Hunt v New Zealand Customs Service
[2014] NZHC 1706
•21 July 2014
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2014-419-28 [2014] NZHC 1706
BETWEEN KYLE WIRIHANA HUNT
Appellant
AND
NEW ZEALAND CUSTOMS SERVICE Respondent
CRI-2014-419-29
BETWEEN JASON EDWARD EVANS Appellant
ANDNEW ZEALAND CUSTOMS SERVICE Respondent
Hearing: 1 July 2014 Counsel:
P J A Buckle for Appellant Hunt
G D Prentice for Appellant Evans
J M O'Sullivan for RespondentJudgment:
21 July 2014
JUDGMENT OF GODDARD J
This judgment was delivered by me on 21 July 2014 at 4.00 pm, pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Public Defence Service, Hamilton for Appellant Evans
Crown Solicitor’s Office, Hamilton for Respondent
HUNT v NEW ZEALAND CUSTOMS SERVICE [2014] NZHC 1706 [21 July 2014]
Introduction
[1] The appellants were jointly charged with a third offender, Ms Dunn.
[2] Mr Hunt pleaded guilty to two single offences involving importation, of a class C controlled drug, both committed on 4 October 2012. He also entered guilty pleas to a further five charges of importation of a class C controlled drug. Three of those charges were representative. In total, Mr Hunt admitted to a total of 19 importations over a five month period amounting to 2.1073 kilograms of class C controlled drugs.
[3] Mr Evans entered guilty pleas in relation to five charges of importation of a class C controlled drug, three of which were representative. Mr Evans admitted to a total of 12 importations during the same period, which related to 1.548 kilograms of various class C controlled drugs.
[4] Mr Hunt and Mr Evans were each sentenced to three years and eight months’
imprisonment. Ms Dunn was sentenced to 11 months’ home detention.
[5] Both appellants now appeal against their sentences on similar grounds. The appeals were heard together.
Facts
[6] Between October 2012 and March 2013, the New Zealand Customs Service intercepted 19 packages containing a series of controlled drug analogues. The estimated street value, if sold as pills for $10 per pill, would be between $215,900 and $1,333,676.
[7] Each of the defendants made electronic money transfers via Western Union. Between May 2012 and January 2013 Mr Hunt made 18 payments totalling $15,674 to China and the United Kingdom. Mr Evans made payments of $477.32 to China. Ms Dunn made 30 payments totalling nearly $17,000 at the request of Mr Hunt. These transfers are believed to be linked to the sale and distribution of the controlled drugs imported in these packages.
[8] During a search of Mr Evans’ house Customs officers found six bags of unknown white powder, a zip lock bag containing six pills, a bag of white crystal substance and money transfer documentation. A laptop computer was seized and forensic examination identified searches of terms such as “dry powder colour”, “where do you make pill packets”, “custom made pill sheets” and “how to use ems tracking”.
[9] A search was also executed at Mr Hunt’s address. Two laptop computers were seized and forensic examination identified drug related internet searches and tracking numbers that refer to packages containing pill press parts and shipments of controlled drugs that were intercepted by Customs.
[10] Customs also produced evidence of a number of importations containing pill press parts that were addressed to Mr Hunt or his associates (other than Mr Evans). One machine part was addressed to Mr Evans.
[11] Call and text message records obtained from telephone companies showed the collective involvement of Mr Evans, Ms Dunn and Mr Hunt in organising addresses for, and collection of, the packages.
[12] When interviewed, Mr Evans admitted to receiving packages for Mr Hunt and checking a post office box and letter boxes at random addresses for parcels or cards from courier companies. He also admitted to collecting packages from New Zealand Post. He received approximately $300 for each package he collected. Mr Evans said Mr Hunt received money to purchase the drugs from a third party and delivered the drugs to someone else.
[13] Mr Hunt did not make a statement.
District Court decision
[14] Each charge carried a maximum penalty of eight years’ imprisonment. In sentencing Mr Hunt, the Judge adopted a starting point of five years’ imprisonment and applied a discount of four months for good character and 20 per cent for Mr Hunt’s guilty pleas. The end sentence was one of three years’ eight months’
imprisonment, comprising three cumulative terms of 12 months and one cumulative term of eight months.
[15] In sentencing Mr Evans, the Judge adopted a starting point of four years and applied an uplift of eight months for his criminal history and, it appears, for involving Ms Dunn in the offending. The Judge reduced this sentence by 20 per cent to account for Mr Evans’ guilty pleas. The end sentence was one of three years’ eight months’ imprisonment. This sentence was similarly imposed as three cumulative terms of 12 months and one cumulative term of eight months.
