Wilkinson v The Queen - [2021] NZCA 438

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA181/2021
[2021] NZCA 438

BETWEEN	NEIL JOHN WILKINSON Appellant
AND	THE QUEEN Respondent

Hearing:	24 August 2021
Court:	Collins, Duffy and Peters JJ
Counsel:	A M M Ives for Appellant R M A McCoubrey and J R Ah Koy for Respondent
Judgment:	3 September 2021 at 11.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal against sentence is allowed.
CThe minimum period of imprisonment of seven years is quashed.

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REASONS OF THE COURT

(Given by Collins J)

Introduction

Mr Wilkinson was found guilty of possessing 193 kilograms of methamphetamine for the purposes of supply. He was sentenced by Davison J to 17 years and six months’ imprisonment, with a requirement he serve a minimum period of imprisonment (MPI) of seven years before he is eligible to be considered for parole.[1]
[1]R v Wilkinson [2021] NZHC 185 [Sentencing notes].
Mr Wilkinson appeals the imposition of the MPI. There are no other grounds of appeal.
The appeal was filed out of time. The reasons for the delay have been explained and no prejudice is caused to the Crown by the delay. We therefore grant the application to extend time to appeal.

Background

At the time of his offending Mr Wilkinson was 60 years old. He is a British national, who had lived and worked in Thailand for approximately 30 years. In June 2019, Mr Wilkinson travelled to New Zealand, ostensibly for a holiday. In fact, he came to New Zealand to participate in the criminal activities of an international drug syndicate. That syndicate paid for Mr Wilkinson’s airline ticket and his hotel accommodation in Auckland.
Mr Wilkinson initially stayed in hotels in Auckland where he maintained contact with two co-offenders who had travelled to New Zealand from other countries. On 19 July, one of the co-offenders (C), flew to Australia. Mr Wilkinson moved into the apartment that had been occupied by C in order to safeguard 193 kilograms of methamphetamine that had been stored in that apartment. Mr Wilkinson continued to live in the apartment until 31 July, when the police arrested him. The police found the methamphetamine worth approximately $27 million stored in boxes in a wardrobe of the apartment.

Sentencing decision

Starting point

The quantity of methamphetamine involved in this case placed Mr Wilkinson well within band five as defined in this Court’s guideline judgment in Zhang v R.[2] As a consequence, the indicated starting point was between 10 years and life imprisonment.
[2]At [20], citing Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
In assessing Mr Wilkinson’s role, the Judge evaluated the evidence and determined Mr Wilkinson performed a “lesser” role in the offending.[3] This was primarily based on Mr Wilkinson’s role as a custodian of the methamphetamine for 12 days and because he was subject to the control and directions of other members of the syndicate.
[3]At…

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 Wilkinson v The Queen

Details

AGLC: Wilkinson v The Queen [2021] NZCA 438
Case: [2021] NZCA 438
Decision Date: 3 September 2021 at 11.30 am

CaseChat Overview and Summary

In the New Zealand Court of Appeal, the case of Wilkinson v The Queen involved Mr Neil John Wilkinson, who had been found guilty of possessing 193 kilograms of methamphetamine for the purposes of supply. The court sentenced him to 17 years and six months' imprisonment with a requirement that he serve a minimum period of imprisonment (MPI) of seven years before being eligible for parole. Wilkinson appealed the imposition of the MPI. The appeal was filed out of time, but the court granted an extension to appeal as no prejudice was caused to the Crown. The appeal was against the severity of the sentence, specifically the imposition of the MPI. The court found that while the sentence was stern and condign, the imposition of the MPI was an error as it was relatively close to the period Wilkinson would have otherwise served before being eligible for parole. The appeal against the sentence was allowed, and the MPI of seven years was quashed.

Orders