The Queen v Eardley-Wilmot [2008] NZCA 213 (8 July 2008)

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The Queen v Eardley-Wilmot [2008] NZCA 213 (8 July 2008)

Last Updated: 21 July 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA120/2008

[2008] NZCA 213

THE QUEEN

v

MEGATRON EARDLEY-WILMOT

Hearing: 2 July 2008

Court: O'Regan, Ellen France and Venning JJ

Counsel: V C Nisbet for Appellant
M E Ball for Crown

Judgment: 8 July 2008 at 10.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1] The appellant was sentenced on 22 February 2008 by Dobson J to an effective term of imprisonment of six years and six months in respect of three drug related offences: HC WN CRI 2008-085-684. He appeals against sentence on the basis that the term is manifestly excessive having regard to the nature of the offending and his personal circumstances.

Factual background

[2] The first two charges arose from events in 2003. In relation to this period, the appellant pleaded guilty to a charge of conspiracy to import a class A controlled drug, namely, methamphetamine, and to a charge of importing a class B controlled drug, namely, MDMA or ecstasy.
[3] The third offence was committed in 2005 and involved importing a class A controlled drug, namely, LSD.
[4] The circumstances of the offending in 2003, as described by the sentencing Judge are as follows:

[4] ... [The appellant] and two associates, Nicholas Ferry and Christian Mitchell embarked on plans to import drugs to New Zealand. In July that year, [Mr] Mitchell opened eight post office boxes in Wellington under fictitious names and addresses. [The appellant] recorded the numbers and keys of those boxes in [Mr Mitchell’s] notebook ... . [Mr] Ferry transferred NZ$50,000 to associates in Canada for the inferred purpose of purchasing drugs. [The appellant] and [Mr] Ferry then travelled to Canada and were together in Vancouver, and on 3 September 2003 [Mr] Ferry sent to [Mr] Mitchell, who had remained in New Zealand, 84 grams of Methamphetamine. That importation was intercepted on 12 September 2003 and [the appellant’s] part in those arrangements forms the basis of the conspiracy charge.

[5] Also in early September 2003, [the appellant] packaged for sending from Canada to New Zealand 56 grams of Ecstasy in powder form ... [with] a street value of some $22,000. [The appellant] packed the powder into two so-called “ounce bags”. Those packages were sent via airmail envelopes to the post office boxes that had been opened by [Mr] Mitchell, but were intercepted by Customs on 10 September 2003. [The appellant’s] part in that is the basis for the importation of Ecstasy charge.

[5] Mr Ferry and Mr Mitchell were also involved in another offence of importing methamphetamine about that time to which the appellant was not a party. They were both later arrested and ultimately convicted.
[6] The appellant remained at large in Canada for a further four years. In March 2005 he made contact with an associate in Wellington, Awos Arhaim, about importing drugs into New Zealand. The appellant provided advice to Mr Arhaim about avoiding detection for drug importations, arranged a “dummy” run of an envelope with untainted paper, and then sent some 200 tabs of LSD from Canada to New Zealand. The street value of the drugs was approximately $8,000. The drugs were sent via a courier company using false names for the recipient and senders. The appellant asked Mr Arhaim to pay for the drugs via Western Union transfers of $950 each, keeping them under a threshold where identification was required. The courier package was intercepted and Mr Arhaim was arrested.
[7] The appellant was not arrested until July 2007 and was deported by Canadian authorities to face these three charges.

Sentencing remarks

[8] Dobson J treated the 2003 offending as effectively one transaction. The Judge took that offending as the lead offence given the value of the transaction ($100,000) and the combination of MDMA and methamphetamine offending. The Judge also determined that a cumulative sentence was appropriate for the 2005 offending because it occurred some 20 months later, involved different drugs, and a different co-offender. Further, the Judge noted that by that time the appellant was aware that Messrs Ferry and Mitchell were being dealt with by the New Zealand courts.
[9] In setting a starting point for the 2003 offending, Dobson J saw the co-offender Mr Ferry as the most comparable case. In sentencing Mr Ferry, Baragwanath J had taken a starting point of 11 years imprisonment: HC AK CRI 2004-44-6481 3 May 2005. Dobson J reduced the starting point for the appellant to ten years to reflect the lesser quantity of methamphetamine involved. The Judge made a further reduction of 30 per cent to reflect the fact this was a conspiracy and so took a starting point of six years and six months imprisonment.
[10] On the 2005 LSD importation, given the appellant’s more prominent role, the Judge took a starting point of three years and six months imprisonment. That compared to the starting point Gendall J adopted in relation to Mr Arhaim of three years imprisonment: HC WN CRI 2005-485-123 15 September 2005.
[11] The Judge treated as aggravating factors in relation to the 2003 offending the high level of premeditation and degree of sophistication and the level of commerciality involved.
[12] The mitigating factors the Judge identified were the appellant’s prompt guilty plea after his apprehension and the absence of any prior offending. From a total starting point of ten years imprisonment over the 2003 and 2005 offending, the Judge gave a discount of 30 per cent.
[13] Dobson J then reviewed the overall sentence from a totality perspective. To meet the totality principle, a further reduction of six months imprisonment was seen as necessary to reflect the fact that this was the first offending for the appellant. Accordingly, in relation to the 2003 offending, the Judge imposed a sentence of four years and three months imprisonment and one of two years and three months imprisonment for the 2005 offending.