Grounds of appeal
[16] Mr Hunt and Mr Evans both appeal on the basis that the District Court should have declined jurisdiction and transferred sentencing to the High Court. They submitted that, as a result, this Court should allow the appeal and commence the sentencing exercise afresh.
[17] Alternatively, the submission was that if the Judge had not erred in conducting the sentencing in the District Court, the starting points imposed in each case were too high and insufficient credit was provided for the appellants’ guilty pleas. Further, on behalf of Mr Evans it was submitted that the Judge should not have departed from the uplift indicated at the sentencing indication.
[18] I record here that neither appellant accepted the sentencing indication.
Standard on appeal
[19] If the sentence is one which the lower court had no jurisdiction to impose the
Court on appeal can quash the sentence and conduct the sentencing exercise afresh.
Did the Judge err in declining the transfer the sentencing to the High Court?
[20] The offending occurred prior to the commencement of the Criminal Procedure Act 2011. Accordingly, the now repealed s 6(3) of the Misuse of Drugs Act applied. Section 6(3) provided that the maximum sentence that a District Court
Judge could impose for any person summarily convicted of an offence relating to s 6
was 12 months’ imprisonment.
[21] In the District Court, the appellants argued that the Judge should transfer the matter to the High Court for sentencing, pursuant to s 28G of the District Courts Act
1947.
[22] A teleconference on this issue was held on 5 December 2013. Judge Thomas concluded that cumulative sentences could be imposed on each of the charges faced by the appellants, provided the end sentence on each charge did not exceed the maximum of 12 months’ imprisonment prescribed by s 6(3). The appellants were sentencing accordingly.
[23] On appeal, the following arguments were advanced. First, that the generally accepted approach is to carry out the sentence calculation without reference to the summary maximum. If the end sentence exceeds 12 months, the usual course is to decline jurisdiction and have the offender sentenced in the High Court.1
[24] Second, that cumulative sentences are only appropriate where the gravity of the offending for each individual charge warrants a sentence within the Court’s jurisdiction.2 In the present case, the individual sentences imposed on each of the charges faced by the appellants did not accurately reflect their culpability. The submission was that the Judge had artificially imposed a series of cumulative sentences, each one of which was inadequate to reflect culpability, in order to avoid exceeding the jurisdictional ceiling imposed by s 6(3).
[25] In response, the Crown argued that cumulative sentences can be imposed for multiple offences in order to reach an end sentence that exceeds the District Court’s jurisdiction, the only restriction being that the sentence imposed on each offence
cannot exceed 12 months’ imprisonment.3
1 Barker v Police HC Dunedin CRI-2010-412-11, 13 May 2010 at [6].
2 Relying on McKechie v Police (1989) 6 CRNZ 386 (HC); R v Williams [1988] 1 NZLR 748.
3 Relying on Police v Mikaere (1988) 3 CRNZ 665 (HC).
[26] The general approach to sentencing for multiple offending was outlined by the Court of Appeal in R v Xie.4 Mr Xie was sentenced on one charge of supplying a precursor substance and three charges of importing and supplying a class C controlled drug. The prescribed maximum for the latter charge is 8 years’ imprisonment. Priestley J considered whether it was appropriate to use a cumulative sentencing approach to exceed that maximum in order to adequately reflect the
gravity of the offending. The Judge held that, because the offences were of a similar kind and were to be regarded as a connected series of offences, it was not appropriate to sentence cumulatively, stating:5
I consider it would be doing violence to both established sentencing principles and, in particular, to the clear guidelines enacted by s 84 to construct, in what in my view is essentially an artificial way, cumulative sentences to overcome the eight year maximum.
[27] The Court of Appeal disagreed with this approach, finding that the total sentence imposed must reflect the overall criminality of the offending, but need not be arrived at in any particular way. Sections 84 and 85 of the Sentencing Act 2002 make reference to when concurrent and cumulative sentences are “generally appropriate” but these sections do not override the totality principle. The Court of Appeal held that where concurrent sentences would otherwise be appropriate (pursuant to ss 84 and 85) they should not be used if that would prevent the proper implementation of the totality principle. Cumulative sentences should be used instead. This may include cumulative sentences that produce an end sentence that exceeds the maximum penalty for any one of the offences.
[28] The Court of Appeal’s decision in Hughes v R is also instructive.6
Mr Hughes pleaded guilty in the District Court to one charge of driving with excess breath alcohol and one charge of driving while disqualified on the same occasion. Each offence carried a maximum penalty of two years’ imprisonment. It was accepted that the offences were different in kind.
