R v Brown HC Auckland CRI-2008-004-020453

[2011] NZHC 349

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2008-004-020453

THE QUEEN

v

RONALD TERRENCE BROWN

Hearing:         3 February 2011

Counsel:         R M A McCoubrey for the Crown

J Haigh QC for the Prisoner

Judgment:      3 February 2011

SENTENCING NOTES OF WOOLFORD J

Solicitors:

Crown Solicitor, DX CP24063, Shortland Street, Auckland 1140

J Haigh QC, DX CP20536, Shortland Street, Auckland 1140

R V BROWN HC AK CRI-2008-004-020453 3 February 2011

Introduction

[1]      Mr Brown you can remain seated while I pass sentence but I will ask you to stand at the end when I impose the particular term of imprisonment which is inevitable in these circumstances.

[2]      Ronald Terrence Brown, you appear for sentence today having pleaded guilty to the following charges on 20 October last year, in the week immediately preceding your trial.  First of all, importation of a Class A controlled drug, namely, LSD on 25

April 2008.  Secondly, four charges of importation of a Class B controlled drug on

13 March 2006, 9 December 2006, 23 June 2007 and 11 December 2007.  Thirdly, conspiracy to import a Class A controlled drug between 26 March 2008 and 12

August 2008.  Fourthly, supply of a Class B controlled drug between 14 March 2006 and 12 August 2008.   Fifthly, possession for supply of a Class B controlled drug, namely, Ecstasy on 12 August 2008.  Sixthly, using a false passport on 16 February

2008; and lastly, money laundering between 25 October 2005 and 12 August 2008.

[3]      The maximum penalty for importing a Class A controlled drug is life imprisonment.   The maximum penalty for importing a Class B controlled drug, conspiracy to import a Class A controlled drug, supply of a Class B controlled drug and possession for supply of a Class B controlled drug is 14 years imprisonment. The maximum penalty for using a false passport is 10 years imprisonment.   The maximum penalty for money laundering is seven years imprisonment.

[4]      In relation to your sentencing the Court has been assisted by the following materials submissions from the Crown, detailed submissions from your counsel, and pre-sentence report filed by the Probation Service.

[5]      I have  also  heard careful  submissions  from  your counsel  today.    I have listened attentively to what your daughter has told me today.  I have also read your letter to me.  So all of those matters have been considered and may I add that the submissions of your counsel, Mr Haigh, were thorough, well directed and put the very best light that could be put on your offending.

Relevant facts

[6]      As for the facts of the matter, in February 2008 information was received from the Australian Federal Police in relation to the importation of 28 kilograms of the Class A controlled drug methamphetamine concealed in a granite sculpture which had been imported into Australia on 18 January 2008.   Inquiries in the country of origin, Lithuania, revealed that a similar consignment had also been sent to New Zealand in December 2007.  Subsequently three further importations of granite items from Lithuania were identified as having been sent to New Zealand. The dates of the four importations were 13 March 2006, 9 December 2006, 23 June 2007 and 11

December 2007.  These are counts 1 to 4 inclusive. All four consignments had Class

B controlled drugs concealed in them. You were instrumental in their importation.

[7]      The   exact   quantity   of   Class   B   controlled   drugs   contained   in   each consignment is unknown.   However, the scale of those importations can be ascertained both from the quantity of drugs seized by the Australian Police and the amount of sale proceeds subsequently laundered by you, which was approximately

$4.1 million.  Count 5 is a specimen charge relating to the supply to others of the drugs you imported.

[8]      As a result of the information received from the Australian Federal Police, on

26 March 2008 the Auckland Police Drug Squad commenced an electronic interception warrant investigation codenamed “Operation Keyboard”.   You were a primary target of the interception warrants.   According to informant information gathered prior to the commencement of the investigation you were receiving controlled drugs from an overseas associate named Rokas Karpavicius who was a Lithuanian national who had left New Zealand in 2001 while facing charges of importing the Class A controlled drug cocaine.

[9]      The controlled drugs sent by Mr Karpavicius were said to be contained in granite items that you had arranged to be shipped from Lithuania.  Cash payments for the drugs were believed to have been carried out by Mr Karpavicius arranging associates to travel to New Zealand to either remit money back overseas via telegraphic transfers or by physically carrying out the cash themselves.

[10]     As a result of this information it was established that two close associates of Mr  Karpavicius  named  Martynas  Cikas  and  his  girlfriend  Irina  Mejeraite  had travelled to New Zealand in 2007 to remit money back overseas on behalf of the drug syndicate.

[11]     While both Mr Cikas and Ms Mejeraite were in New Zealand at various times in  2007  you  supplied  approximately  $1.3  million  in  cash  to  them  which  they remitted out of New Zealand to various overseas bank account holders, including a company named as Franka LLC.

[12]     During the first of what became five interception warrant periods between

26 March  2008  and  12 August  2008  it  was  established that  you  were in  direct communication with Mr Karpavicius via cellphone, encrypted email and latterly an internet calling programme known as ichat.

[13]     Despite being on the unemployment benefit or the sickness benefit for about

20 years, you were the owner or part-owner of premises known as the K Road Ballroom or the Pull Lounge Bar, which is a bar, pool hall and music venue in Karangahape Road. As well as being the part-owner of these premises you were also the owner of six motor vehicles being a 2007 Porsche GT3, a 2007 M3 BMW, a

2003 M3 BMW, a 2006 VW Golf R32, a 2006 VW Passat and a 2004 BMW Mini. These vehicles were all registered in the names of persons or companies closely associated with you and had a value at the time of approximately $440,000.

[14]     As  part  of  the  investigation  a  covert  search  warrant  was  executed  on

27 March 2008 at commercial premises of Unit J, 61 Hugo Johnson Drive, Penrose to which the two 2007 drug importations were delivered.  Located in the warehouse were a number of granite objects.  Apart from photographing these objectives they were left in-situ within the premises.

[15]     On 17 April 2008 you remitted $255,000 to a bank account in the name of

Franka LLC in Lichtenstein.

[16]     On 25 April 2008, New Zealand Customs intercepted a package that had been sent from Spain and addressed to an associate of yours under an alias.  The package consisted of a Spanish version of a Harry Potter book.  Inside the spine of the book was 35 tabs of the Class A controlled drug LSD.  This is count 7.  The package was inadvertently shown to be with New Zealand Customs for a 10 minute period on the internet track and trace postal system website.  As a result of that, when the package was delivered to your associate on 29 April 2008 he contacted the freight forwarding company and  sent  the  package  back  claiming  it  was  not  for  him.    Subsequent conversations intercepted between you and Mr Karpavicius identified that you were aware of the interception of the package by the authorities prior to its delivery to your associate and that you had advised your associate to have the package returned. In subsequent conversations Mr Karpavicius advised you that it did not matter that the sample LSD package had been intercepted by the authorities because his LSD supplier guaranteed the best quality product.   Later analysis of this packaging identified fingerprints belonging to Mr Karpavicius on it confirming he was the sender of the package.

[17]     Due to the interception of the consignment of drugs in Australia contained in granite  objects  and  the  interest  of  the  New  Zealand  Police,  this  method  of importation had been exposed.   So while a new method of importation was being discussed  you  and  Mr Karpavicius  continued  to  plan  an  import  of  a  Class  A controlled  drug  into  New  Zealand.    This  is  count  6.    During  discussions  with Mr Karpavicius you discussed travelling to Spain to meet with him to sort out future dealings.

[18]     It was established that you had previously travelled to Spain to meet up with Mr Karpavicius on 16 February 2008 returning to New Zealand on 22 March 2008. Inquiries established that you do not travel on your own New Zealand passport instead travelling on a New Zealand passport under the name of a friend of yours, which was issued in 2001 and contained a photograph of you in it.  This is count 9. The false passport was later located in a safe deposit box rented by an associate of yours, Kellie Simanu.

