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Wallace v The Queen

Wallace v The Queen

Case [2015] NZCA 571 26 November 2015

Possession for Supply

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA16/2015
[2015] NZCA 571

BETWEEN	SANDRA WALLACE Appellant
AND	THE QUEEN Respondent

CA111/2015
BETWEEN	VANA LEE DOWNS Appellant
AND	THE QUEEN Respondent

Hearing:	3 November 2015
Court:	Stevens, Fogarty and Mallon JJ
Counsel:	C B Wilkinson-Smith for Ms Wallace M A Edgar for Ms Downs J E Mildenhall for the Crown
Judgment:	26 November 2015 at 10.15 am

JUDGMENT OF THE COURT

AMs Wallace’s appeal against conviction and sentence is dismissed.
BMs Downs’ appeal against sentence is allowed. Her sentence of four years’ imprisonment is quashed. A sentence of three years and two months’ imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Introduction

Ms Downs and Ms Wallace were charged in relation to a package of methamphetamine imported from Thailand to New Zealand. Ms Downs pleaded guilty to and was convicted of possession of methamphetamine for supply.[1] She was sentenced by Judge Johns to four years’ imprisonment in the Waitakere District Court.[2] Ms Wallace was convicted following trial of importing methamphetamine and possession of methamphetamine for supply.[3] She was sentenced to seven years’ imprisonment alongside Ms Downs.[4] Ms Wallace appeals her conviction on the possession for supply charge.[5] Ms Wallace and Ms Downs each appeal against their sentences.

The facts

[1]A charge of importation was withdrawn on her guilty plea to the other charge.

[2]New Zealand Police v Downs DC Waitakere CRI-2011-096-4926, 22 December 2014 at [26].

[3]Misuse of Drugs Act 1975, s 6(1)(a) and (f) (maximum penalty of life imprisonment).

[4]New Zealand Police v Downs, above n 2, at [20].

[5]There is no appeal against the importation charge.

The charges arose out of a package sent from Thailand to New Zealand, with a track and trace number, to a Mary Kingi at an Auckland address. On its arrival at the New Zealand Post International Mail Centre on 24 March 2011 it was examined by the New Zealand Customs Service (Customs). It was found to contain a statue and, inside that statue, a plastic bag containing 197 grams of white powder. The white powder was removed for testing. Customs subsequently added five grams of that white powder to an inert white powder, placed the new mixture into the statue, and repackaged the parcel.
At 10 am on 28 March 2011 a woman identifying herself as Mary Kingi called the courier company to enquire about the package. She referred to its track and trace number and asked for it to be delivered to the listed Auckland address. She gave a contact mobile number. Customs discovered that this number did not exist. A woman called at 1 pm that day again enquiring about the package. She left another contact mobile number. Customs obtained and supplied to the police text data for that number for the period between 1 and 27 March 2011. Amongst other things, the texts included one from Thailand referring to the track and trace number. Other texts identified Ms Wallace as the user of…

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 Wallace v The Queen

Details

AGLC: Wallace v The Queen [2015] NZCA 571
Case: [2015] NZCA 571
Decision Date: 26 November 2015

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard the appeals of Sandra Wallace and Vana Lee Downs against their convictions and sentences for drug trafficking offences. Sandra Wallace appealed her conviction for possession of methamphetamine for supply and her sentence. Vana Lee Downs appealed her sentence only. The appeals followed their convictions for their involvement in the importation of methamphetamine from Thailand to New Zealand in 2011. Sandra Wallace was convicted of importing the drugs and possessing them for supply, while Vana Lee Downs was convicted solely of possessing the drugs for supply. The appeals raised issues concerning the application of statutory presumptions, the adequacy of directions to the jury, and the appropriateness of the sentences imposed.

The court first considered Sandra Wallace's appeal against her conviction for possession for supply, focusing on whether the trial judge correctly applied the statutory presumption that possession of five grams or more of methamphetamine is presumed to be for the purposes of supply. The court noted that the quantity of methamphetamine in its pure form in the package was less than five grams at the time Sandra Wallace was alleged to have had possession, which would have potentially negated the presumption. However, the court found that the appeal was not well-founded as the defence did not challenge the quantity of drugs in its submissions, and the jury's verdict indicated they were satisfied beyond reasonable doubt that Sandra Wallace was involved in the drug supply, regardless of the quantity issue.

Next, the court examined the adequacy of the trial judge's directions to the jury concerning party liability in relation to the possession for supply charge. Counsel for Sandra Wallace argued that the trial judge failed to properly direct the jury on the concept of party liability under the Crimes Act 1961. The court found the jury directions confusing and incorrect but concluded that there was no risk of a miscarriage of justice as the jury's verdict indicated they found Sandra Wallace guilty based on questions one and two of the question trail, which did not require consideration of party liability.

The court then turned to the sentencing appeals. Sandra Wallace argued that her sentence should have been reduced to account for mitigating factors such as her improved personal circumstances, concessions made during the trial, and the lengthy period between the charges and the trial. The court found that the judge appropriately considered these factors and concluded that no discount was warranted. Regarding Vana Lee Downs' sentence appeal, the court found that the starting point for her sentence was too high, given her significantly lesser role in the offending compared to Sandra Wallace. The court accepted that Vana Lee Downs acted as a "catcher" at the direction of Sandra Wallace and her partner, with no evidence of her profiting from her involvement. The court substituted a sentence of three years and two months’ imprisonment for Vana Lee Downs, finding her original four-year sentence manifestly excessive.

In conclusion, the Court of Appeal dismissed Sandra Wallace's appeal against conviction and sentence but allowed Vana Lee Downs' appeal against her sentence. The court substituted a sentence of three years and two months’ imprisonment for Vana Lee Downs while upholding Sandra Wallace's seven-year sentence.

Orders