R v Adams

[2008] NZCA 171

IN THE COURT OF APPEAL OF NEW ZEALAND

CA643/07
CA687/07
[2008] NZCA 171

THE QUEEN

v

GLEN RAYMOND ADAMS
KAELIB HANSEN

Hearing:28 May 2008

Court:Glazebrook, Chisholm and Cooper JJ

Counsel:C Muston for Appellant Adams

J W Watson for Appellant Hansen
M D Downs for Crown

Judgment:18 June 2008 at 3.30 pm

JUDGMENT OF THE COURT

A        MR HANSEN’S APPEAL AGAINST CONVICTION IS DISMISSED. 

B        APPEALS AGAINST SENTENCE BY BOTH MR ADAMS AND MR HANSEN ARE ALLOWED. 

CIn each case the sentence of 11 years imprisonment is quashed and replaced with a sentence of nine years imprisonment with a minimum non-parole period of four and a half years. 

____________________________________________________________________

REASONS OF THE COURT

(Given by Chisholm J)

Table of Contents

Para No

Introduction  [1]
Background  [3]
Mr Hansen’s appeal against conviction  [12]

Importation direction  [12]
Identification direction  [17]
Unbalanced summing-up  [22]

Appeals against sentence   [28]

The appellants  [28]
Sentencing in the District Court  [30]
Mr Adams’ appeal  [35]
Mr Hansen’s appeal  [37]
Crown’s response to both appeals  [38]
Discussion  [41]

Outcome  [57]

Introduction

[1]       Following trial before Judge Wade and a jury in the District Court at Whangarei the appellants were convicted of importing gamma-butyrolactone (GBL) into New Zealand.  GBL is commonly described as a date rape drug.  Both appellants were sentenced to 11 years imprisonment and ordered to serve a minimum non-parole period of five and a half years – CRI 2006-088-000167. 

[2]       Mr Hansen appeals against both conviction and sentence (but not against the minimum non-parole period).  He appeals against conviction on the following grounds: 

(a)     Erroneous directions by the Judge about the importation. 

(b)Failure of the Judge to provide the jury with a direction as to identification evidence.

(c)     Unbalanced summing-up by the Judge. 

Mr Adams’ appeal is confined to his sentence, including the imposition of the minimum non-parole period. 

Background

[3]       At trial the Crown alleged that between January 2004 and April 2005 Mr Adams had imported three 200 litre drums of GBL via Swift New Zealand Limited (Swift), a company specialising in the importation of chemicals.  Those three importations had not been detected by customs.  On the six counts in the indictment arising from those importations the jury found Mr Adams not guilty. 

[4]       Once customs became aware that there was to be a fourth importation they joined with the police in monitoring the importation.  That importation gave rise to count seven in the indictment which alleged that both Mr Adams and Mr Hansen had imported GBL between 28 October 2005 and 12 January 2006.  Both appellants were found guilty on that count and this appeal arises from those verdicts and the resulting sentences. 

[5]       The Crown’s case against Mr Hansen on count seven was that on 9 November 2005 he had arranged payment of $9,007.88 to Swift for the importation of a 200 litre drum of GBL from Japan.  While Mr Hansen does not dispute that the payment was made to Swift, his case was that this payment was for a vehicle that he had bought from Mr Adams. 

[6]       When the 200 litre drum of GBL arrived in Auckland on 29 December 2005 customs replaced a significant portion of the chemical with water and then released it back to Swift for collection by the consignee.  By this time interception warrants had been issued to monitor the private communications of Mr Adams and Mr Hansen.  In addition customs and police mounted a surveillance operation to monitor the collection of the drum from Swift. 

[7]       At 11.07am on 10 January 2006 a customs officer observed a white utility vehicle leaving a property at Whangarei.  There was only one occupant, Mr Adams.  Later the same day the same utility was seen to arrive at the Swift premises in Auckland.  However, by that time it was occupied by two males.  In the meantime an intercepted telephone conversation between Mr Hansen and his mother at 11.39am on the same day included statements by Mr Hansen that he was “halfway to Auckland” and that he was going there to “do some business”.  In a later conversation at 2.08pm that day Mr Hansen said that he was “down in Auckland at the moment”. 