[29] Mr Hughes was convicted and sentenced to cumulative terms of 18 months’
imprisonment on each charge. The Court of Appeal considered whether it was
4 R v Xie [2007] 2 NZLR 240, (2006) 22 CRNZ 949.
5 R v Xie HC Auckland CRI-2005-404-243, 16 September 2005 at [22].
6 Hughes v R [2012] NZCA 388.
appropriate to sentence cumulatively. In upholding the District Court’s sentencing approach, the Court held that because the Judge could not impose concurrent sentences in excess of two years, he was required to sentence cumulatively in order to achieve a sentence of more than the maximum sentence available. Since the “offences were different in kind”, it was appropriate to impose cumulative sentences
to achieve this.7
[30] It is significant, in the context of this case, that the comments of the Court in Xie were relevant to the High Court, which, as the highest sentencing Court, could not transfer to any other jurisdiction. The issue was whether cumulative sentences could be used to impose a sentence that exceeded the maximum available for a single offence. In that context, ss 83 and 84 gave way to the totality principle.
[31] A different approach is required in circumstances where the District Court is limited by its jurisdiction and has the discretion to transfer sentencing to the High Court. The combined effect of s 6(3) of the Misuse of Drugs Act 1975 and s 28G of the District Courts Act 1947 was that the more serious cases involving an offence warranting a sentence beyond the jurisdiction of the District Court would be transferred to the High Court. Those that warranted a sentence within the District Court’s jurisdiction could be dealt with in the District Court.
[32] The Court of Appeal in Hughes made it clear that where offences are of a different kind, it is appropriate to sentence cumulatively to achieve a sentence that exceeds the maximum sentence available. The corollary of this is that, where offences are of a similar kind and are a connected series of events, the appropriate course of action is to transfer the sentencing to the High Court, rather than to sentence cumulatively.
[33] I therefore accept the argument that the Judge exceeded jurisdiction in sentencing the appellants in this case. That being so, it is necessary to conduct the sentencing exercise afresh for each of the appellants, based on the Crown submissions and those of each appellant, both for the initial sentencing and on
appeal.
7 At [35].
Mr Hunt
[34] Counsel referred to the following cases in relation to starting point. In R v Ho, Winkelmann J identified two categories of class C controlled drug offending.8 While her Honour did not purport to set a tariff for this type of offending, these categories are often cited. Category 1 applies to “instigators, masterminds, prime movers and controllers” and attracts a starting point of between six and seven years.
[35] Category 2 includes those who are still crucial players but are not the instigators, prime movers and controllers, although they are people without whom the enterprise could not be brought to fruition. The suggested starting point for category 2 is between three and five years.
[36] Mr Ho was caught with 2.75 litres of pseudoephedrine granules at Auckland Airport. He intended to hand the drugs to another male on arrival. The granules could have produced $300,000 worth of methamphetamine. Winkelmann J held that the appellant was a courier and placed his offending in category two. A starting point of three and a half years was adopted.
[37] In R v Jethwa, Mr Jethwa imported nine packages during a one month period to facilitate a dealing operation involving the sale of $55,000 worth of pills per week.9 Mr Jethwa’s house, car and storage items were found to contain courier packages, cell phones, large quantities of powders, a pill press, binding agents, scales and $178,655. The Court imposed a starting point of five years.
[38] In R v Qiu, Mr Qiu was involved in one importation of 1847.5 grams of pseudoephedrine, which was capable of producing between $973,700 and
$1,385,500 worth of methamphetamine.10 Mr Qiu’s role was to recruit associates to
accept delivery and organise the transfer of drugs to his house, for which he was offered $1,000. The Court of Appeal held that the starting point of five was at the
very top of the available sentencing range but was within the Judge’s discretion
8 R v Ho HC Auckland CRI-2005-092-567, 12 April 2005.
9 R v Jethwa [2012] NZHC 2440.
10 R v Qiu CA202/06, 17 October 2006.
given the value of the drugs involved, their potential to be manufactured into methamphetamine, and the serious social and criminal problems flowing from that drug.
[39] In R v Burnside, Customs intercepted 27 envelopes in a single importation.11
The envelopes contained a total of 2245 grams of pseudoephedrine, which was capable of producing between $104,000 and $157,000 worth of methamphetamine. The Court of Appeal held that the starting point of five years was at the high end of the available sentencing range but was available notwithstanding the quantities imported were less than in other cases. It was also relevant that Mr Burnside was convicted of possessing methamphetamine for supply and there was evidence that he was using the pseudoephedrine to manufacture and deal methamphetamine.
