The Queen v Richardson - [2008] NZCA 353

IN THE COURT OF APPEAL OF NEW ZEALAND
CA183/2008
[2008] NZCA 353
THE QUEEN
v
LYNDON VAUGHAN RICHARDSON
Hearing:25 August 2008

Court:O'Regan, Chisholm and Ronald Young JJ
Counsel:A J Bailey for Appellant

A M Powell for Crown

Judgment:8 September 2008 at 4 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS OF THE COURT
(Given by O’Regan J)
Introduction
[1] Mr Richardson appeals against the total sentence of nine years four months imprisonment imposed on him in the High Court in respect of the following charges:
(a) Conspiring to supply methamphetamine;
(b)Possession of a methamphetamine pipe;
(c)Unlawful possession of a firearm;
(d)Unlawful possession of ammunition;
(e)Possession of precursor substances;
(f)Ten counts of receiving stolen goods.

[2]       The appeal is brought on the basis that the overall sentence was manifestly excessive.
The sentence
[3]       The sentencing Judge, Fogarty J, convicted and discharged the appellant on the charge of possession of a pipe and imposed sentences of:
(a)       Five years and eight months imprisonment for the conspiracy charge;
(b)One year and eight months imprisonment for the firearm/ammunition charges and possession of precursor substances (concurrent with each other but cumulative on the above);
(c)Two years imprisonment for the receiving charges (concurrent with each other but cumulative on the above).

Basis of appeal
[4]       The essence of the argument put forward by Mr Bailey on behalf of Mr Richardson is that the Judge ought to have sentenced on a basis that the charges relating to the firearm and ammunition, precursor substances and receiving were all elements of the drug offending. He said those charges ought to have been dealt with on the basis that the sentences for them were concurrent with that for the conspiracy charge but that conspiracy charge was treated as the lead charge and the sentence for it reflected the appellant’s overall criminality. He accepted that, on appeal, the precise method by which a Judge sentences for multiple offending will be secondary to the overall outcome. His argument was that the approach adopted by the Judge led to the imposition of a sentence which did not fairly reflect the overall criminality of the appellant’s offending.
High Court sentencing
[5]       The appellant was sentenced with seven other offenders who were involved in the same conspiracy. Fogarty J described the conspiracy as involving “a well organised syndicate sourcing methamphetamine from Auckland, transporting it down to Christchurch, cutting some of it in Christchurch and then ongoing sales”.
[6]       He described Mr Richardson’s role as being one of the Christchurch buyers, together with two of the other parties sentenced at the same time. He said that these three were buyers of the methamphetamine from Auckland suppliers. Three trips to Auckland were made. On the first trip 56 grams were purchased, on the second trip 182 grams and on the third trip 168 grams.
[7]       The methamphetamine pipe, the received goods (electronic equipment stolen from commercial premises and residences in eight burglaries), the firearm and ammunition and the precursor substances were found by the police…

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 Richardson

Details

AGLC: The Queen v Richardson [2008] NZCA 353
Case: [2008] NZCA 353
Decision Date: 8 September 2008

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of The Queen v Richardson involved the appellant, Lyndon Vaughan Richardson, appealing against the total sentence of nine years and four months imprisonment imposed by the High Court. The charges included conspiring to supply methamphetamine, possession of a methamphetamine pipe, unlawful possession of a firearm and ammunition, possession of precursor substances, and ten counts of receiving stolen goods. Richardson contended that the overall sentence was manifestly excessive. The Court of Appeal assessed the legal issues presented, including whether the sentences for the firearm, ammunition, precursor substances, and receiving charges should have been treated concurrently with the conspiracy charge, which was the lead charge, and whether the approach adopted by the sentencing judge led to a sentence that did not fairly reflect Richardson's overall criminality.

The Court of Appeal considered the sentencing judge's approach and the arguments presented by counsel for both parties. While acknowledging that there may have been some double counting in the methodology adopted by the judge, the Court concluded that the overall sentence was within the range available to the judge and that there was no proper basis for appellate interference with the sentence imposed in the High Court. The Court of Appeal found that the judge's assessment that there was no need for a reduction in the sentence to reflect the totality principle was a conclusion that was reasonably open to him.

Ultimately, the Court of Appeal dismissed the appeal, stating that the sentence was within the range available to the judge and that he would likely have reached a similar sentence if he had adopted the sentencing approach advocated by Richardson's counsel. As a result, the Court found no basis for making a finding that the sentence was manifestly excessive.

Orders