R v Bowyer HC Auckland CRI-2009-404-000384
[2011] NZHC 1197
•6 October 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2009-404-000384
THE QUEEN
v
NICHOLAS PHILIP BOWYER
Appearances: A M Wharepouri for Crown
R M Mansfield for Prisoner
Judgment: 6 October 2011 at 9:00 AM
SENTENCING NOTES OF COURTNEY J
Solicitors: Meredith Connell, P O Box 2213, Auckland
Fax: (09) 336-7629 – M Wharepouri
Counsel: R M Mansfield, P O Box 2674 Shortland Street, Auckland 1140
Fax: (09) 368-4473
R V BOWYER HC AK CRI-2009-404-000384 6 October 2011
[1] Nicholas Philip Bowyer, you appear for sentence today having been found guilty on six counts of selling the Class B controlled drug MDMA. These charges each carry a maximum penalty of 14 years imprisonment. Before I make any comments regarding other aspects of sentencing I am going to indicate now that it is my intention to impose a sentence of home detention.
[2] The offending in which you were involved was part of a sophisticated commercial operation involving the importation of large quantities of Ecstasy hidden in gift baskets sent from the UK. A sustained and comprehensive police investigation resulted in the arrest and conviction of several people of whom you are one. Those convicted played various different roles in the importing and distributing process.
[3] Drug offending is regarded seriously in this country. The use of drugs comes at an enormous cost, both in terms of lives and families ruined, of which yours is now one, and money lost from the local economy through lost productivity and the huge amounts of cash drained out for the benefit of overseas drug dealers. In sentencing on offences of this kind the primary objective is denunciation and deterrence as provided for by the Sentencing Act 2002. I am required to take into account certain principles which, relevantly in this case, include the gravity of the offending, the degree of your culpability, the seriousness of the type of offending, the need for consistency in sentencing levels and the consideration of personal circumstances that would make a term of imprisonment disproportionately severe.
[4] Had I been imposing a term of imprisonment, I would have been fixing the starting point by reference to the Court of Appeal’s decision in R v Wallace[1] which recognised the differing roles of those that become involved in drug offending and identified three broad categories for assessing the seriousness of offending. The most serious category is commercial activity on a major scale and it is clear from the evidence that this operation in which you were involved would have fallen into that category for those at the top level. The second category is commercial manufacture or importation on a substantial scale reflecting sophistication and organisation over a
period of time though not involving massive quantities of drugs or prolonged
offending. Those offences would attract starting points between five and eight years. And Category 3 represents commercial operations that are smaller and attract starting points of up to five years.
[1] [1999] 3 NZLR 159 (CA).
[5] The operation in which you were involved was well-planned and sophisticated. The evidence that emerged of the kind of money being made and the amount of pills being supplied makes it clear that there was a high degree of commerciality. A good example of this was Mr Keown’s offending. He was dealing in Christchurch and the evidence showed that he had, on one occasion, purchased
10,000 tablets at a cost of $210,000, which had a street value of between $600,000 and $800,000. Money from the operation was removed from New Zealand by those described in evidence as people who would come in for the money run. Those amounts were hundreds of thousands of dollars at a time, just gone out of this country for the use of overseas drug dealers.
[6] It was an operation, as I have said, that, for those at the higher levels, would have been treated as category 1. I accept, however, that your culpability was at a lower level and you are being sentenced on that basis.
[7] You were convicted on six charges of selling. The first four charges, Counts
2, 4, 6 and 8, were representative charges relating to instances of supply between January and July 2008. The Crown case was that you were a wholesale distributor or middleman and facilitated sales between Mr Frewer, who was higher up the tree, and Mr Voerman and Mr Rinaldi, and that you also sold directly yourself. There was insufficient evidence about the amounts sold on the representative counts. Although Mr Mansfield, for you, has said that you occupied a role that was almost in passing and hardly necessary. I accept Mr Wharepouri’s assessment of the evidence that that is not how the evidence came out and that you were playing a genuine and meaningful role, certainly at the outset of Mr Voerman’s and Mr Frewer’s involvement with one another. Counts 9 and 11 related to the two specific instances of supply to Mr Kouznetsov. He gave evidence from which a conclusion could be drawn that these supplies involved between 1,500 and 2,000 pills.
[8] I do, however, accept Mr Mansfield’s submission that some care needs to be taken in attempting to identify precisely what the amount of pills being supplied on those occasions was.
