The Queen v Wilkinson - [2004] NZCA 319

IN THE COURT OF APPEAL OF NEW ZEALAND
CA277/04
THE QUEEN
v
ERIN STEPHEN SIMON WILKINSON
Hearing:9 December 2004
Court:O’Regan, Goddard and Wild JJ
Counsel:P J Kaye for Appellant

M F Laracy for Crown

Judgment:16 December 2004

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________
REASONS
(Given by Goddard J)
Introduction
[1]       The appellant pleaded guilty to one count of perjury and was sentenced to two years three months imprisonment from a starting point of three years imprisonment. He appeals against that sentence on the ground that in the circumstances it is manifestly excessive. His essential argument is that whilst a starting point of two to three years may have been appropriate, insufficient discount was given for his plea of guilty and to take account of his personal attributes and the reasons why he committed the offence.
[2]       The perjury in question was in the most serious category, having been committed on oath, before a jury, at the trial of an associate for possession of a class A drug and three categories of class B drug. The appellant gave evidence for the defence, stating that it was he who had been in possession of the drugs and not his associate.
Facts
[3]       The brief facts of the drug offending were that in the early hours of the morning of 19 July 2002, the appellant and his associate, Henry Loheni, travelled into Auckland city in Mr Loheni’s motor vehicle. They parked near the Kiwi Tavern in Britomart Place and went into the Tavern. Some time later two police officers saw the appellant attempting to get into Mr Loheni’s vehicle and on approaching him thought they smelled cannabis. They searched the vehicle and found five plastic zip-lock bags containing methamphetamine and an ecstasy table. Approximately 800 new empty zip-lock bags were also found behind the front passenger seat. The appellant was asked who the owner of the vehicle was and said it belonged to an associate who was in the Kiwi Tavern. He was escorted into the tavern and asked to point Mr Loheni out, which he did. On being searched Mr Loheni was found to be in possession of a cigarette packet containing a number of zip-lock bags, 10 of which were found to contain cocaine, a further 12 of which were found to contain methamphetamine, and two of which contained 42 ecstasy tablets. In total, 4.82g of cocaine, 11.6g of methamphetamine and 43 ecstasy tablets were found, with a total approximate ‘street’ value of between $7,470-9,628.
[4]       In the event Mr Loheni was acquitted by the jury, and although Mr Kaye submitted that the appellant’s evidence may not have been critical in achieving those acquittals, we have little doubt that it was. As would be expected, the appellant was subsequently charged with possession of the drugs, based on the admissions he had made at Mr Loheni’s trial.
[5]       According to the appellant, although Mr Loheni had agreed to pay him $10,000 for giving the false evidence at Mr Loheni’s…

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 Wilkinson

Details

AGLC: The Queen v Wilkinson [2004] NZCA 319
Case: [2004] NZCA 319
Decision Date: 16 December 2004

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Erin Stephen Simon Wilkinson, challenged his two-year-three-month imprisonment sentence for perjury, arguing it was manifestly excessive. The Court of Appeal, comprising O'Regan, Goddard, and Wild JJ, was tasked with determining whether the sentence was appropriate given the appellant's guilty plea, personal attributes, and the nature of the offence. The appellant had committed perjury during a trial, falsely claiming possession of drugs to secure the acquittal of an associate. The appellant's appeal centred on the claim that the sentence was excessively harsh, particularly because his plea of guilty and personal circumstances were not adequately accounted for in the sentencing. The Court of Appeal assessed the severity of the perjury, the appellant's motivations, and the circumstances under which the plea was made. The court found that the appellant's actions significantly disrupted the criminal justice process and warranted a strong deterrent sentence. Although the appellant's personal attributes and the guilty plea warranted some discount, the court held that the sentence was appropriate, considering the inherent seriousness of the crime and the need for deterrence. The appeal was dismissed, affirming the sentence as just and proportionate to the offence.

Orders