 10.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS OF THE COURT
(Given by Ellen France J)
Introduction
[1]       The appellant was sentenced on 22 February 2008 by Dobson J to an effective term of imprisonment of six years and six months in respect of three drug related offences: HC WN CRI 2008-085-684. He appeals against sentence on the basis that the term is manifestly excessive having regard to the nature of the offending and his personal circumstances.
Factual background
[2]       The first two charges arose from events in 2003. In relation to this period, the appellant pleaded guilty to a charge of conspiracy to import a class A controlled drug, namely, methamphetamine, and to a charge of importing a class B controlled drug, namely, MDMA or ecstasy.
[3]       The third offence was committed in 2005 and involved importing a class A controlled drug, namely, LSD.
[4]       The circumstances of the offending in 2003, as described by the sentencing Judge are as follows:
[4]       … [The appellant] and two associates, Nicholas Ferry and Christian Mitchell embarked on plans to import drugs to New Zealand. In July that year, [Mr] Mitchell opened eight post office boxes in Wellington under fictitious names and addresses. [The appellant] recorded the numbers and keys of those boxes in [Mr Mitchell’s] notebook … . [Mr] Ferry transferred NZ$50,000 to associates in Canada for the inferred purpose of purchasing drugs. [The appellant] and [Mr] Ferry then travelled to Canada and were together in Vancouver, and on 3 September 2003 [Mr] Ferry sent to [Mr] Mitchell, who had remained in New Zealand, 84 grams of Methamphetamine. That importation was intercepted on 12 September 2003 and [the appellant’s] part in those arrangements forms the basis of the conspiracy charge.
[5]       Also in early September 2003, [the appellant] packaged for sending from Canada to New Zealand 56 grams of Ecstasy in powder form … [with] a street value of some $22,000. [The appellant] packed the powder into two so-called “ounce bags”. Those packages were sent via airmail envelopes to the post office boxes that had been opened by [Mr] Mitchell, but were intercepted by Customs on 10 September 2003. [The appellant’s] part in that is the basis for the importation of Ecstasy charge.

[5] Mr Ferry and Mr Mitchell were also involved in another offence of importing methamphetamine about that time to which the appellant was not a party. They were both later arrested and ultimately convicted.
[6] The appellant remained at large in Canada for a further four years. In March 2005 he made contact with an associate in Wellington, Awos Arhaim, about importing drugs into New Zealand. The appellant provided advice to Mr Arhaim about avoiding detection for drug importations, arranged a “dummy” run of an…

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 Eardley-Wilmot

Details

AGLC: The Queen v Eardley-Wilmot [2008] NZCA 213
Case: [2008] NZCA 213
Decision Date: 8 July 2008

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from Megatron Eardley-Wilmot against his sentence, imposed by Dobson J, of an effective term of imprisonment of six years and six months in respect of three drug-related offences. The appellant contended that the term was manifestly excessive considering the nature of the offending and his personal circumstances. The first two charges stemmed from events in 2003, involving conspiracy to import a class A controlled drug, methamphetamine, and importing a class B controlled drug, MDMA or ecstasy. The third offence, committed in 2005, involved importing a class A controlled drug, LSD. The appellant argued that the starting point adopted by the Judge was too high and that insufficient discount was given for the mitigating factors. The court considered that the ten-year starting point was within the available range, and the discount for mitigating factors was appropriate. The court concluded that the effective sentence of six years and six months imprisonment was not manifestly excessive and dismissed the appeal.

The legal issues the Court was required to decide were whether the starting point of ten years adopted by the sentencing judge was too high, and whether the discount for mitigating factors was appropriate. The Court found that the starting point was within the available range, and the discount for mitigating factors was appropriate. The Court considered the nature and scope of the conspiracy, the extent to which the offender participated and persisted in it, and the differences in culpability between the appellant and his co-offenders. The Court also reviewed the overall sentence from a totality perspective and found that the effective sentence of six years and six months imprisonment was not manifestly excessive. The Court dismissed the appeal, upholding the sentence imposed by Dobson J.

Orders