Close v R
[2011] NZCA 434
•31 August 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA729/2010 [2011] NZCA 434 |
| BETWEEN ANTHONY HUGH CLOSE |
| AND THE QUEEN |
| Hearing: 25 August 2011 |
| Court: O'Regan P, Ronald Young and Venning JJ |
| Counsel: C W J Stevenson for Appellant |
| Judgment: 31 August 2011 at 3 pm |
JUDGMENT OF THE COURT
The appeal is dismissed.
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REASONS OF THE COURT
(Given by O’Regan P)
Introduction
Mr Close pleaded guilty to nine counts of importing the class B controlled drug gamma-butyrolactone (GBL). He was sentenced to imprisonment for five years and seven months.[1] He now appeals against that sentence.
Grounds of Appeal
[1] R v Close DC Wellington CRI-2009-085-5899, 8 October 2010.
The grounds of appeal are:
(a) The starting point was too high because—
(i)GBL is a less dangerous drug than methamphetamine, and the guidelines in R v Wallace and Christie[2] ought to have been applied with caution;
(ii)given the quantity of drug imported, the Judge should not have placed the offending in the top category of offending within the Wallace and Christie guidelines;
(iii)the Judge overstated the appellant’s role and did not sufficiently differentiate the starting point for the appellant from that for the mastermind of the importing operation.
(b)The Judge gave inadequate weight to mitigating factors applying to the appellant.
[2] R v Wallace [1999] 3 NZLR 159.
Before dealing with these points, we briefly set out the factual background and summarise the sentencing remarks of the sentencing Judge, Judge Barry.
Facts
The drug importing operation which led to the charges against Mr Close involved a number of offenders. Between March 2008 and June 2009, 23 packages containing a total of 277 litres were imported into New Zealand from China. The estimated street value of the imported GBL was $660,000 to $1,100,000.
The mastermind of the operation was Jarrod Balderston. Mr Balderston sought the appellant’s help in receiving consignments of the drug, and the appellant did this on seven occasions. The appellant then arranged for others to receive consignments. His counsel in this Court, Mr Stevenson, suggested that the appellant was “at best, little more than a conduit for Balderston’s importation operation”. But the Judge described him as “2IC”.[3] The Judge recorded that Mr Close had been the recipient of seven of the first ten importations and then had gone on to recruit a friend, Mr Bates, to receive subsequent lots. Mr Bates had, in turn, recruited others. However the Judge acknowledged that Mr Close had not been involved in actual sales of GBL, though he must have contemplated that these would occur. The Judge described Mr Close as deserving of a starting point below Mr Balderston, but not by much. He said while Mr Balderston was a ringleader, Mr Close was “a vital cog”.
District Court sentencing
[3] That is, second in command.
The District Court Judge had given a sentencing indication of 3 May 2010, about five months before the date of sentencing.[4] The indication given by the Judge had been a starting point of eight years imprisonment, a discount of 12 months for the appellant’s good character and unblemished record, and a further 25 per cent discount for a guilty plea, leaving an indicated end sentence of somewhere between five years and five years, three months imprisonment.
[4] R v Close DC Wellington CRI-2009-085-5899, 3 May 2010.
Mr Close did not plead guilty immediately, however, and instead sought a discharge under s 347 of the Crimes Act 1961. The application for a discharge was heard on 1 June 2010 and judgment was issued on 9 July 2010 declining the application. Eventually Mr Close accepted the sentence indication on 24 August 2010, more than three months after it had been given. This obviously affected the level of discount for the guilty plea.
At sentencing, the Judge again took a starting point of eight years imprisonment, and again gave a discount of 12 months for Mr Close’s unblemished record and previous good character. Given the delay in the guilty plea, he gave a discount of 20 per cent, noting that that “probably stretches the bounds of permissible leniency”. The end result was a sentence of imprisonment for five years and seven months.
Was the starting point too high?
As noted earlier, there were three aspects to the submission made on behalf of the appellant about the starting point. We will deal with each in turn.
GBL less dangerous than other class B drugs
Mr Stevenson argued that the sentencing guidance provided by Wallace and Christie was given at a time when methamphetamine was still a class B drug, and therefore needed to be applied with considerable caution in cases involving less dangerous drugs.
While we accept that methamphetamine is a particularly pernicious drug, as this Court acknowledged in R v Fatu,[5] we do not have anything before us which would allow us to make any meaningful comparative analysis of different class B drugs. There are sufficient authorities dealing with GBL importations for some guidance to be obtained about sentencing levels for GBL offending. We doubt the utility in trying to produce a graduation of seriousness in relation to class B drug offending, when Parliament has placed all of the relevant drugs within the same statutory classification.
