Close v R - [2011] NZCA 434

IN THE COURT OF APPEAL OF NEW ZEALAND

CA729/2010
[2011] NZCA 434

BETWEEN ANTHONY HUGH CLOSE
Appellant

AND THE QUEEN
Respondent

Hearing: 25 August 2011

Court: O'Regan P, Ronald Young and Venning JJ

Counsel: C W J Stevenson for Appellant
A M Toohey for Respondent

Judgment: 31 August 2011 at 3 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

_______________________________________________________________

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…

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 Close v R

Details

AGLC: Close v R [2011] NZCA 434
Case: [2011] NZCA 434
Decision Date: 31 August 2011

CaseChat Overview and Summary

The Court of Appeal of New Zealand dealt with the appeal of Anthony Hugh Close against his sentence for drug importation. Mr Close was convicted for importing a total of 277 litres of the controlled drug gamma-butyrolactone (GBL) from China. The total street value of the imported GBL ranged from $660,000 to $1,100,000. Mr Close was sentenced to five years and seven months imprisonment by the District Court. The primary grounds for appeal were that the starting point for sentencing was too high, and that the mitigating factors were not adequately considered.

The legal issues involved the appropriateness of the starting point for sentencing, given the nature and extent of the drug importation, and whether the mitigating factors presented by Mr Close warranted a greater discount on his sentence. The court examined the comparative culpability of Mr Close against the mastermind of the operation, and whether the sentencing guidelines for drug importation were appropriately applied.

The court found that the starting point for sentencing was justified given the commerciality and sophistication of the importation, despite Mr Close not being directly involved in sales. The court considered that the sentencing judge was in the best position to assess the relative culpability of the offenders. Although there was a difference in the starting points for Mr Close and the mastermind, the court did not find this to be an error. The court also found that the discount given for mitigating factors was appropriate and generous, and did not warrant a further reduction in sentence.

Ultimately, the appeal was dismissed, and the original sentence of five years and seven months imprisonment was upheld.

Orders