[9] In identifying an appropriate starting point I would also have had regard to the sentences of others in this group who have now been convicted on similar charges. They are Mr Rinaldi, Mr Purchase, Mr Whitehead and Mr Voerman, who attracted starting points for their various offending of between four years and seven years. I have also had regard to the cases that Mr Mansfield has referred me to that have some similar features.[2] Taking all of those cases into account I would have viewed you as falling within category 2 of Wallace with an appropriate starting point of five-and-a-half years.
[2] R v Catalogna HC Auckland CRI-2007-004-018646, 16 June 2009; R v Campen HC Auckland CRI-
2007-004-018646, 27 August 2010.
[10] I turn then to look at the mitigating features in your case which have brought me to the conclusion that imprisonment is not a proper sentence in this case, and before I do so, I acknowledge your parents here today, your family, your friends and your colleagues. You are a most fortunate person Mr Bowyer. You are now aged 36 years. You clearly come from a supportive and respectable background. Although you have some minor convictions they are now old. You have throughout your adult life shown yourself to be a fine member of the community. You have had good education and good employment. Your work colleagues, employers and clients alike, have provided character references that speak not only of your technical skill but honesty, reliability and trustworthiness in your work context. At the time of your offending you held down a very responsible and well-paid position. I accept that you did not become involved in drug dealing for financial gain and I also accept that the enormous success that you have had in your work life is probably over as a result of these convictions. In your personal life you have shown yourself to be a caring and supportive friend and one prepared to provide real and significant help to those in need. There are many strong character references that attest to your kindness,
empathy towards others and preparedness to step in and shoulder responsibility.
[11] Particularly prominent amongst those who have spoken for you are the co- owners of the leaky building complex in which you were an owner and the chairman of the body corporate. Those other owners have spoken of the hundreds of hours of personal time you have devoted to co-ordinating the litigation and the remediation work that was needed and helping your co-owners through the stress of all of that. In short, you have shown yourself to be a worthy member of society. I accept that your involvement in drugs was out of character, a massive error of judgment on your part and that there is no significant risk of your re-offending. I should say in that regard also, had I been imposing a term of imprisonment it would have been a reduction of 18 months that would have been attributable to these factors.
[12] So that brings me to the other major and, indeed, pivotal, factor in my decision today, which is your health. You suffer from an immune deficiency disorder in the form of the rare condition, X-linked hyperIgM syndrome. I have had the advantage of reading the medical reports and additional information regarding this condition. The immunologist who has treated you since 1987 has provided a report. It seems that you are one of the oldest survivors in the world of this condition. Worldwide there are currently only three survivors over the age of 40 and none over the age of 50. Typical causes of death amongst sufferers of this condition are liver failure, infections, malignancy and auto-immunity.
[13] You currently have three-weekly gammaglobulin infusions to reduce the risk of infection. You are particularly susceptible to infections that might cause liver failure and to pneumonia and other respiratory infections. It is very likely that your life expectancy may only be another ten years or so. It is, I accept, likely that this knowledge which has to have been a significant burden for you throughout your life contributed to your involvement in the drug scene. Significantly, the forms of infection most likely to prove fatal tend to be linked with close living conditions and association with others. I accept that imprisonment would bring with it a real risk of infection and injury which would increase the risk of mortality in your case. Your counsel has emphasised this fact and also the inherent risks of being in the prison system, which is unlikely to be able to respond as quickly as would be needed in the event that you become ill. This is not a criticism of efforts that have been made by both the Crown and your counsel to secure a suitable plan with the Department of
Corrections. And, indeed, a plan has been provided. However, I do accept Mr Mansfield’s concerns that the reality on a day-to-day basis, particularly for example during lock-downs overnight, might just prove more than the system can manage.
[14] In sentencing the courts are able to take account of the fact that imprisonment may be harder on some prisoners because of medical conditions. A reduction to recognise that fact can be made in the terms of imprisonment that are imposed.[3] A balance has to be struck for sentencing judges between recognising this and allowing for the hardship associated with imprisoning a person with the need for the courts to ensure that offences do not go unpunished.
[3] See e.g. R v Verschaffelt [2002] 3 NZLR 772 (CA).
[15] I have to say that it is only by a fine margin that I did decide that home detention was the suitable sentence and in the end it is the very, very high risk of something happening to you in prison that cannot be treated quickly and responsibly that has tipped the balance. So Mr Bowyer, good luck for what remains of your life. I think that you should be humbled and grateful by the level of support that you have had from your family and friends and I actually have no doubt that you will reflect and take most of this opportunity that has been given to you today.
[16] The terms of the home detention will be as follows:
(a) That you are to reside at the address identified in the probation report of [address]. You may leave that place with the consent of the Probation Service for medical treatment and medical appointments. Otherwise the standard conditions for home detention apply.
(b) The term of the home detention will be 12 months.
P Courtney J
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