[8]       A customs officer and two policemen observed the utility arriving at the Swift premises at approximately 3pm on 10 January 2006.  Although they were able to see that there were two males in the vehicle, no identification was possible.  The storeman at the Swift premises also saw the vehicle arrive with two men in it.  One of the men came to his office to collect the drum of GBL and both men were involved in loading it on to the truck.  Although the storeman gave a description of the man who came to his office (Mr Adams), he was only able to give a generic description of the other man (caucasian, six foot tall, wearing shorts and boots).  On the Crown case the other man was Mr Hansen.

[9]       After the vehicle left the Swift premises it was observed at various points between Auckland and Whangarei and some photographs were taken.  At each point of observation the vehicle had two male occupants.  Although Mr Adams was identified, there was no evidence at trial identifying the other man as Mr Hansen. 

[10]     The following telephone conversation between Mr Hansen and a friend was intercepted at 9.14pm that evening:

Friend            … Did you get what you wanted in Auckland?

Hansen          Yes.

Friend            Did you?

Hansen          Yes.

Friend            Fair enough.  Oh yeah.

Hansen          Nah, it’s all good.

Friend            Is it.  Have you had some?

Hansen          No.

Friend            Have you?

Hansen          No.

Friend            What?

Hansen          No.

Friend            I can’t hear you, aye.

Hansen          No.

Friend            You are whispering.  Have you got visitors?

Hansen          No.

Friend            So why are you like so quiet?

HansenCause I am sore from some digging.  Okay, so I may go and carry on digging.

When a search warrant was executed the drum of diluted GBL was found to be buried on a property where Mr Hansen was living in a shipping container.  A photograph showing Mr Hansen sitting on the drum before it was buried was also located. 

[11]     Mr Watson helpfully outlined Mr Hansen’s case at trial:  Mr Adams was the importer;  the payment made by Mr Hansen was for the legitimate purpose of paying for the vehicle;  the importation ended when the drum arrived in the hands of customs or, at the very latest, when customs released it to Swift;  although Mr Hansen was one of the persons who was with the vehicle when it arrived back at Whangarei later that evening, he was not one of the two persons who had uplifted the drum from Swift;  the payment to Swift did not constitute active participation in the importation;  and Mr Hansen’s subsequent possession of the drum was not evidence of active participation in the importation because the importation had been completed long before. 

Mr Hansen’s appeal against conviction

Importation direction

[12]     When the Judge was directing the jury about the essential elements of the importation counts he said:

[23]     So what does the Crown have to prove to sheet that charge home against any one of the accused?  You’ll see to establish this charge the Crown must prove beyond reasonable doubt that in relation to the accused whose case you are considering, first of all, that on the occasion alleged, there was an importation of a substance into New Zealand.  Importation commences in fact, with its arrival in New Zealand and continues until such time as the substance comes into the possession of its consignee which means the person who’s ordered it.  So first question, was there an importation?  But that’s not in dispute in this case.  Nobody suggests there was anything else other than an importation.  (Emphasis added). 

Mr Watson claimed that the underlined portion of the direction was erroneous and that with reference to count seven the Judge should have directed the jury that the importation came to an end when the drum of GBL was seized by customs and its composition was changed. 

[13]     This Court discussed the concept of importing a controlled drug in R v Hancox [1989] 3 NZLR 60 at 62:

"To import" involves active conduct; and the bringing of goods into the country or causing them to be brought into the country does not cease as the aircraft or vessel enters New Zealand territorial limits.  Importing into New Zealand for the purposes of s 6(1)(a) is a process.  It does not begin and end at a split second of time.  The element of importing exists from the time the goods enter New Zealand until they reach their immediate destination.  It follows that, as was the case in Saxton v Police, the importer may be convicted under s 6(1)(a) even though the goods are intercepted by customs and never reach the addressee - or are otherwise in transit, that is until any shipping and customs formalities are completed and the consignment is available to the consignee at its immediate destination … the goods have reached their immediate destination when they have ceased to be under the control of the appropriate authorities and have become available to the consignee or addressee.  

