Karapan v Police
[2015] NZHC 1880
•10 August 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-43 [2015] NZHC 1880
BETWEEN GANAPATHY KARAPAN
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 20 July 2015 Appearances:
S J Gray for Appellant
Z Hamill for RespondentJudgment:
10 August 2015
JUDGMENT OF WHATA J
This judgment was delivered by Justice Whata on
10 August 2015 at 5.00 p.m., pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
Public Defence Service, Auckland
Meredith Connell, Crown Solicitors, Auckland
KARAPAN v NEW ZEALAND POLICE [2015] NZHC 1880 [10 August 2015]
[1] Mr Karapan pleaded guilty, and was sentenced to nine years seven months’ imprisonment with a minimum period of imprisonment of five years, on charges of importing a class A controlled drug and possession of a class A controlled drug for the purposes of supply.
[2] Mr Karapan claims that the District Court Judge erred in imposing a minimum period of imprisonment for the following reasons:
(a) the sentencing Judge had regard to facts which were not included within the summary of facts;
(b) the sentence imposed was disparate with co-offenders; and
(c) the sentencing Judge failed to take into account the mandatory considerations in s 86 in considering whether the period otherwise applicable under s 84(1) of the Parole Act is insufficient to meet all or any of the purposes of s 86(2).
[3] As a consequence Mr Karapan submits that a different sentence should have been imposed.
Background
[4] Mr Karapan pleaded guilty to the following summary of facts.
[5] On 13 June 2014 the defendants Mr Liew and Mr Karapan arrived into New Zealand at Auckland International Airport aboard Air New Zealand flight NZ80 from Hong Kong.
[6] On the same day, the defendants Mr Ng and Ms Chong arrived into New
Zealand on the same flight as Mr Liew and Mr Karapan.
[7] When Mr Karapan arrived in New Zealand he was subject to a personal search which identified that Mr Karapan had a package located in his underwear. He was wearing underwear which had a black pocket sewn into the crotch. Inside this
pocket there were two plastic tubes, both containing a white crystal substance. The plastic tubes of crystal substance were isolated from the underwear. The substance weighed approximately 499 grams.
[8] Testing of the substance returned a positive result for the presence of drugs. Mr Karapan was subsequently interviewed by Customs Officers. During that interview Mr Karapan stated he flew with Mr Liew from Malaysia to Macau. He said he had known Mr Liew for approximately two to three years.
[9] At Macau Airport, they had met the person who arranged and funded their travel to New Zealand. Mr Liew and Mr Karapan were directed to the location of the drugs and two pairs of underwear which were in a bag next to a waterfall inside a casino. Mr Karapan saw the bags of crystal in the underwear and suspected this was “ice”.
[10] Mr Karapan stated he put on the underwear at the same time as Mr Liew. Mr Karapan knew there were another two persons (Mr Ng and Ms Chong) on the flight with himself and Mr Liew when he met them at the airport in Macau.
[11] Mr Ng and Ms Chong were not searched at the airport, but a search was conducted of their hotel room during which four plastic tubes of crystal substance were located in the wardrobe. The substances were tested and returned a positive result for the presence of drugs.
[12] Mr Ng was subsequently interviewed by Customs Officers. During that interview Mr Ng stated he and his partner were to be paid $4,000 Malaysian Ringgit each to carry the drugs to New Zealand. Mr Ng stated he had met the defendant Mr Liew approximately two months previously when they worked together at a restaurant named Tian Kee. It was Mr Liew who offered Mr Ng the opportunity to make some money.
[13] Mr Ng identified Mr Liew as “Amiel” and Mr Karapan had a nickname
“Blackman”.
[14] The summary of facts also records that:
Defendant NG and his partner Defendant CHONG travelled to China, where they met with Defendant LIEW and one other male. They stayed at the Galaxy Hotel in Shenzhen for two days. Defendant LIEW provided NG and his partner with the underwear, which Defendant NG recognised had a crystal substance inside, he suspected this was “ice” and knows that “ice” is a drug.
All Defendants travelled to Hong Kong Airport together.
Defendant NG provided his bank account to Defendant LIEW in order to be paid after they had made successful delivery.
The Defendant CHONG was subsequently interviewed by Customs Officers. During that interview, the Defendant CHONG stated she travelled to China with NG where they met “Amiel” and “Blackman” at a hotel. “Amiel” and “Blackman” offered Defendants NG and CHONG a job, the job entailed bringing drugs to New Zealand.
[15] The potential value of the drugs found was as follows:
(a) Mr Liew was found in possession of drugs or methamphetamine, valued between $213,200 and $639,600.
(b) Mr Karapan was found with methamphetamine with a value between
$199,600 and $598,800
(c) Mr Ng and Ms Chong were found in possession of methamphetamine that could be sold for between $385,200 and $1,155,600.
Sentencing notes
[16] The Judge summarised the facts. Most relevantly, Her Honour noted:
[7] You saw what was in the underwear and you saw what looked like bags of crystals. You suspected this as “ice” or methamphetamine. You put on your underwear at the same time as Mr Liew. You said you knew there were two other people involved, one male and one female, on the flight with you and Liew. You first met them at Macau Airport.
[8] Your co-offenders Mr Ng and Ms Chong, who have pleaded guilty and have been sentenced, told Customs officers a slightly different story. Mr Ng said [he] had met Mr Liew about two months earlier when they worked together at a restaurant. Mr Ng was struggling to make ends meet. Mr Liew offered Mr Ng the opportunity to make some money. Mr Ng said that Mr Liew had a nickname, Amiel, and that you had a nickname Blackman.
[9] Mr Ng said that he and his wife went to China where they met with Mr Liew and one other male. They stayed at the Galaxy Hotel in Shenzen for two days. Mr Ng and Ms Chong were given the underwear by Mr Liew.
[10] Ms Chong said she met both Mr Liew and you, whom she called Blackman, at a hotel. Both you and Mr Liew offered Mr Ng and Ms Chong a job which involved bringing drugs to New Zealand. She said that both you and Mr Liew provided both Mr Ng and Ms Chong with the underwear. She also referred to “the company” as an organisation which paid for the flights to New Zealand.
[17] The Judge then made the following conclusions:
[11] I have no doubt, on the information before me, that the conspiracy to bring drugs into New Zealand involved more than you and Mr Liew and that while you were more significant than couriers or mules, you were less significant than the mastermind or minds and that your involvement, though more than Ms Chong’s and Mr Ng’s, was less than Mr Liew’s.
[18] The Judge observed the total of the tubes of crystal substances containing methamphetamine found amongst the four of the defendants could fetch between
$798,000 and $2.3 million.
[19] The Judge stated that given the starting point of 13 years for Mr Ng and Ms Chong, a starting point of 13 and a half years was appropriate for Mr Karapan. She then stated:
[20] …You were jointly involved in the importation of 1.982 grams of methamphetamine. In Slipkus at [10] the High Court held that a joint enterprise involves a higher starting point and you were more than a mule or a courier.
[20] The 13 and a half year starting point was then uplifted by six months for the possession of methamphetamine for supply. This resulted in a start point of 168 months. The Judge then discounted for Mr Karapan’s personal circumstances, including that he was living away from his family in a foreign jurisdiction. This resulted in an eight per cent discount of 14 months bringing the sentence down to
154 months.
[21] A maximum discount was given for a guilty plea, namely 25 per cent. This brought the sentence to an end sentence of nine years and seven months.
[22] As to the minimum term of imprisonment, the Judge said this:
[24] A minimum term of imprisonment is appropriate to mark the significance of your involvement in the planning of this offence. While a mule or a courier is at the lower end of the scale, I consider that your role was greater as is the requirement for deterrence and denouncement. Those who participate in the planning or the arranging of importation of methamphetamine into this country must expect a condign sentence.
