Kadosh v The Queen

[2005] NZCA 69

IN THE COURT OF APPEAL OF NEW ZEALAND

CA367/04

THE QUEEN

v

SHAI KADOSH

Hearing:17 February 2005

Court:Chambers, Williams and Salmon JJ

Counsel:R A Harrison for Appellant

M A Woolford for Crown

Judgment:15 April 2005 

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Chambers J)

Importing Ecstasy

[1]        On 25 September 2003 Yoav Erenstein was intercepted on his arrival into New Zealand.  He had approximately 3 kg of Ecstasy powder, a Class B controlled drug, sewn into a jacket which was in his luggage.  That amount is sufficient to produce approximately 37,000 individual tablets of Ecstasy.  At “street level” in New Zealand, that number of tablets would be worth somewhere between $2.2 million  and $2.9 million.  Mr Erenstein, on being questioned, admitted he was acting as a courier.  He then co-operated fully with the police.  The police took custody of the Ecstasy powder.  Identical packages containing a substitute powder were then given to Mr Erenstein. 

[2]        Mr Erenstein had been given a number in Holland to call once he cleared Customs in New Zealand.  He called it.  Shai Kadosh, the appellant, was at that number.  Mr Erenstein reported to Mr Kadosh that he had arrived in New Zealand with the drugs.  Thereafter Mr Erenstein spoke to Mr Kadosh on a number of occasions by phone.  Mr Kadosh gave Mr Erenstein instructions.  He told him that he would travel to New Zealand to uplift the drugs. 

[3]        Mr Kadosh then did travel to New Zealand.  He arrived on 1 October.  On arrival at Auckland Airport, Mr Kadosh was found to be in possession of approximately 25 g of cannabis preparation commonly known as “Hashish”.  It was concealed on his body.  He was arrested and charged but then released on bail.  He was kept under observation. 

[4]        Mr Kadosh then hired a rental vehicle and booked into a city hotel.  He subsequently had several meetings with Mr Erenstein. 

[5]        On 3 October, Ryan Quinlan arrived at Auckland Airport on a flight from Sydney.  Later that day, Mr Erenstein, acting on Mr Quinlan’s instructions, met Mr Quinlan and handed one of the packages to Mr Quinlan. 

[6]        Immediately after this, Messrs Kadosh, Quinlan, and Erenstein were arrested.  Mr Kadosh was charged with importing Ecstasy and possession of Ecstasy for supply. 

[7]        On 6 October, Mr Kadosh approached Mr Erenstein in the cells at the Auckland District Court.  He accused him of assisting the police to catch him.  He then stated that his father was going to kill Mr Erenstein’s parents and sisters and that Mr Erenstein himself was “a dead man”.  Mr Kadosh then said that, if Mr Erenstein was to withdraw his statement to the police and tell the police that “he was just some guy that he met in the casino”, then Mr Kadosh would call off having Mr Erenstein’s family killed.  After this was reported to the police, Mr Kadosh faced a new charge, namely attempting to dissuade a witness from giving evidence. 

[8]        Mr Kadosh pleaded guilty to the four charges prior to his preliminary hearing in the District Court.  A District Court judge remanded Mr Kadosh to the High Court for sentence. 

[9]        Venning J sentenced Mr Kadosh on 3 August 2004: HC AK CRI2003-004-039456.  He sentenced Mr Kadosh to concurrent sentences of eight years’ imprisonment with respect to the charges of importing Ecstasy and possession of Ecstasy for supply.  He convicted and discharged Mr Kadosh on the charge of possession of cannabis resin.  On the charge of attempting to dissuade a witness, Venning J sentenced Mr Kadosh to a year’s imprisonment, cumulative on the other sentences.  That meant a total sentence of nine years’ imprisonment.  His Honour also fixed a minimum non-parole term of four and a half years’ imprisonment.

[10]      Mr Kadosh appeals on the grounds that the sentence was manifestly excessive.

Issues on the appeal

[11]      There are two issues on this appeal. 

[12]      Mr Harrison, for Mr Kadosh, submits that the judge adopted too high a starting point with respect to the Ecstasy offending.  Venning J adopted a starting point of 11 years’ imprisonment.  Mr Harrison submitted that the starting point should have been in the range of eight to ten years’ imprisonment.

[13]      The second issue was whether the penalty for the witness charge (as we shall term the charge of attempting to dissuade a witness from giving evidence) was too high.  Venning J added a year’s imprisonment for that offending.  Mr Harrison submitted that that was too high.  It should have been, he submitted, no more than an additional six months’ imprisonment.

[14]      We shall deal with the issues in turn. 

The starting point

[15] Venning J, in fixing the starting point, referred to a number of cases, both in this court and in the High Court. He also noted that when Mr Erenstein had been sentenced, the sentencing judge on that occasion had accepted “his level of involvement was as a courier” and had adopted a starting point of 10 years’ imprisonment: at [8]. Mr Mansfield, then Mr Kadosh’s counsel, had apparently submitted to Venning J that he should approach Mr Kadosh’s case on the same basis, namely that Mr Kadosh’s level of culpability was at the level of a courier. Venning J rejected that submission because he considered that on the agreed facts Mr Kadosh’s involvement in the current importation was at a higher level than that of a courier. His Honour then concluded that the starting point should be 11 years’ imprisonment: at [10].

[16]      Mr Harrison referred us to a number of cases with which he submitted Venning J’s starting point was inconsistent.  We have considered them, but in our view they establish that Venning J’s starting point was correct.  The closest cases factually would appear to be R v Lam CA282/02 23 October 2002, R v Wong and Cheng CA378/02 and 379/02 25 March 2003 and R v Hui CA192/03 28 August 2003.  Venning J’s decision is entirely consistent with those cases.  We also note that in R v Wu CA65/02 18 June 2002 this court held that a ten year sentence (after a guilty plea) would have been appropriate on an importation of 25,000 tablets of Ecstasy: at [12].  That particular case was complicated by the fact that the sentence was imposed cumulatively on an earlier sentence involving the importation of Class A drugs.  Again, Venning J’s starting point is consistent with the Ecstasy part of the Wu sentence. 

[17]      There is nothing in the first point.

Attempting to dissuade a witness

[18]      Mr Harrison accepted that he could not challenge a cumulative sentence for the witness charge.  He submitted, however, that the additional penalty was too heavy.  No authorities were cited. 

[19] Venning J noted that the threat was made to a person who had assisted the police. If Mr Kadosh had maintained his not guilty plea, Mr Erenstein would have been required as a witness. The threat was real from Mr Erenstein’s point of view: at [14].

[20]      We regard the threat as serious.  Those who are parties to drug importations and who elect to assist the authorities after being caught run real risks.  Any threat to them would cause them real alarm and might well dissuade them from continuing to assist the authorities.  Strong deterrent sentences are called for.  It could not possibly be said that an additional year’s imprisonment for a threat of this kind was manifestly excessive. 

Result

[21]      We are satisfied that the overall sentence was appropriate.  The starting point and discount on the Ecstasy charges were appropriate, as was the additional penalty on the witness charge. 

Solicitors:
Crown Law Office, Wellington