In that case the appellant had opened a post box and removed a parcel containing controlled drugs.  It was not her post box and it was common ground that she had not been a party to any importation activities up to and including the time the parcel was placed in the post box.  Her appeal was allowed on the basis that the importation had come to an end when the parcel was placed in the letter box.  

[14]     To support his argument that the intervention of customs and the dilution of the GBL brought the importation in this case to an end, Mr Watson relied on R v Mason CA340/05 16 March 2006 and R v Wickremasinghe CA137/03 21 August 2003.  However, in both those cases the drugs were retained by customs:  see Mason at [18] and Wickremasinghe at [5].That was not the case here.  We accept Mr Downs’ submission that in principle the involvement of customs in this case was no different to items being handled and processed by postal or customs officials when they first arrive in the country.  We also reject the submission that the dilution of the GBL brought the importation to an end.  Notwithstanding its dilution the product in the drum remained a controlled drug.  It follows that the importation did not cease until the consignment was uplifted from the Swift premises.  There was no error in the Judge’s direction. 

[15]     Mr Watson also submitted that the Judge erred by failing to direct the jury that before Mr Hansen could be a party to the importation the Crown had to prove not only an overt act on his part, but also that he intended that GBL be imported into New Zealand. Plainly that submission is without merit. When giving directions about the elements of the importation charges Judge Wade told the jury that the Crown had to prove beyond reasonable doubt that the accused intended that the substance be imported into New Zealand: see his summing-up at [26]. That direction reflected written material the Judge had handed out to the jury. Notwithstanding Mr Watson’s query about whether the written directions before us are the same as those before the jury, it is clear that on the issue of intention the jury was properly directed, both orally and in writing.

[16]     There were no errors in the Judge’s directions about importation.  This ground of appeal has not been made out. 

Identification direction

[17]     Mr Watson argued that the Judge should have given an identification direction and that failure to do so gave rise to a miscarriage of justice.  This argument is based on the premise that there was identification evidence relating to Mr Hansen which triggered the statutory requirement to warn the jury in terms of s 126 of the Evidence Act 2006. 

[18]     The trial commenced shortly after the Evidence Act had come into force.  Section 4(1) provides that “visual identification evidence” means evidence that is:

(a)an assertion by a person, based wholly or partly on what that person saw, to the effect that a defendant was present at or near a place where an act constituting direct or circumstantial evidence of the commission of an offence was done at, or about, the time the act was done;  or

(b)an account (whether oral or in writing) of an assertion of the kind described in paragraph (a)

When the case against a defendant depends wholly or substantially on the correctness of one or more visual (or voice) identifications of the defendant, the Judge must warn the jury of the special need for caution before finding the defendant guilty in reliance on the correctness of any such identification:  s 126(1). 

[19]     In this case, however, those provisions were not brought into play because no witnesses identified or purported to identify Mr Hansen as one of the two men who collected the drum of GBL or as one of the occupants of the utility as it travelled back to Whangarei.  Rather, the Crown invited the jury to infer, by virtue of circumstantial evidence, that Mr Hansen was one of the pair.  That circumstantial evidence arose from the telephone conversations between Mr Hansen and his mother about travelling to Auckland and being in Auckland, the presence of another man with Mr Adams at the Swift premises and on the journey back to Whangarei, the telephone conversation between Mr Hansen and his friend later that night, and his involvement in burying the drum.  We reject Mr Watson’s argument that evidence about subsequent possession of the drum was incapable of supporting the inference that he was one of the two who uplifted the drum from Swift.  To the contrary it was a highly probative component of the circumstantial evidence available to support the Crown case. 

[20]     We consider that this case is on all fours with the decision of this Court in R v Mist CA321/04 22 February 2005.  In that case this Court rejected the proposition that the trial Judge should have given the customary identification warning in a situation where the Crown case relied on circumstantial evidence to identify the accused.  This Court explained that a direction under s 344D of the Crimes Act 1961 (the predecessor to s 126 of the Evidence Act) is only required where there is a direct identification of an accused and not in a situation where the Crown’s case is based on circumstantial evidence of identification.  We do not consider that the Evidence Act has altered that situation.  The underlying purpose of the warning is still to alert the jury to the possibility and dangers of mistaken visual (or voice) identification.  There was no such identification in this case. 

[21]     In any event we cannot understand how an identification warning in terms of s 126 would have advanced Mr Hansen’s case.  Indeed, it may well have counted against him because it could have implied that he had been identified when in fact this was not the case.  This ground of appeal also fails. 

Unbalanced summing-up

[22]     While Mr Watson accepted that in general terms the Judge had put to the jury the various points raised by the defence, his complaint was the Judge then carried out “an assassination” of those points.  That highly destructive approach, submitted Mr Watson, can be contrasted with the way that the Judge approached the points raised by the Crown i.e. recorded the points without critical comment.  Mr Watson claimed that the Judge’s initial direction that questions of fact were for the jury was too far removed in time from the unbalanced treatment of the defence case to prevent a miscarriage of justice. 

[23]     As this Court explained in R v Keremete CA247/03 23 October 2003:

[18]     … A judge's summing up must identify the fundamental facts in issue, be balanced in its treatment of opposing contentions with respect to those facts, and leave the jury in no doubt that the facts are for them and not for the judge. Rival contentions with respect to the factual issues will normally be summarised (R v Miratana, 4 December 2002 CA 102/02) but there is a wide discretion as to the level of detail to which the judge descends in carrying out that task. Treatment of matters affecting the cogency of evidence is not required as a matter of law: R v Foss (1996) 14 CRNZ 1 (CA) at p 4.

[19]     The judge need not, and should not, strive for an artificial balance between the rival cases if the evidence clearly favours one side or the other: R v Hall [1987] 1 NZLR 616 (CA). A judge is entitled to express his or her own views on issues of fact, so long as it is made clear that the jury remains the sole arbiter of fact (R v Hall, supra, at p 625). Any comment on the facts should be made in suitable terms without use of emotive terms or phrases which could lead to a perception of injustice. But provided the issues are fairly presented, the comment may be in strong terms: R v Daly (1989) 4 CRNZ 628 (CA). Inevitably these are ultimately matters of degree and judgment.

More recently that approach was endorsed by this Court in R v Burrett CA264/03 12 February 2004. 

[24]     While it is clear that Judge Wade expressed his views about a number of the points raised by the defence in a reasonably robust fashion, it is important to keep those comments in perspective.  Early in his summing-up the Judge explained to the jury that when it came to questions of fact they alone were the judges, that whatever he might say was “entirely irrelevant”, and that they should put his comments entirely aside unless they happened to agree.  Later in the summing-up there were further indicators that factual matters were for the jury.  

[25]     The defence proposition that the payment of $9,007.88 was for a motor vehicle attracted particularly strong remarks from the Judge.  Having indicated that it was a matter on which the jury would need to use their experience of life, the Judge questioned whether a payment of those precise dollars and cents was likely to be the agreed price of a second-hand car.  He then remarked on the amazing coincidence that the price of a car precisely matched the payment to Swift, down to the last cent.  He ended the discussion on this topic by asking whether the very odd looking figure represented the cost of the importation, “or might it really be the price of a second hand car”.

[26]     When addressing the defence propositions that Mr Hansen was not involved in the collection of the drum from Swift, the Judge traversed the evidence indicating that Mr Hansen was in Auckland when the drug was collected and asked whether this was “just another coincidence”.  He then reminded the jury of the evidence from the storeman but noted (in favour of the defence) that whereas the storeman had described the second man as wearing shorts, the photograph of Mr Hansen indicated that he was not wearing shorts.  After that the Judge commented on Mr Watson’s suggestion to the jury that what had happened was that Mr Hansen:

[65] … gets a lift down to Auckland with Mr Adams, Mr Hansen leaves Mr Adams at that stage, Mr Adams picks up some mysterious second person, Mr Adams and the second person go to Swift, pick up the drum and then the second person leaves and Mr Adams gets back.  But perhaps it does not matter very much because [of] what happens when Mr Hansen gets back and links up with Mr Adams again.  It is Mr Hansen, as I understand it, who is the driver and they drive to Whangarei, stopping twice on the way for no reason at all, and where do they then take this drum?  Do they take it to Mr Adams place, no.  Mr Hansen the man who has been innocently duped into paying for this chemical, he is the one who has it.  It goes to Mr Hansen’s property and is promptly put into the ground there by both Mr Adams and Mr Hansen, and indeed Mr Hansen actually poses for a photograph of himself sitting on top of the drum before it gets put into the ground and when it is put into the ground the identifying labels are all removed. 

The Judge then went on to record that the defence case was that Mr Hansen had nothing to do with the importation and that although he may have paid for the chemical, that was entirely unwittingly. Following that the Judge reminded the jury about the intercepted conversation reproduced above at [10].

[27]     The reality was that the Crown’s case against Mr Hansen was overwhelming.  It was not for the Judge to strive for an artificial balance between the cases that did not exist:  Keremete.  There is no suggestion that the Judge failed to put the defence case to the jury and we are satisfied that when the Judge expressed his views about the various points the jury would have understood that they should reject those views unless they coincided with the jury’s view.  Stepping back and taking an overview we have not been persuaded that there was a miscarriage of justice by virtue of an unbalanced summing-up.  This ground of appeal also fails.  

Appeals against sentence

The appellants 

[28]     At the time of sentencing Mr Adams was 32 years of age.  Although he had five previous convictions, none were relevant for sentencing purposes.  According to the probation officer he had begun using drugs from an early age and had generally been living a transient lifestyle.  Notwithstanding periods when he attempted to overcome his drug abuse problems, he had been a heavy user of drugs for a number of years before his arrest.  Given his minimal offending history he was regarded by the probation officer as having a low risk of re-offending and motivation to rehabilitate himself. 

[29]     Mr Hansen was 31 years of age with 35 previous convictions.  Of those, two arose from possession of drugs, seven from possession of drugs for supply, and two from manufacturing methamphetamine.  At the time of sentencing he was serving a seven year prison sentence for manufacturing methamphetamine and other offending, that sentence having been imposed by the High Court in November 2006.  He had been on bail at the time of the importation.  Like Mr Adams, Mr Hansen was a heavy user of drugs.  At the time of sentencing he was suffering from Crohn’s disease.  The probation officer considered that there was a high risk of Mr Hansen re-offending. 

Sentencing in the District Court

[30]     Not surprisingly Judge Wade rejected a submission on behalf of both appellants that there was no intention of monetary gain.  He noted that the evidence at trial indicated that the 200 litres of GBL had a potential street value of $1,000,000 or more, and that its wholesale value was around $200,000.  The Judge compared those potential returns with the outlay of around $9,000. 

[31]     Although the Judge saw the importation as “brazen” in the sense that the drug was referred to by its proper name and was not hidden in any way, he noted that this reflected the method of importation which was to essentially pretend that the appellants were legitimate industrialists using the drug for legitimate industrial purposes.  Judge Wade considered that the appellants were “equal partners”, with Mr Adams having the knowledge and contacts and Mr Hansen making the payment.  His view was that both appellants had been caught red-handed and that the evidence against them was overwhelming. 

[32]     After traversing the personal circumstances relating to each appellant the Judge turned his attention to the appropriate starting point.  He said that he had derived assistance from R v Wallace and Christie (1999) 16 CRNZ 443 (CA) and R v Rys [2007] NZCA 360 (CA). Having compared this case with Rys he concluded that the 11 year starting point in Rys was appropriate and imposed that sentence on Mr Adams, there being no mitigating factors.  

[33]     In the case of Mr Hansen the Judge noted that the offender had an extremely bad record and had offended while on bail.  The Judge considered that those factors justified an increase of two years to 13 years.  Given ss 83 and 84 of the Sentencing Act 2002 the Judge considered that any sentence he imposed would have to be cumulative on the seven year sentence being served by Mr Hansen.  He recognised that this would effectively produce a sentence of 20 years imprisonment.  After taking into account the totality principle Judge Wade decided that the sentence should be reduced to 11 years imprisonment, being the same sentence as had been imposed on Mr Adams.  That sentence was to be cumulative on the sentence already being served. 

[34]     With reference to the issue of a minimum non-parole period, the Judge noted that this offending was “of the gravest nature”.  He considered that there should be a deterrent element not only to deter both appellants, but to “mark out the gravity of your offending so far as other offenders are concerned”.  Having concluded that two thirds would be excessive, Judge Wade directed that both appellants serve a minimum of one half of the sentence. 

Mr Adams’ appeal

[35]     Mr Muston emphasised that the offending involved an unsophisticated single importation, the absence of subterfuge, and no evidence of any commercial activity beyond the importation itself.  He submitted that the cases cited to this Court, including Rys, did not offer any useful guidance.  In the end, he submitted, it was necessary to come back to the relevant tariff case, Wallace and Christie.  With reference to that decision Mr Muston argued that the offending did not fit into the category carrying a starting point of at least eight years because it did not constitute major commercial offending.  He submitted that the appropriate starting point (and final sentence) for Mr Adams was within the range of five to eight years.  Mr Muston claimed that the sentence of 11 years was out of line with Wallace and Christie and the other cases that had been cited and that it failed to take into account the appellant’s favourable previous record and probation officer’s report. 

[36]     With reference to the minimum non-parole period Mr Muston acknowledged that he had not provided the Judge with any assistance at sentencing because he had not expected a minimum term to be imposed.  Counsel submitted that when imposing the minimum non-parole period the Judge had failed to take into account that the appellant was effectively a first offender with a favourable probation officer’s report.  To the extent that the gravity of the offending prompted the Judge to impose the minimum term, Mr Muston argued that the offending had only given rise to potential harm and that of itself the importation was not the kind of behaviour that required denunciation by the imposition of a minimum non-parole period.  While he accepted that deterrence was a relevant consideration, he warned that there was a risk of double-counting.  Mr Muston also claimed that protecting the community from the offender did not require any weight in this case. 

Mr Hansen’s appeal 

[37]     In support of Mr Hansen’s appeal Mr Watson argued that the Judge had erred in adopting the starting point in Rys notwithstanding that in that case there were multiple importations over a lengthy period involving subterfuge.  Like Mr Muston he also argued that the sentence imposed in this case was out of line with the guideline judgment in Wallace and Christie and with the other authorities.  He agreed with Mr Muston that in all the circumstances the appropriate sentence was within the range of five to eight years. 

Crown’s response to both appeals

[38]     Mr Downs accepted that the relevant guideline judgment is Wallace and Christie.  However, contrary to the appellants’ submissions, he argued that this offending falls within the bracket of “commercial activity on a major scale” attracting a starting point of at least eight years.  While Mr Downs accepted that the offending was not sophisticated he submitted that it was by no means haphazard and that Mr Adams had effectively convinced Swift that he was a legitimate business person importing a legitimate product. 

[39]     Given the lethal nature of the drug and the large quantity involved, Mr Downs submitted that the Judge’s starting point of 11 years, while stern, could be defended.  It involved considerably more GBL than was involved in R v Palmer [2007] 3 NZLR 313 (CA) and a similar amount of GBL to Rys in which a starting point of 11 years was approved.  Mr Downs also submitted that Mr Adams’ three previous importations provided a context for his sentencing, as did Mr Hansen’s bail status at the time of his offending. 

[40]     With reference to Mr Adams’ appeal against the minimum non-parole period, Mr Downs submitted that the seriousness of the offending justified the imposition of a minimum non-parole period.  He also reminded the Court that this component of the appeal constituted an appeal against the exercise of a discretion.

Discussion

[41]     Given the trial Judge’s conclusion that the appellants were “equal partners” in the importation and the approach of counsel who did not seek to distinguish between the two appellants, we will determine their appeals together.  In any event, as Judge Wade recognised, the totality principle will have the effect of reducing Mr Hansen’s sentence to the same level as Mr Adams’ sentence (except to the extent that Mr Hansen’s sentence will be cumulative on the sentence he is already serving). 

[42]     For offending involving Class B controlled drugs Wallace and Christie remains the tariff case:  R v Fatu [2006] 2 NZLR 72 at [46] (CA). In Wallace and Christie this Court reviewed earlier decisions relating to the importation of Class B drugs and concluded:

[30]   The cases reflect a considerable range in the seriousness of offending. They show that for commercial activity on a major scale the starting point before any allowance for mitigating factors for a principal offender will be in excess of 8 years and in the very bad cases up to 14 years, especially where repeat offending is involved. For major offending of this kind there will likely be numerous separate offences so that the 14-year maximum penalty will have little direct relevance to the total offending.

[31]   Commercial manufacture or importation on a substantial scale reflecting sophistication and organisation with operations extending over a period of time though not involving massive quantities of drugs or prolonged dealing calls for a starting point in the range 5 to 8 years.

[32]   For smaller operations, but representing commercial dealing, starting points of up to 5 years are appropriate. This necessarily must be a broad category to enable sentencers to reflect the many varied circumstances that can arise.

At [34] the Court explained that the foregoing review was intended to facilitate sentencing hearings on Class B drug offending and aid consistency in sentencing. 

[43]     Since GBL became a Class B controlled drug three cases involving its importation (Rys, Palmer, and R v Stark CA104/06 31 July 2006) have reached this Court.  Given that the sentencing Judge placed considerable reliance on Rys we will begin by considering that decision. 

[44]     Rys involved the importation of 159.3 litres of GBL over a period of 14 months.  A further 47.7 litres of the substance was intercepted before the importation was complete.  Thus the total volume of GBL was similar to the importation in this case.  There were, however, additional charges of importing GHB and money laundering. 

[45]     In the High Court MacKenzie J decided that if the GBL offending had stood alone his starting point would have been 11 years.  However, taking into account the charges relating to GHB and money laundering he increased that starting point to 12 and a half years and then added another year for the fact that Mr Rys had continued offending while on bail, thereby arriving at a total of 13 and a half years.  After allowing a 20 per cent discount for Mr Rys’ guilty plea and health, MacKenzie J arrived at a final sentence of ten and a half years imprisonment. 

[46]     On appeal this Court described MacKenzie J’s starting point of 11 years for the GBL charges as:

[29]     … at the top of the permissible range but not of itself manifestly excessive.  It gives proper weight to the harm caused by both GBL and GHB, as the Judge emphasised, and the need to denounce and deter.  It also recognises Mr Rys’ careful planning and premeditation, reflected in the sophisticated and profitable nature of his activities.

But the Court concluded that the adjusted starting point of 13 and a half years was too high and that a starting point of 11 years was sufficient to recognise the totality of Mr Rys’ culpability.  After allowing a 20 per cent discount for Mr Rys’ guilty plea and medical condition, the Court arrived at a sentence of seven and a half years imprisonment.  In arriving at that conclusion the Court discussed and analysed the starting point in Palmer to which we now turn. 

[47]     In Palmer the Solicitor-General appealed against a sentence of two years imprisonment together with a fine of $100,000 for the importation of GBL, the supply of GBL and the possession of GBL for supply.  Over a seven month period Mr Palmer had imported 125 litres of GBL in 22 consignments.  A financial analysis of Mr Palmer’s records indicated that he had received unexplained income of at least $100,000 during the relevant period.  Mr Palmer pleaded guilty. 

[48]     On the basis that class B drugs worth at least $500,000 had been imported over more than nine months and that an income stream of at least $100,000 had been produced, this Court considered that the offending called for a minimum of seven years as the starting point.  It observed that this was so even if the operation lacked sophistication.  The appeal was allowed and the sentence of two years imprisonment was quashed and replaced with a three year sentence.  The fine stood. 

[49]     Finally, in Stark this Court allowed an appeal against a sentence of four years imprisonment arising from ten charges of importing GBL over a period of 15 months.  Mr Stark was a co-conspirator with Mr Rys. After pleading guilty Mr Stark indicated that he was willing to give evidence against Mr Rys, but at the time of sentencing he had not given that evidence.  Wild J took a starting point of eight years and allowed a discount of four years for the guilty plea and co-operation with the police. 