[40] In R v Wang, Mr Wang was convicted of importing and conspiracy to import pseudoephedrine.12 Mr Wang was a courier. He attempted to leave China with 5,000 capsules of Contac NT and told police he had been offered $10,000 to bring them to New Zealand. He had earlier carried 2,000 capsules into New Zealand. The total amount involved in the two counts was capable of producing between $315,000 and
$472,000 of methamphetamine. The Court of Appeal upheld the starting point of three years and six months.
[41] In R v Fraser, Mr Fraser imported a package containing 260 grams of Bk-MDMA with an estimated street value of $21,600.13 He also admitted to an earlier importation of the same drug about six to eight months earlier. Mr Fraser formulated the plan to source and import the drugs for personal use and sale. The Court of Appeal referred to the categories of offending in R v Terewi and accepted a starting point of three years because Mr Fraser was an importer and dealer and
bk-MDMA is a more serious class C drug than cannabis.14
11 R v Burnside [2007] NZCA 527.
12 R v Wang [2007] NZCA 226.
13 R v Fraser [2013] NZCA 250.
14 R v Terewi [1999] 3 NZLR 62 (CA).
[42] In R v Tran, Mr Tran pleaded guilty to eight charges of importing pseudoephedrine and two charges of possession of pseudoephedrine for sale.15
Mr Tran purchased the tablets overseas and arranged for them to be sent to
Auckland. The tablets were supplied to a pre-arranged purchaser in return for
$10,000 per successful delivery. In total, Mr Tran imported 30,000 tablets capable of producing between $600,000 and $1,000,000 worth of methamphetamine. The Court of Appeal upheld a starting point of five and a half years, noting the large number of tablets imported, Mr Tran’s pivotal role in the importation and the significant profit he made.
[43] In R v Read, Mr Read received a starting point of four years for his role as a “catcher” for ten shipments of pseudoephedrine arranged by his brother.16 The quantity involved was 1.77 kilograms and had the potential to produce methamphetamine worth between $618,000 and $927,000. Mr Read received nine packages containing the drug, which he passed on to his brother. A tenth package was intercepted. There was no evidence that Mr Read was involved in arranging the importation. His role was confined to making the packages available to his brother.
[44] Mr Buckle, for Mr Hunt, submitted that in the absence of clear evidence relating to quality and final use of the imported drugs, the lowest estimated value of
$215,900 should be used for sentencing. He said the evidence suggests Mr Hunt was a low level conduit who acted as the tool of others importing the various substances and contrasted his role with that of Mr Fraser, who was essentially a “one-man band”. However, Mr Buckle accepted that the quantity imported by Mr Hunt was significantly greater than that imported by Mr Fraser.
[45] Mr Buckle further submitted that there was no evidence Mr Hunt was making pills or selling the imported drugs. Nor, he said, was there evidence of significant financial gain in contrast to Mr Jethwa, who was found with $178,655 in cash and also Mr Tran, who received $10,000 per package.
[46] Mr Buckle suggested Mr Hunt’s culpability was closest in nature to Mr Ho’s
and that a starting point of three years six months was appropriate.
[47] In response the Crown submitted that a starting point of five years was appropriate, highlighting the number of importations, Mr Hunt’s involvement in different aspects of the operation, and the period of time in which the offending occurred.
[48] Having reviewed all of the authorities cited above, I consider that a starting point of four years and six months’ is appropriate in Mr Hunt’s case. The most significant factors were the quantity and value of the drugs, the number of importations and the period of time over which they occurred; the clear commerciality of the overall operation notwithstanding there is no evidence of personal financial gain by Mr Hunt; and the extent of the role he played in the offending.
[49] Mr Hunt cannot be regarded as simply a low level conduit. He was an importer and there is evidence he was playing a role in managing the operation and directing Mr Evans and Ms Dunn. That distinguishes him from Mr Read, Mr Ho and Mr Wang. Nor do I accept there is no evidence of cash or other indicators of commerciality or supply. Clearly the offending was commercial, having regard to the importation of pill press parts, the value of the drugs imported and the payments out via Western Union.
[50] As noted by the Court of Appeal in Fraser, there is an absence of a guideline judgment or settled authority for offending of this type and thus R v Terewi provides a useful reference point.17 Most of the cases referred to by counsel involved pseudoephedrine. Those decisions should, however, be treated with care because of the Court’s focus on the link between pseudoephedrine and methamphetamine offending.18
[51] Neither Jethwa nor Fraser involved pseudoephedrine offending. Mr Hunt’s operation was similar in nature to Mr Fraser’s but was carried out on a larger scale. He also involved two other people in his offending. Mr Jethwa was influenced by his older co-offender but helped to run a larger and more sophisticated operation and there was substantive evidence (in the form of cash) of significant financial gain. A starting point of four years and six months properly places Mr Hunt between the sentences imposed in those two decisions. That starting point puts the offending into category three of R v Terewi, which is appropriate given the drugs involved are more serious than cannabis.
