Wilson v The Queen - [2014] NZCA 584

IN THE COURT OF APPEAL OF NEW ZEALAND

CA725/2012
[2014] NZCA 584

BETWEEN	TREVOR JOHN MOMO WILSON Appellant
AND	THE QUEEN Respondent

Hearing:	12 November 2014
Court:	Miller, Lang and Clifford JJ
Counsel:	K H Cook for Appellant M J Lillico for Respondent
Judgment:	1 December 2014 at 3.30 pm

JUDGMENT OF THE COURT

AApplication for an extension of time granted.
BThe appeal against conviction is dismissed.
CThe appeal against sentence is allowed.
DThe sentences of imprisonment are quashed and sentences of nine months home detention on each charge are imposed in their place. Those sentences are subject to the conditions specified at [29] of the reasons.

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REASONS OF THE COURT

(Given by Lang J)

Mr Wilson pleaded guilty in the High Court to charges of supplying the class A controlled drug lysergide (LSD), conspiring to sell a class C controlled drug, namely party pills, selling cannabis, conspiring to sell cannabis and possession of LSD. The guilty pleas followed a sentence indication hearing before Mackenzie J on 30 July 2012.[1]
[1]R v Wilson HC Nelson CRI-2012-042-684, 30 July 2012.
On 13 September 2012, Mackenzie J sentenced Mr Wilson to an effective term of two and a half years imprisonment.[2]
[2]R v Wilson [2012] NZHC 2356.
Mr Wilson originally appealed against conviction but abandoned that appeal at the commencement of the hearing in this Court. The appeal against conviction is accordingly dismissed.
Mr Wilson now applies for an extension of time to appeal against the sentence the Judge imposed. Given the view we take of the merits of the appeal, we grant the application for an extension of time.

The offending

The charges to which Mr Wilson pleaded guilty arose out of a wide-ranging police undercover operation. The operation revealed that Mr Wilson and two associates sold five tabs of LSD to an undercover police officer on 7 October 2010. Mr Wilson was the person who supplied the drugs to the officer, but the sale had been arranged earlier by one of his associates. Mr Wilson received the sum of $200 for the drugs. He later told the police he did not make any money out of the transaction, and was just helping his associate out.
During the course of the operation the police intercepted telephone communications between Mr Wilson and his associates. These revealed that during November 2010, Mr Wilson had purchased party pills for himself and his associates. These communications gave rise to the charge of conspiracy to supply party pills.
The intercepted telephone communications also revealed that on 22 November 2010, Mr Wilson had obtained eight one ounce bags of cannabis to sell to others. These contained a significant amount of leaf material, and this meant Mr Wilson had been required to sell one bag of cannabis for a reduced price. Mr Wilson discussed the poor quality of the cannabis with his associate, and said he had made a decision not to use that particular supplier again. These communications led to the charge 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 Wilson v The Queen

Details

AGLC: Wilson v The Queen [2014] NZCA 584
Case: [2014] NZCA 584
Decision Date: 1 December 2014 at 3.30 pm

CaseChat Overview and Summary

Trevor John Momo Wilson, the appellant, appealed against his sentence imposed by the High Court for supplying LSD, conspiring to sell party pills, selling cannabis, conspiring to sell cannabis and possession of LSD. The appeal against his conviction was dismissed, and the appeal against his sentence was allowed. The Court quashed the sentences of imprisonment and imposed sentences of nine months home detention on each charge. The Court granted the application for an extension of time to appeal against the sentence.

The legal issues before the Court were whether the Court should take into account significant events that occurred after the date on which the sentence was imposed, and if so, whether it was appropriate to reduce the sentence to one of less than two years imprisonment to enable the Court to impose a sentence of home detention. The Court held that the unusual circumstances of the case justified the reduction of the sentence to recognise the positive developments in the appellant's personal life during the lengthy period that has now passed since the date on which he was sentenced. The Court considered that the end sentence of two years, six months imprisonment should be reduced by six months to reflect the factors to which the Court referred, which produces a sentence of two years imprisonment, enabling the sentence of home detention to be considered. The Court concluded that a sentence of home detention is now appropriate.

The Court allowed the appeal against sentence. The sentences of imprisonment are quashed. In their place, sentences of nine months home detention on each charge are imposed in their place subject to the following conditions: (a) the sentences are to take effect as soon as the EM bail assessors are able to install the necessary equipment in the appellant’s home address; (b) until that time the appellant is to remain on bail on existing terms; (c) the appellant is to be present at his home address at a time and date specified by his probation officer so that the electronic monitoring equipment can be installed; (d) once the sentences commence, the appellant is to remain at his home address and be subject to electronic monitoring at that address; (e) the appellant is not to leave the address other than to attend appointments that have been arranged in advance with his probation officer; (f) the appellant is not to be in possession of, or consume, alcohol or non-prescription drugs for the duration of the sentence; (g) the appellant is to comply with all directions given by his probation officer (including any direction requiring him to undertake drug screening tests); and (h) the appellant is to attend and complete any drug and alcohol treatment programmes that his probation officer may direct.

Orders