THE QUEEN v GARY VICTOR MARTIN [2001] NZCA 200 (4 July 2001)

IN THE court of appeal of new zealand

ca 91/01

THE QUEEN

V

GARY VICTOR MARTIN

Hearing:	27 June 2001
Coram:	Blanchard J Heron J Randerson J
Appearances:	C J Tennet for Appellant J C Pike for Crown
Judgment:	4 July 2001

judgment of the court DELIVERED BY HERON ACJ

[1] This is an appeal against conviction and sentence.The appellant was convicted that on or about 21 May 2000, at Auckland, with Rocky Pulete, imported into New Zealand a class B controlled drug namely amphetamine.He was sentenced to four years imprisonment to be served cumulatively with other sentences.

[2] On 21 May 2000 a parcel from Germany addressed to Mr G Briggs, Cobra Paint and Panel, 80 The Mall, Onehunga was intercepted at the International Mail Centre in Auckland.The parcel was described as a car cleaning set.Found in the parcel was a very large quantity of methamphetamine powder in two packages containing 494 grams each.The parcel was repacked and on 24 May was delivered to the addressee.

[3] Sydney Briggs, the half brother of the appellant, worked at the Onehunga address and had done so for some four years.Apparently the business at that address no longer went under the name shown on the parcel, and Mr Briggs thought the parcel was for the appellant because of the use of the initial G in the name of the addressee.

[4] Prior to the arrival of the parcel, the appellant had an arrangement with Sydney Briggs that he would take his car into be repaired, and at that time, told him that at some stage parts for the car would be delivered as well.When he had not received the car, he visited the appellant at Mt Eden Prison, where the appellant was on remand with his co-offender Rocky Pulete.

[5] Mr Pulete admitted arranging the importation of the methamphetamine and pleaded guilty.The case against the appellant was that he had assisted in the importation by providing an address from which the parcel could be easily uplifted, once it had entered the country.The case against him was that he was a party by assisting.

[6] Evidence was given of certain activity in the prison on the day the parcel was delivered.A prison officer observed something being concealed in a drain pipe and it was discovered two cellphones had been placed there by the appellant.The appellant it would seem, was then by reason of being confined in a certain area, unable to make illicit use of the cellphone, but Mr Pulete was.Mr Briggs said that he received a phone call, not from the appellant, but presumably from Mr Pulete the next day, asking if the parcel had arrived.He was told by the caller to forward it to another address.Mr Briggs called a courier and had the parcel delivered to the address as directed.

[7] A prison officer gave evidence that Mr Pulete and the appellant saw each other on a regular basis and that there was a friendship between them.That in effect was the evidence available to the Crown in alleging the appellant had assisted in the importation by providing the address.

[8] Mr Tennet insisted on pursuing the appeal both in his notice of appeal and before us on the basis that the conviction was against the weight of evidence. The only ground for an appeal on that basis is contained in S.385(1)(a) of the Crimes Act 1961 which reads:

(1)On any appeal against conviction the Court of Appeal shall allow the appeal if it is of opinion--

(a)That the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or

[9] The Judge in his summing up told the jury that it was a case based on inferences but the Judge also said on a S.347 application made during the trial:

I have concluded there is evidence to go to the jury to support at least, Mr Martin's involvement as a party.That evidence includes the fact that Mr Martin's half brother was told that car parts would be arriving.The fact that Mr Martin and Mr Pulete had access to each other.They both had cell phones. The fact that the parcel was addressed to G Briggs at his half brother's address.And that G happens to be Mr Martin's first name, where as Briggs is his half brother's surname.It seems that an inference the jury could draw would be that it is not likely that the drugs package would have been sent to Mr Briggs' address without some warning to him and in my view the jury could conclude that evidence of that warning existed in what Mr Martin said to his half brother about a package arriving.So I have concluded that there is sufficient evidence to go to the jury in relation to Mr Martin being a party to the importing charge.

[10] The Judge's conclusion was obviously correct.No evidence was called by the appellant and the situation did not change during the trial.That disposes of the first ground of appeal which was put incorrectly on the basis that the appeal was against the weight of evidence.There was plainly evidence to support the conviction as required by S.385(1)(a).

[11] Counsel complains about the summing up, suggesting that the Judge misdirected the jury on the elements of importing and the provisions of S.66 Crimes Act 1961.The Judge simply told the jury that `imported' is to be given its ordinary meaning of bringing something into the country from abroad, and set out the ingredients of being a party, giving practical illustrations to the jury on what is meant by that.He also dealt with the necessary state of mind for a party in the circumstances.We see nothing in the criticisms that suggests there was something flawed in the direction on parties pursuant to S.66 and Mr Tennet was unable to point us to any.Having reviewed the Judge's directions, all the necessary elements of being a party, including the necessary mens rea, were correctly addressed.

[12] Other various criticisms as to the laying of a conspiracy charge in respect of which the appellant was discharged, and not being tried separately were also advanced.There is nothing in these points.No separate trial was asked for.The Judge compartmentalised the cases against all of the accused, dealing with the appellant first, and in our view there was no risk of any cross-over or contamination as suggested by Mr Tennet.

Sentence

[13] On sentence the Judge referred to the fact that the appellant was a committed career criminal.He thought that the jury's verdict accepted that he knew the nature of the drugs being imported.He applied sentencing principles in R v Wallace [1999] 3 NZLR 159.The principal offender Mr Pulete had received a sentence adjusted for the plea of guilty and for totality amounting to 14 years of which five years was for the drug offending, the sentencing Judge describing that sentence as being an artificially abated figure.It is obviously of no assistance by way of comparison with the sentence of four years actually received by the appellant.

[14] The Judge in the present case said:

If you were facing this charge alone and you were not in custody my conclusion would be that about six years would be the appropriate sentence to impose. However you are in custody and I have concluded that the appropriate way to look at your sentencing is to consider what total sentence would have been applied to you if you had been before the Court on the conspiracy to commit aggravated robbery and the drug importation charge, and I have concluded that the total sentence that would have been appropriate would have been eight years.That being the case, I sentence you on the present charge to four years imprisonment to be served cumulatively on your present sentence.

[15] In effect the comparison is ten years for Pulete and six years for the appellant if they had been sentenced on the drug offending separately, before allowing for Pulete's plea of guilty.There is no unjustified disparity and no question of the sentence being upset on any other grounds.

[16] Accordingly the appeals against conviction and sentence are dismissed.

Solicitors:

Crown Law Office, Wellington for Crown

C J Tennet, Tauranga for Appellant