[25] I do not consider that your serving merely a third of your sentence before becoming eligible for parole would be sufficient to hold you accountable for the harm done to the community by the offending, denounce your conduct, deter you and others from committing the same or a similar offence or to protect the community from your offending.
[23] The judge therefore imposed a minimum term of imprisonment of five years.
Jurisdiction
[24] Section 250(2) of the Criminal Procedure Act 2011 states that I may allow an appeal if for any reason there was an error in sentence imposed on conviction and a different sentence should be imposed. It is now settled that the basis for allowing appeal against sentence has not changed substantially as a consequence of the introduction of s 250.1
[25] It is also for the appellant to show that there has been an error in the sentence imposed and that a different sentence should have been handed down.
Argument
[26] Ms Gray submits for Mr Karapan:
(a) The Judge erred as to the gravity of the offending by referring to matters outside the summary of facts;
(b) Mr Karapan was not a “middle man” and there is no evidence to
support such a finding;
(c) If the Judge was going to refer to other evidence, she should have referred to the DVD interviews, and should have put the defendants
on notice and there should have been an opportunity for a disputed facts hearing.
(d)The decision by the prosecution to seek an MPI was a last minute decision;
(e) It is accepted that Mr Karapan had a greater involvement, so there is no challenge to the starting point per se, but an uplift of only six months underscores that the culpability of Mr Karapan was only slightly higher than that of the other defendants, Mr Ng and Ms Chong.
(f) The end result, namely a minimum sentence of four years six months, is manifestly disproportionate to the minimum sentences to be served by Mr Ng and Ms Chong, namely 2 years and 6 months.
(g)As a secondary submission, the statutory threshold set out at s 83 was not met, there being no record of consideration on the face of the decision of mandatory factors set out in s 86 when determining whether an order was necessary, nor the length of such an order. The issue is dispatched in one paragraph of the decision. This is to be contrasted with the approach emphasised in R v Blackmore as to why a minimum period of imprisonment is appropriate and how any
resultant term was reached. 2
Submissions for New Zealand Police
[27] Ms Hamill responded:
(a) There was no reliance placed on extraneous material;
(b) The imposition of an MPI was consistent with the facts;
(c) An MPI in a context of methamphetamine conspiracy is not unusual;
(d)There is sufficient evidence to show that Mr Karapan had a slightly greater role in that he was a different class of offender compared to Mr Ng and Ms Chong;
(e) The assistance afforded by Mr Ng and Ms Chong is a relevant factor that warranted a different result overall;
(f) The Judge clearly had reference to the criteria pursuant to s 86 for the purposes of the imposition of a minimum term;
(g)There is nothing on the face of the decision to suggest that it was wrong in principle or otherwise plainly wrong.
The appellant’s reply
[28] Ms Gray submitted in reply:
(a) The evidence said to support the finding that Mr Karapan had a significantly greater role is at best ambiguous and contradictory. Mr Ng did not identify Mr Karapan, whereas Ms Chong did identify a “Blackman”.
(b)The offer of assistance was not a factor that the Judge records as carrying weight. And in any event the timeline of events shows that the term of the sentence and the nature of it was imposed prior to a consideration of the agreement to give assistance. In particular, Her Honour declined to impose a minimum period of imprisonment on the co-offenders at the sentence indication hearing on 10 October 2014 and this was prior to their agreement to provide assistance to the Crown.
(c) Moreover, Ms Chong’s statement either was inadmissible against Mr Karapan or at the very least had weak probative value given the conflict with Mr Ng’s statement.
Assessment
[29] The central issue is whether a MPI was appropriate. In order to resolve this issue I must determine whether the judge erred in her assessment of Mr Karapan’s culpability and or in terms of the criteria set out at s86 of the Sentencing Act 2002.
Culpability
[30] I agree with Ms Gray that where agreement has been reached on the factual summary on which a guilty plea is to be entered, the sentencing Judge must base the sentence on that summary. The Judge is also entitled to draw inferences from an agreed summary of facts provided they are grounded on established primary facts.3
[31] I also agree that the evidence does not support the inference that Mr Karapan was a “middle man.” Even if Mr Karapan handed the underwear to Ms Chong, I do not think that provides a proper basis for concluding that Mr Karapan occupied a middle man role.
[32] But the Judge did not, on the face of the sentencing notes, assume that Mr Karapan was a “middle man”. The Judge records Mr Iosefa’s submission that Mr Karapan was a “kind of middle man” at [16], but does not expressly adopt this submission. Rather, the Judge said:
[11] … you and Mr Liew and that while you were both more significant than couriers or mules, you were less significant than the mastermind or minds and that your involvement, though more than Ms Chong’s and Mr Ng’s, was less than Mr Liew’s.
[33] Moreover, Ms Gray accepted that the starting point for Mr Karapan’s sentence was not manifestly excessive. This suggests to me that the Judge’s assessment of culpability was accurate.
[34] Accordingly I perceive no error by the Judge in terms of the assessment of culpability. In case I am wrong about this I turn to assess whether a MPI was
appropriate.
3 Pokai v R [2014] NZCA 356 at [30] –[31].
Assessment of minimum term
[35] Section 86(2) 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: (c) deterring the offender or other persons from committing the
same or a similar offence:
(d) protecting the community from the offender.
[36] I accept the submissions made by Ms Hamill that a minimum period of imprisonment will be common in cases of serious drug offending. Ms Hamill referred to the decision of the Court in R v Anslow which surveyed 71 sentencing cases and indicated sentences of nine years or more were commonly accompanied by
a minimum term of greater than one-third. 4 Furthermore, the case cited by Ms
Hamill of R v Zhou provides an appropriate framework of reference:5
[19] It would not be right to fetter judicial discretion by finding that an MPI should always be imposed in a case of serious drug offending at the levels involved in this case. The observations of this Court just mentioned do not go that far. But the pervasive and pernicious influence of methamphetamine in New Zealand society is such that the usual MPI of one- third applicable under the Parole Act 2002 will most often be insufficient to meet the statutory purposes identified in s 86(2) in cases of large scale offending.
[37] Numerous other cases were cited by Ms Hamill which are illustrative of this point.6 In many of the cases, it was enough to be a mule or slightly more, in order to
attract a 50 per cent MPI.
4 R v Anslow CA182/05, 18 November 2005.
5 R v Zhou [2009] NZCA 365.
6 Including Solicitor-General v Huang [2011] NZCA 436, Choi v R [2011] NZCA 237 and R v
Nguyen [2009] NZCA 239.
[38] As to be expected, there are, of course, instances where a minimum period of imprisonment was not imposed. The general thrust of those cases supports the basic proposition that a minimum period of imprisonment will not be imposed in every case of large scale drug importation7 and that mules will not inevitably face a minimum period of sentence.8
[39] Turning then to this case, the first step in the assessment is to identify the gravity of the overall offending and the culpability of the offender. Collectively the co-offenders imported a total of 1.995 kilograms of methamphetamine. This is serious drug offending. An importation of this scale, which is not, numerically, the
most serious of its kind, is still in the highest category for the purposes of R v Fatu.9
As noted, no complaint is made about a starting point in the order of 13.5 years.
[40] Ms Gray also accepts that Mr Karapan’s culpability is slightly higher than Mr Ng and Ms Chong’s. They can be accurately described as mules and having no role whatsoever in the management of the offending. As I have said, however, there was insufficient evidence upon which to draw an inference that Mr Karapan was a “middle man”. He might be best described as a senior mule in the context of the offending.
[41] Given the foregoing, the Judge was not obviously wrong to impose a minimum period of imprisonment. Indeed, in light of cases provided by counsel, an MPI sentence for serious drug importation offending of this kind was appropriate having regard to the criteria set out at s 86.
[42] For completeness, to the extent that there is any doubt about the application of s 86 and the appropriateness of a minimum period of imprisonment for this type of offending I need only refer to the observation by the Court of Appeal in R v
Wong10 where it is stated:
7 Refer R v Slipkus HC Auckland CRI 2010-004-19597, 2010-004-22321, 1 March 2011, Lang J; R v Boyarski HC Auckland CRI 2006-092-12125, 29 May 2007, Baragwanath J; and R v Takiguchi HC Auckland CRI 2010-004-4084, 16 November 2010, Duffy J.
8 See also R v Tyniec HC Auckland CRI 2011-092-6373, 9 August 2011, Wylie J.
9 R v Fatu [2006] 2 NZLR 72.
10 R v Wong [2009] NZCA 332.
[21] In the decisions of R v Anslow CA182/05 18 November 2005 and R v Aram [2007] NZCA 328, this Court confirmed that in cases of very serious drug offending, while its discretion will never be fettered, it will be almost invariable that the criteria for an order under s 86, particularly the need for deterrence and denunciation, will be made out. This case is no different. The criteria are made out for an order under s 86.
[43] In that case, the appellant Wong had been found with approximately two kilograms of methamphetamine skilfully packaged to conceal the drug. It is very difficult to say that the Judge was wrong in imposing a minimum period of imprisonment in this case.
Disparity
[44] The final issue to address is whether or not a minimum period of sentence was clearly disparate. The proper threshold test is whether the there is gross disparity in the sentences.11
[45] It transpires that after all discounts are taken into account, the two co- offenders Mr Ng and Ms Chong will be eligible for parole in approximately two years six months. By virtue of the minimum period of imprisonment Mr Karapan will serve twice that before he is eligible for parole. This outcome suggests disparate treatment.
[46] But, in my view, the answer lies in the detail. Reproduced here is a table setting out the starting points, uplifts, discounts and end points for the respective
sentences.
Offender
Start point
Adjustments
End sentence
Mr Karapan 13.5 years Uplift 6 months for possession
8% (14 months) discount for foreign imprisonment and language
25% guilty plea (38.5 months) Net discount 3 years 10 months
9 years 7
months
5 year MPI
Mr Ng 13 years Uplift 6 months for possession
10% (16 months) discount for foreign imprisonment, language, separation from child
7 years 7
months
11 R v Rameka [1973] 2 NZLR 592 (CA), confirmed in Macfarlane v R [2012] NZCA 317.
15% (24 months) discount assistance
to police
25% (31 months) guilty plea1 year 5 months assistance to authorities
Net discount 5 years 5 months
Ms Chong 13 years Uplift 6 months for possession
10% (16 months) discount for foreign imprisonment, language, separation from child
15% (24 months) discount assistance to police
25% (31 months) guilty plea
1 year 5 months assistance to authorities
Net discount 5 years 5 months
7 years 7
months
[47] It will be seen that Mr Ng and Ms Chong’s end sentence is markedly less than the Mr Karapan’s end sentence for legitimate reasons, including less overall culpability, different personal discounting factors and the assistance afforded by them to the police. Each of these factors is relevant to the s 86 criteria noted above and provide a proper basis for not imposing a minimum period of imprisonment. I therefore do not consider that the differences in the sentence would lead a reasonably minded independent observer to believe that something had gone wrong with the administration of justice.
[48] For completeness, it is irrelevant for the purpose of this appeal that the Judge did not take into account the assistance offered to the police when settling on whether a minimum period of imprisonment was appropriate. The key issue is whether this factor is a material point of difference for the purpose of s86. Plainly it is.
[49] In those circumstances, I do not consider that the apparent disparity arising from the imposition of a minimum period of imprisonment is such as to outweigh the proper policy considerations which justify its imposition.
[50] The appeal is, therefore, dismissed.
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