[50]     This Court considered that the starting point of eight years was well within range and that the real issue was whether the discount of 50 per cent for the guilty plea and co-operation was sufficient.  While it accepted that the 50 per cent discount was appropriate in the circumstances prevailing at the time the appellant was sentenced by Wild J, a further 10 per cent was allowed to reflect that he had made good his promise and that his evidence at depositions had prompted Mr Rys to plead guilty.  The sentence was reduced to three years and six months accordingly. 

[51]     It seems that in adopting the starting point (which also represented the final sentence) of 11 years imprisonment, Judge Wade was heavily influenced by Rys.  He proceeded on the basis that the importation in Rys involved an “overall total of just under 160 litres of GBL” and that the quantities in this case were somewhat higher. However, as mentioned earlier (above at [44]), Mr Rys actually imported a little over 200 litres of GBL (see [27] of the judgment of this Court) so the quantity was in fact very similar. Although the Judge made reference to the fact that there were multiple importations in Rys, he does not appear to have placed much weight on that factor.  In our view multiple importations of a controlled drug involve a significantly higher degree of culpability than a single importation of a similar quantity.  That is because each importation involves an element of planning and pre-meditation.  It follows that any comparison between cases should reflect that factor. 

[52]     Another feature that distinguishes Rys from this case is the sophistication of the operation.  The consignments in Rys were sent to a number of fictitious people at different addresses, false packaging was used to conceal the drugs and avoid detection, and telegraphic transfers were utilised in a way that made detection very difficult.  While there was, of course, an element of subterfuge by the appellants to the extent that Swift was led to believe that the GBL was to be used for legitimate industrial purposes, it was well removed from the sophistication of Mr Rys’ operation.  Again a comparison of the two cases needed to take this factor into account. 

[53]     Given those distinguishing features we have concluded that Judge Wade erred when he adopted the Rys starting point off 11 years.  On the other hand, we have not been persuaded that the starting point should have been as low as five to eight years as contended by both Mr Muston and Mr Watson. 

[54]     As Judge Wade rightly recognised, this importation involved a very large quantity of GBL which was capable of providing a very high return to the appellants. Notwithstanding that there was only one importation and no evidence of dealing, we are satisfied that it could be accurately described as “commercial activities on a major scale” justifying a starting point in excess of eight years in terms of Wallace and Christie (see above at [42]).  As Judge Wade recorded, both appellants fully intended to make a substantial financial return and earlier in his sentencing remarks the Judge had discussed the harmful and potentially fatal effects of this drug.  We have no doubt that this offending called for stern denunciation and a sentence sufficient to deter not only the appellants but others. 

[55]     In Palmer this Court accepted that a starting point of a “minimum” of seven years was called for where there had been a significantly smaller quantity of GBL (125 litres), albeit by way of multiple imports.  It also needs to be kept in mind that in that case there was a fine of $100,000.  And in Stark the Court considered that a starting point of eight years was “well within range”.  In our view the appropriate starting point in this case was nine years.  Given that there are no mitigating features and taking into account the totality considerations mentioned above at [41], that will be the final sentence for both appellants.

[56]     We reject the contention that the Judge erred in principle by imposing a minimum non–parole period for Mr Adams.  In terms of s 86 of the Sentencing Act, Judge Wade was entitled to take into account the seriousness of the offending and the fact that the statutory period would be insufficient to deter both the appellants and other persons from this type of offending.  We have no sympathy for the submission that there was only potential harm and that the behaviour did not require denunciation.  But for the intervention of customs and the police this importation had the potential to cause enormous misery and harm to others while producing a very large financial profit for the appellants.  Such conduct calls for the highest condemnation. 

Outcome

[57]     Mr Hansen’s appeal against conviction is dismissed. 

[58]     The appeals against sentence by both Mr Adams and Mr Hansen are allowed.  The sentences of 11 years imprisonment imposed on each appellant are quashed and replaced with sentences of nine years imprisonment.  Except to the extent that the 50 per cent minimum non-parole period will now be reduced to four and a half years, Mr Adams’ appeal against the minimum non-parole period is dismissed. 

Solicitors:
Crown Law Office, Wellington