[52] Turning to Mr Hunt’s personal circumstances, I agree with the Judge’s discount of four months to reflect Mr Hunt’s previous good character. That reduces the sentence to four years and two months.
[53] There is some dispute over the appropriate discount for Mr Hunt’s guilty pleas. Mr Buckle submitted that the guilty pleas had been entered at the first reasonable opportunity. The original charges were laid in April 2013. Various charges had been withdrawn, modified and laid by the end of June and Police disclosure, including analysis of the various imported substances, was still being provided to the defence at that time. On 14 August Mr Hunt sought a sentence indication. He appeared for the sentence indication hearing, which was transferred to the High Court and then back to the District Court. The hearing took place on
26 February 2014 and, although not accepting the indication, the appellant did plead guilty to all charges at his next appearance.
[54] This is a situation where the delay between the seeking of the sentence indication and the actual sentence indication is attributable to factors outside of Mr Hunt’s control. It was caused by the jurisdictional issue and the intervention of the Christmas period. Accordingly, I am satisfied that Mr Hunt should receive a
25 per cent discount.
[55] That produces an end sentence of three years one month and 15 days, rounded down to three years and one month.
Mr Evans
[56] The same authorities cited above are relevant to the starting point for Mr Evans’ offending. Mr Prentice, on behalf of Mr Evans, submitted that the offending in Tran, Jethwa and Burnside was significantly more serious than the present case. He suggested Mr Evans’ culpability is lower than in Read and slightly higher than in Fraser, emphasising that Mr Evans’ main involvement was to facilitate the collection of packages from post boxes and random addresses. Mr Prentice highlighted that the drug involved was not pseudoephedrine. Mr Evans had given an explanation and there was no evidence that Mr Evans arranged any of the importations. He also submitted that the quantity imported amount gleaned and street value estimated was much lower than in Read.
[57] A starting point of three years and six months was said to be appropriate.
[58] The Crown accepted that Mr Evans’ culpability was lower than Mr Hunt’s, but reiterated the scale of the offending and submitted that a starting point of between three years, nine months and four years was appropriate.
[59] I accept that the offending is less serious than in Tran, Jethwa and Burnside. It is significant however, that whilst Mr Evans apparently became involved at Mr Hunt’s request, he was clearly motivated by financial gain. He was also primarily responsible for involving Ms Dunn in the offending. On the other hand, the fact that he was said to be acting on Mr Hunt’s instructions and was paid $300 for each package indicates that he was not the instigator or primary beneficiary of the proceeds of the importations. His role was closer to that of a “courier” or a “catcher”. It must also be taken into account that Mr Evans was involved in fewer importations and a lesser amount of drugs than Mr Hunt. Taking all of these factors into account I consider that a starting point of three years and six months was appropriate.
[60] A significant uplift was, however, warranted to reflect the appellant’s previous convictions. Mr Evans has 56 convictions for a variety of offences including 34 for drug relating offending. Of these, he has 11 convictions for possession for supply. His pre-sentence report records that his most recent drug
related conviction was in 2013, when he was convicted of cultivating cannabis. Before that it appears that Mr Evans had not offended for a number of years. Taking these factors into account I consider that an uplift of six months is appropriate. In identifying this as an appropriate uplift, I note that whereas the District Court Judge appeared to consider Mr Evans’ responsibility for Ms Dunn’s involvement in the offending as partially justifying the eight month uplift, I have taken that into account in setting the starting point.
[61] Turning to the discount for Mr Evans’ guilty pleas, Mr Prentice emphasised that the delays in this case were not of Mr Evans’ making and were entered at the first reasonable opportunity. He referred to the following passage from a minute by Peters J (who ruled that the District Court could not decline jurisdiction before receiving a guilty plea and remitted the case back to the District Court):
… I do record Crown counsel’s advice, however, that she does not expect the Crown would be likely to oppose the full discount for guilty pleas if the defendants were committed for trial.
[62] In these circumstances I am satisfied that a full 25 per cent discount is
warranted. Mr Evans’ end sentence is therefore three years.
Result
[63] The sentences imposed in the District Court are quashed. Mr Hunt is sentenced to three years’ and one month imprisonment and Mr Evans is sentenced to three years’ imprisonment.
Goddard J
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