Appropriate band of Wallace and Christie
[5] R v Fatu [2006] 2 NZLR 72.
Mr Stevenson argued that the highest category in Wallace and Christie, attracting starting points of between eight and 14 years, applied only to importations having the highest level of commerciality. He said this required offending involving “massive quantities or prolonged dealing”, citing the terminology used by Tipping J in R v Atkinson.[6]
[6] R v Atkinson CA546/99, 19 April 2000 at [22].
For the respondent, Ms Toohey, pointed to a number of other cases in this Court where the Court has adopted starting points in the highest category of Wallace and Christie for large importations of GBL.[7] She argued that, having regard to the commerciality involved, the degree of sophistication of the enterprise and the fact that there were multiple importations over a period of time, a starting point at the lower end of the highest category of Wallace and Christie was appropriate. She said that the total importation by Mr Balderston and his cohorts was, on a purely value based assessment, one of the highest GBL importations into New Zealand.
[7]Hartman v R [2010] NZCA 90; R v Rys [2007] NZCA 360; R v Stark CA104/06, 31 July 2006 and R v Adams [2008] NZCA 171.
We consider that a starting point of eight years imprisonment was not out of line with earlier authorities and that the Judge’s assessment of the commerciality and sophistication of the importation justified the starting point he took.
The role of the appellant
Mr Stevenson said that a greater differentiation should have been made between the starting point adopted for Mr Balderston and that adopted for the appellant, given that Mr Balderston was the mastermind of the operation. Mr Balderston was sentenced before the appellant, but by the same Judge. In his case the starting point was eight and a half years imprisonment, and the end sentence was five years and nine months, reflecting a 25 per cent discount for Mr Balderston’s guilty plea and the further discount to reflect his previous unblemished record and remorse.
Mr Stevenson argued that Mr Close’s involvement in the present offending was such that his culpability was considerably lower than that of Mr Balderston. He drew a comparison between the comparative starting points applied to Mr Balderston and Mr Close against those applied in relation to the importation involving Mr Rys and Mr Stark, to which we have referred earlier.[8] In the case of Mr Rys, the starting point of 11 years was taken by this Court, whereas the starting point for Mr Stark was eight years, that is three years below that of Mr Rys. Mr Stevenson argued for a similar differentiation in this case.
[8] See footnote 7.
Ms Toohey emphasised that the same Judge sentenced both Mr Balderston and the appellant, and that he was in a good position to judge their comparative culpability. She noted that the Judge described Mr Close as “a vital cog”, and that he expressly applied his mind to the necessary distinction between Mr Balderston and the appellant. She supported the Judge’s analysis. She pointed out that the appellant had not only been the recipient of nearly a third of the importations, he had arranged for others to receive most of the others. Although he was not involved in the sales, he must have known that these would occur. It was notable that $109,000 had been deposited to the appellant’s bank account from unidentified sources between January and June 2009.
While we acknowledge Mr Stevenson’s point that the six month difference in the starting points for Mr Balderston and the appellant appears to underestimate the difference in their roles, we are inclined to the view that this says more about the leniency of the sentencing approach to Mr Balderston than revealing any error in relation to the appellant. It is notable that the starting point for Mr Stark, the comparator for Mr Stevenson’s analysis, was the same as the appellant’s eight years. While there was considerable distinction made between Mr Rys and Mr Stark, the difference in their levels of culpability appeared to be greater than those of Mr Balderston and the appellant. If we were to apply the same level of distinction in the present case the result would be a starting point that was too low in comparison to Wallace and Christie, and the other cases involving GBL to which we have referred.
Ultimately, we are not persuaded that an eight year starting point is outside the permissible range in the present case.
Personal factors
Mr Stevenson argued that an allowance of greater than 12 months should have been made for the unblemished record of the appellant and his lack of offending history. He emphasised the numerous testimonials which had been submitted at sentencing, testifying to the appellant’s good character. In addition he noted that the appellant as a foreign national (he is American) would find the sentence of imprisonment more onerous than a New Zealander, given the isolation from his family. He also argued that some allowance should have been made for Mr Close’s time on bail, which involved a curfew for at least part of the time.
We are not persuaded that a further discount for these matters is warranted in the circumstances. While the Judge did not refer to the additional mitigating factors raised before us, the discount he gave was generous and we do not see a higher level of discount being appropriate even when the additional factors are brought into the equation.
Result
We dismiss the appeal.
Solicitors:
Crown Law Office, Wellington for Respondent
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