The appeal

[14] Two principal submissions are made by the appellant. The first is that the ten year starting point adopted by the Judge was too high. In that context, the appellant submits that Dobson J was wrong to compare the appellant’s culpability with that of Mr Ferry. If anything, the appellant argues, his culpability was closer to that of the third co-offender, Mr Mitchell who received a four year term of imprisonment. In that context, Mr Nisbet emphasised the lack of financial rewards for the appellant from the transaction particularly in contrast to Mr Ferry.
[15] Second, the appellant submits that insufficient discount was given for the mitigating factors. Particular emphasis is placed on the early guilty pleas which were entered before depositions, previous good history, and the rehabilitative efforts made.

Evaluation

[16] We consider that the ten year starting point was within the available range. The appellant made an agreement to import class A drugs and, while the amounts involved are not huge, they were of some significance. The combination of drugs involved also has to be recognised. Further, it is not suggested by this appellant that the starting point adopted in relation to Mr Ferry was too high and we agree with the Crown that he was the appropriate comparator, not Mr Mitchell.
[17] Mr Ferry was sentenced on the basis of four counts of importation of methamphetamine, importation of MDMA and possession of LSD. The final sentence for Mr Ferry (six years and 40 days imprisonment) was described by Baragwanath J at [17] as “merciful” and reflected various mitigating factors. As Dobson J observed, Mr Ferry’s offending involved actual importation and a greater amount of methamphetamine than that in which the appellant was involved. Dobson J made allowance for the larger quantity of methamphetamine involved in Mr Ferry’s case in reducing the starting point by a year. The Judge then discounted the starting point by 30 per cent to recognise the fact that this was a conspiracy.
[18] Mr Mitchell, by contrast, in terms of importing charges was sentenced after trial only in relation to a class B drug: HC AK CRI 2004-044-6481 7 October 2005. Potter J in sentencing Mr Mitchell took a starting point of five years for the lead charge of importing ecstasy and then added six months to that starting point to reflect the totality of the offending. After a discount for mitigating factors, a final sentence of four years imprisonment was imposed. The Judge at [28] described Mr Mitchell as a “crucial player” but on a lesser scale than the appellant and Mr Ferry. Essentially, Potter J saw Mr Mitchell as “perform[ing] what was required at the New Zealand end” (at [28]).
[19] No real issue is taken by the appellant with the sentence imposed in relation to the LSD charge.
[20] As to the discount for mitigating factors, credit was given for the early guilty plea and good character. A discount of 30 per cent for those factors and the acknowledged remorse and efforts towards rehabilitation was within the available range. In any event, the Judge made a further reduction of six months from the overall sentence on a totality basis and to reflect the fact that the appellant was a first offender.
[21] We are satisfied that, viewed on a totality basis, the end sentence was appropriate. The appellant was involved in drug importations in commercial quantities on two quite separate occasions. An effective sentence of six years and six months imprisonment in those circumstances was not manifestly excessive.
[22] We add that while we have no criticism of the 30 per cent discount given in this case for the fact this was a conspiracy, there is no rule requiring an automatic discount of that amount. In the context of consideration of sentencing levels for manufacturing methamphetamine, it has been accepted by this Court that a reduction of the sentencing levels is appropriate where the charge is conspiracy rather than manufacturing: R v Te Rure [2007] NZCA 305 at [25]. This is consistent with the different maximum penalties but the extent of adjustment should depend on the assessment of culpability in each case. That assessment will involve consideration of factors such as the “nature and scope of the conspiracy and the extent to which the offender participated and persisted in it”: R v Henry [1997] 1 NZLR 150 at 152 (CA).
[23] For these reasons, the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington