Pishchako v New Zealand Customs
[2018] NZHC 386
•12 March 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-404-000010 CRI-2018-404-000015
CRI-2018-404-000018 [2018] NZHC 386
BETWEEN VLADISLAV PISHCHAKO VICTOR BORISENKO GUY SHALOM
Appellants
AND
NEW ZEALAND CUSTOMS
Respondent
Hearing: 12 March 2018 Appearances:
P Pati for Appellant Pishchako
J Northwood for Appellant Borisenko
J Northwood as agent for C Tuck for Appellant Shalom H G Max for the Respondent
Judgment:
12 March 2018
JUDGMENT OF WOOLFORD J
Solicitors/Counsel:
P Pati, Public Defence Service, Manukau J Northwood, Barrister, Auckland
C Tuck, Barrister, Tauranga Crown Law Office, Wellington
PISHCHAKO & ORS v NZ CUSTOMS [2018] NZHC 386 [12 March 2018]
Introduction
[1] Victor Borisenko, Vladislav Pishchako and Guy Shalom each pleaded guilty to one charge of importing a Class B controlled drug, MDMA, and one charge of possession of a Class B controlled drug for supply.
[2] Judge Bergseng sentenced each appellant to eight years and three months imprisonment on 21 December 2017, with a 50 per cent minimum period of imprisonment (MPI).
[3]The appellants now appeal against the sentences.
Facts
[4] The appellants are Israeli nationals. They were offered something like €5,000 each to smuggle MDMA into New Zealand. They accepted this offer. When they arrived at Auckland International Airport from Singapore on 2 January 2017, X-rays taken by Customs revealed a substantial quantity of MDMA in each appellant’s suitcase. The MDMA was hidden beneath false bottoms; 2.9 kilograms in each suitcase. The purity was between 76 and 78 per cent, and the street value said to be between $3,200,000 and $3,654,000.
[5] The appellants’ role was limited to that of couriers. Their tickets had been booked a few days earlier, on 30 December 2016 and this was their first time in New Zealand.
District Court
[6] Judge Bergseng adopted a starting point of 11 years imprisonment for each appellant. He reduced this by 25 per cent because of the guilty pleas, arriving at an end sentence of eight years and three months imprisonment. Judge Bergseng also imposed a MPI of 50 per cent.
[7] The Judge considered little importance could be given to the appellants’ personal circumstances as there was need to deter others from importing drugs into New Zealand. In the end, he declined to give any discounts for personal factors.
Appeal
[8] The appellants appeal on the grounds that the Judge erred in not giving a discount for personal mitigating factors and in imposing a 50 per cent MPI.
[9] Section 250(2) of the Criminal Procedure Act 2011 states the court must allow a sentence appeal if it is satisfied for any reason, there is an error in the sentence imposed on conviction, and a different sentence should be imposed. If the requirements in s 250(2) are not met, the appeal must be dismissed.1
Personal mitigating factors
[10] The appellants say the Judge erred in not providing a discount for their personal mitigating factors. They say, that these are as follows:
(a)Previous good character. The appellants have no previous convictions.
(b)Remorse. In explaining the circumstances that led to the offending, they refer to their families in Israel who are under significant financial pressure. They say, however, they understand how serious their offending is, and that they are genuinely remorseful.
(c)Hardship in prison. The appellants will have to serve a lengthy term of imprisonment away from their friends and families. A number of factors in the New Zealand prison system will make it more difficult to practice their Jewish faith. A report provided by Rabbi Friedler sets out these difficulties, and the effects it will have on the appellants.
[11] Judge Bergseng discussed each of these factors, but declined to give any discounts at all. He referred to R v Jarden, where the Supreme Court said:2
As the courts have repeatedly said, and as we emphasise again, in sentencing those convicted of dealing commercially in controlled drugs the personal circumstances of the offender must be subordinated to the importance of deterrence. But this does not mean that personal circumstances can never be relevant.
1 See Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
2 R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [12].
[12] As the Supreme Court acknowledged, there can still be discounts for personal mitigating factors in drug-related offending. The Supreme Court went on to say:3
The personal circumstances of an offender may be relevant either because they contributed in some way to the offending, or on purely compassionate grounds. … His personal circumstances, in the form of the loss of his partner and their unborn child shortly before his trial was to commence, were, however, so extreme that they could and should have been taken into account in sentencing. The crucial importance of deterrence requires, however, that the reduction in sentence be a modest one.
[13] Regarding previous good character, the Judge said the lack of previous convictions was offset by the seriousness of the offending.
[14] Given the appellants chose to bring a significant quantity of drugs into New Zealand, and the appellants are all in their mid-twenties, I do not consider the Judge erred in declining to provide a discount for previous good character.4
[15] However, as regards remorse, the Judge considered the remorse shown was directed more towards the fact of being caught.
[16] Here I disagree. I have examined the pre-sentence materials and the letter written by Mr Pishchako. I am satisfied the appellants understand how serious their offending is and they are now genuinely remorseful.
[17] The appellants have all served time in the Israeli Army and have no previous convictions. They have shown insight into their offending and appreciate the significant impact on New Zealand society if the drugs they were carrying had made it on to the streets of our cities. In his letter, Mr Pishchako states “I’m really happy that I was caught and prevented from making real harm to New Zealand and New Zealand people”. Mr Shalom expresses similar sentiments in his letter to the Court.
[18] Keeping in mind what the Supreme Court said in Jarden, I consider a discount of six months is appropriate.
3 At [14].
4 R v Wang [2014] NZCA 409 at [28].
[19] In relation to the hardship in prison, the Judge considered this was a risk the appellants took when they chose to import drugs into New Zealand. He referred to Machado-Pereira v R:5
Care is needed before too much weight is attributed in these situations to the impact of jail in a foreign country. It is undoubtedly an increased hardship, but in an area where deterrence is paramount, it must be recalled that the offender has chosen to run this very risk. The only reason Mr Machado- Pereira came to New Zealand in February 2012 was to bring in drugs. He left a few days later having done so. As noted in Chen v R, deterrence will not be achieved if leniency is shown to those who run the risk of being imprisoned far from families.
[20] The Court of Appeal made a similar statement in O’Connor v R.6 However, in that case the Court also said:7
I accept that on occasions when a foreign national is required to serve a sentence in New Zealand a discount to his or her sentence may be warranted to reflect the challenges he or she will face when coping with language, cultural and social issues in a New Zealand prison. That is not, however, a persuasive concern in Mr O'Connor's case for the following reasons.
[21] The Court considered it significant Mr O’Connor spoke English well, had lived in Australia and had demonstrated on remand he had no difficulty adjusting to the New Zealand prison environment. The present case does not share these features. New Zealand cultural and social norms are foreign to the appellants. They will experience language difficulties in prison. As outlined earlier, their religion will make things harder for them. While I acknowledge prison authorities will take steps to try and minimise these disadvantages, I am satisfied prison will be tougher for them because of its impact on their religious practices. They will, of course, also be away from their families and support networks for a long time. In these circumstances, I consider a modest discount of five months is appropriate.8
Minimum period of imprisonment
[22] Judge Bergseng imposed a MPI of 50 per cent. In doing so, he noted the seriousness of the offending referred to the following passage from R v Pai:9
5 Machado-Pereira v R [2015] NZCA 423 at [13].
6 O’Connor v R [2016] NZCA 414 at [36].
7 At [33].
8 R v Ogaz [2007] NZCA 45; R v Chan [2009] NZCA 528 and R v Gan [2016] NZHC 2349.
9 R v Pai [2015] NZHC 2345 at [14].
My answer to that submission is that the Court has very few tools available to it to assist in the war against serious drugs. One of the tools available to it is to impose deterrent sentences. I consider it would send entirely the wrong message to importers of drugs if the courts were to refrain from imposing minimum terms of imprisonment in serious cases. I say that because those persons who recruit couriers and catchers of drugs such as you would be able to tell potential recruits that they would be released and deported after serving just one-third of their sentence of imprisonment. That may serve to encourage people like you to become involved in the importation of drugs in the future.
[23] Section 86(2)(c) of the Sentencing Act 2002 allows the court to impose a minimum period of imprisonment longer than the period otherwise applicable if it is satisfied it is necessary to do so 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.
[24] Plainly, Judge Bergseng considered a 50 per cent minimum period of imprisonment was necessary to denounce the conduct and to deter others from committing the same or similar offences. Section 86 makes it clear he was entitled to do so. In my view, it cannot be said he erred.
[25] While, as the appellants submit, it is open to the Judge to decline to impose a minimum period of imprisonment, the authorities make it clear it was also open to the Judge to impose one. The Court of Appeal recently addressed this point in Mok v R:10
The mass importation and distribution of drugs depends for its success on the participation of those willing to be involved in low-level tasks for relatively modest reward. The harm caused by such activity means that deterrence can fairly be viewed as paramount. And while there may be a trend for minimum periods not to be imposed for sentences of less than nine years, this is not a rule. Moreover, it seems to us to be strongly arguable that minimum periods should more routinely be in play in the context of very serious, cross-border,
10 Mok v R [2017] NZCA 537.
high-volume drug offending, regardless of the end sentence. But that will be a question for the Permanent Court. In our view it was more than open to the Judge to impose a minimum period here.
[26] Counsel for Mr Pishchako cited Machado-Pereira v R as a case in which the Court of Appeal quashed a 50 per cent MPI for similar offending.11 However, in that case the Court of Appeal said the “offending was such that an MPI was available”.12 The Court said it “was a serious drug importation involving significant quantities of cocaine” and “a case for denunciation and deterrence clearly existed”.13 The Court only quashed the MPI because the appellant was one of five defendants and none of the other defendants was subject to a minimum period of imprisonment, not even the organiser.
[27] Counsel for Mr Borisenko referred me to FF (CA383/2016) v R.14 The Court of Appeal quashed a minimum period of imprisonment in that case. However, I note there it was key the appellant had given significant assistance to Customs after being apprehended. More details about the assistance given became available on appeal. The sentence was also more than two years shorter than the appellants’ in this case.
[28] Counsel for the appellants also referred to other cases in which MPIs were not imposed for similar offending.15 These cases all predate the Court of Appeal authorities I have referred to. Several other Court of Appeal cases also show it is open to a Judge to impose a minimum period of imprisonment in these circumstances.16 In any event, there is no rule requiring a minimum period of imprisonment to be imposed for all serious drug offending. It will be a question of discretion for the sentencing Judge. The cases referred to for the appellants do no more than illustrate this.
11 Machado-Pereira v R [2015] NZCA 423.
12 At [8].
13 At [8].
14 FF (CA383/2016) v R [2017] NZCA 294.
15 R v Erenstein HC Auckland S26/03, 21 November 2003; R v Sanchez-Silverio HC Auckland CRI- 2005-092-3931, 24 August 2005 and R v Huang HC Auckland CRI-2006-019-8458, 8 May 2009.
16 R v Zhou [2009] NZCA 365 and Solicitor-General v Huang [2011] NZCA 436.
Conclusion
[29] I am satisfied that there was an error in the sentences imposed on conviction and a different sentence should be imposed because of the Judge’s decision not to recognise any personal circumstances in his assessment of the appropriate sentence for these three appellants. The sentences imposed in the District Court are accordingly quashed.
[30] From the starting point adopted of 11 years imprisonment, there will be discounts totalling 11 months imprisonment for remorse and the appellants’ difficulties as practising Jews in the New Zealand prison system, with a 25 per cent discount for guilty pleas. The end sentence will be seven years and six months imprisonment. The minimum period of imprisonment is to remain.
[31] The appellants are, accordingly, each sentenced to seven years and six months imprisonment, with a minimum period of imprisonment of 50 per cent.
Woolford J
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