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Wilkinson v R [2021] NZCA 438 (3 September 2021)

Last Updated: 10 September 2021

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

The application for an extension of time to appeal is granted.
The appeal against sentence is allowed.

The minimum period of imprisonment of seven years is quashed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

[1] 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]
[2] Mr Wilkinson appeals the imposition of the MPI. There are no other grounds of appeal.
[3] 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

[4] 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.
[5] 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

[6] 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.
[7] 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.
[8] In determining the extent of Mr Wilkinson’s role in the offending, the Judge observed:^[4]

The effect of the jury’s finding and verdict is that it was satisfied beyond reasonable doubt that you either had actual knowledge that the boxes contained methamphetamine or that you were reckless as to whether the boxes contained an illicit substance.

[9] In setting a starting point of 22 years’ imprisonment, the Judge said that a “condign and stern sentence [was] necessary”.^[5]

Mitigating factors

[10] In assessing the mitigating factors, the Judge allowed:

(a) a 10 per cent discount to reflect Mr Wilkinson’s previous good character and lack of criminal convictions in New Zealand and overseas;^[6]

(b) a five per cent discount to reflect the challenges Mr Wilkinson will face as a foreign national in a New Zealand prison;^[7] and

(c) a five per cent discount to take account of the fact Mr Wilkinson’s family and support network reside in the United Kingdom and Thailand and are unable to visit him for the foreseeable future due to COVID-19.^[8]

[11] This produced an end sentence of 17 years and six months’ imprisonment.

MPI

[12] In determining that an MPI was required in this case, the Judge had regard to:

(a) Mr Wilkinson’s willingness to participate “in a substantial commercial‑scale drug importation operation which had the potential to cause very serious social damage to the New Zealand community”;^[9]

(b) Mr Wilkinson’s “essential and important role” in the enterprise;^[10] and

(c) the need to hold Mr Wilkinson accountable for the harm done to the community by his offending and the need to deter others from similar offending.^[11]

[13] The MPI of seven years equated to 40 per cent of the end sentence imposed on Mr Wilkinson.^[12] Absent the MPI, Mr Wilkinson would have been eligible to be considered for parole after serving five years and 10 months in prison. The practical consequence of the MPI is that Mr Wilkinson will have to serve a further 14 months in prison before he is able to apply for parole.

Appeal

[14] In her submissions in support of the appeal against the imposition of an MPI, Ms Ives drew attention to judgments of this Court in which MPIs have been quashed or reduced in relation to appellants whose circumstances fell into one of three categories:

(a) those who were young and with good prospects of rehabilitation;^[13]

(b) those who have a low likelihood of reoffending;^[14] and

[15] Ms Ives also placed emphasis on the evidence that Mr Wilkinson’s offending involved him receiving directions from a co-offender (W) and that he was motivated to support his alcohol addiction.
[16] In addition to the matters we have summarised at [14], Ms Ives placed weight on the following aspects of Mr Wilkinson’s personal circumstances:

(a) his mother is 86 years old; and

(b) he suffers from possible liver disease and hearing issues.

Analysis

[17] We start with the legislation governing the imposition of MPIs. Section 86(2) of the Sentencing Act 2002 states:

86 Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment

...

(2) The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:

(a) holding the offender accountable for the harm done to the victim and the community by the offending:

(b) denouncing the conduct in which the offender was involved:

(d) protecting the community from the offender.

...

[18] In Zhang, this Court emphasised that MPIs must not be imposed as a matter of routine or a mechanistic fashion.^[16] It was explained that “as a general rule, lengthy minimum periods of imprisonment are properly reserved for cases involving significant commercial dealing”.^[17]
[19] This is an example of a case of significant commercial dealing which this Court had in mind in Zhang when indicating what cases might normally warrant the imposition of an MPI.
[20] It is, however, necessary to carefully evaluate the criteria in s 86(2) of the Sentencing Act and Mr Wilkinson’s personal circumstances when determining whether or not the Judge erred when imposing an MPI.
[21] We agree with the sentencing Judge that it was necessary to hold Mr Wilkinson accountable for the harm done to the community by his offending. He was involved in guarding methamphetamine worth approximately $27 million which, if it had reached the streets of New Zealand, would have caused considerable harm to the community. We agree with Ms Ives however, that as Mr Wilkinson’s role was that of a “temporary custodian of the methamphetamine”,^[18] it was therefore probably wrong for the Judge to link Mr Wilkinson with the importation of the methamphetamine when deciding to impose an MPI.
[22] It was also necessary to denounce Mr Wilkinson’s conduct and to deter others from committing a similar offence.
[23] In light of Mr Wilkinson’s age and his previous good record, we also agree that it was unnecessary to be concerned about protecting the community from Mr Wilkinson.
[24] Thus, three of the factors in s 86(2) of the Sentencing Act weigh in favour of the imposition of an MPI in this case.
[25] Against those considerations, we revisit Mr Wilkinson’s personal circumstances. The pre-sentence report showed that Mr Wilkinson had a comfortable upbringing in England. He secured a trade qualification, married and had started a family. Tragically, his wife was killed in an accident. That appears to have triggered Mr Wilkinson’s heavy dependence upon alcohol. He then moved to Thailand where he lived for about 30 years.
[26] Mr Wilkinson’s motivation for becoming involved in the offending appears to have been his desire to address financial difficulties that he faced. He obviously saw his involvement with the drug offending as being a quick fix to his financial troubles.
[27] The factor that causes us the most concern in relation to this appeal is that the sentence imposed was, by the Judge’s own acknowledgement, stern and condign. In addition to a sentence at the highest end of that which was available, the Judge has imposed an MPI, albeit one at the lower end of the scale available.
[28] The criteria in s 86 of the Sentencing Act were fully reflected in the high starting point and the consequential condign and stern sentence imposed.
[29] We also consider it was unnecessary to impose an MPI where the practical effect is to increase by 14 months the period Mr Wilkinson must serve in prison before he is considered eligible for parole. Fourteen months is significant to Mr Wilkinson. It is, however, difficult to justify an MPI of 40 per cent when the practical consequence is a minimum period of imprisonment that is relatively close to the period that Mr Wilkinson would otherwise have served before being eligible to apply for parole.
[30] In these circumstances, we think it was an error for an MPI to be imposed in the circumstances of this case.