The Queen v Wright - [2009] NZCA 52

IN THE COURT OF APPEAL OF NEW ZEALAND
CA653/2008
[2009] NZCA 52
THE QUEEN
v
DAVID STEPHEN WRIGHT
Hearing:16 February 2009

Court:Ellen France, Harrison and Cooper JJ
Counsel:C P Comeskey for Appellant

B R Northwood for Crown

Judgment:5 March 2009 at 11.30 am

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.
REASONS OF THE COURT
(Given by Cooper J)
[1]       The appellant pleaded guilty on arraignment to three counts of supplying the class A controlled drug methamphetamine. John Hansen J sentenced him to two and a half years on each charge, the sentences to be served concurrently. He now appeals against sentence.
Background
[2]       On 11 June 2007 the appellant arranged to supply 7.8 grams of methamphetamine to a prisoner at Mt Eden Prison. It appears that only one gram of the methamphetamine arrived there, others having taken a cut along the way. During a police interview following his arrest on 28 June 2007 the appellant admitted that on another occasion he had handed over a package containing one gram of methamphetamine to a woman, understanding that it too was destined for the inmate at the prison.
[3]       The third charge also involves supplying the inmate. The appellant arranged to make the supply in a telephone discussion with the intended recipient on 18 June 2007. On 21 June, he handed 3.8 grams of methamphetamine to a Ms Haumaha, for delivery to the prisoner. Ms Haumaha duly delivered the drugs to the prison, hidden inside a newspaper in accordance with arrangements made by text messaging. The messages were intercepted, and prison authorities examined the newspaper. They found the methamphetamine in a plastic bag concealed in the newspaper.
[4]       Ms Haumaha was charged with conspiracy to supply a Class A controlled drug. She pleaded guilty at an early stage and was sentenced to 12 months’ home detention. There was no dispute that the appellant had in fact supplied a total of 12.6 grams of methamphetamine to three individuals on three different occasions. Not all of those drugs ended up at their intended destination. However, John Hansen J regarded the fact that the intended recipient in each case was a serving prisoner, as a serious aggravating factor.
The sentence
[5]       John Hansen J found that the appellant had owed money to the prisoner who had persuaded him to supply him with the methamphetamine in return for reducing his indebtedness. He noted that the author of the pre-sentence report thought that the appellant had a high level of motivation to address the factors that had contributed to the offending, and that the appellant had distanced himself from his former associates. However, at [8], the Judge said:
There is a very serious aggravating feature in this case. While, as your counsel has properly put forward, there was no commerciality in your dealings, the drugs were for supply to prisoners. You were aware of the ultimate destination of these drugs. The mitigating factor is that you pleaded guilty. That apparently was not until call-over in the…

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 Wright

Details

AGLC: The Queen v Wright [2009] NZCA 52
Case: [2009] NZCA 52
Decision Date: 5 March 2009

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal against sentence by David Stephen Wright, who had pleaded guilty to three counts of supplying the controlled drug methamphetamine. Wright arranged for the supply of methamphetamine to a prisoner at Mt Eden Prison on three separate occasions. The total amount of methamphetamine involved was 12.6 grams. The Crown argued that the intended recipient being a prisoner was a serious aggravating factor. The sentencing Judge, John Hansen J, determined a starting point of three and a half years, but allowed a 25% reduction for the guilty plea, rehabilitation efforts, and co-operation with the police. This resulted in a final sentence of two and a half years, to be served concurrently. Wright appealed against the sentence, arguing that the Judge had given insufficient credit for mitigating circumstances and that he should have been sentenced to home detention instead of imprisonment.

The Court of Appeal dismissed the appeal, finding that the final sentence of two and a half years was appropriate. The Court noted that even if the guilty plea had been entered at an earlier stage, the final sentence would still have been within the available range, considering the amount of methamphetamine involved and the fact that it was intended for a prison inmate. The Court also found that the Judge had rightly rejected the submission that home detention would be an appropriate sentencing response, given the circumstances of the case.

The Court concluded that there was no error in the Judge's assessment of the mitigating factors and that the sentence imposed was not clearly excessive. The appeal was dismissed, and the original sentence of two and a half years imprisonment was upheld.

Orders