[19]     It  was  also  established  that  you  were  finding  it  difficult  to  remit  large quantities of cash out of New Zealand to Mr Karpavicius.  In order to alleviate the problem of facilitating the transfer of money from New Zealand to the drug suppliers in Europe, it was arranged that two associates of Mr Karpavicius, namely Messrs Martynas Cikas and Donatas Jukna would travel to New Zealand to remit money provided to them by you back overseas as Mr Cikas and Ms Mejeraite had done in the previous year.

[20]     On 21 May 2008 Messrs Cikas and Jukna arrived in New Zealand.  Prior to their arrival you had arranged for them to stay at the Best Western President Hotel in Auckland City for the first night of their stay.  During the visit of Messrs Cikas and Jukna covert surveillance by the Police observed them visiting a number of financial institutions where they either remitted money overseas or changed New Zealand dollars into US dollars and/or Euros.

[21]     On 5 June 2008 Messrs Cikas and Jukna departed New Zealand.  A search of their luggage was undertaken by New Zealand Customs pursuant to s 151 of the Customs and Excise Act 1996.  Located in their luggage was a large quantity of cash in United States and New Zealand dollars and in Euros.   In total, €37,695, NZ$122,400 and US$99,300 were located within their bags. Also located were false Lithuanian passports that Messrs Cikas and Jukna had used as identification while conducting their financial transactions in New Zealand.  The cash and false passports were seized by the Police pursuant to the search warrant and they departed New Zealand  without  knowing  that  their  money  and  passports  had  been  seized  by New Zealand Customs.

[22]     On 6 June 2008, the Lithuanian attaché to Europol advised the New Zealand Police that Messrs Cikas and Jukna had been subject to search by the German Customs Service and located by German Customs officers in the carry-on luggage of Mr Jukna was €17,000.  €15,000 was seized by the German Customs Service until such time as Mr Jukna was able to provide a reasonable explanation as to why he was in possession of the cash amount.

[23]     You arranged for your associate Kellie Simanu to type out a letter that was later  forwarded  to  the  German  Customs  Service  under  your  brother’s  name requesting a return of the Euros taken from Mr Jukna.  In this letter you purport to be his brother claiming that the money taken from Mr Jukna had been loaned to him by you and asked that it be banked into the account of Ms Mejeraite.

[24]     On 10 June 2008, a search warrant was executed at the business premises of the ASB Bank vaults, corner Albert and Customs Street, Auckland City where both you and your associate Ms Simanu held safe deposit boxes.  Located within the safe deposit box used by you were four bundles of $100 notes which were estimated to total $104,000.  Located within the safe deposit box rented out by Ms Simanu were three false passports.

[25]     Intercepted  communications  disclosed that  you  continued  to  discuss  with Mr Karpavicius different methods of transferring money to him, namely by sending another associate to New Zealand, or by using an unknown female associate of yours that was travelling to South Africa, or to transfer funds via a company set up by your associate  named  Chamo  Ltd  to  companies  believed  to  have  been  set  up  by Mr Karpavicius overseas. You used a number of associates to assist in the transfer of money including Ms Simanu, Ms Sauer and Joni Te Waa.

[26]   As a result of an intercepted communication between you and Lennard Stevenson on 6 July 2008 a search warrant was executed at an address in Mt Albert. In the conversation there had been reference to a supply of Ecstasy that you had given to Mr Stevenson in order to supply to an unknown person who had not yet paid for them.  When the search warrant was executed there was found to be a Kleensac containing a number of Ecstasy tablets in whole form, broken into pieces and in powder form.   Analysis undertaken by ESR established that the total number of tablets in whole or in broken form totaled 1,319.  If sold at street level in bulk this amount of Ecstasy would have a value of at least $26,000.

[27]     You continued to plan to arrange the transfer of money from New Zealand to Europe in furtherance of your drug dealing activities.  On 2 August 2008 you made arrangements  to  book  a  room  at  the  Best  Western  President  Hotel  for  another

associate of Mr Karpavicius named Povilas Grigaliunas who was due to arrive in New Zealand on 5 August 2008 and leave on 12 August 2008.  Prior to his departure from New Zealand you handed Mr Gigaliunas €100,000 to take back overseas for Mr Karpavicius.

[28]     On 12 August 2008, Operation Keyboard was terminated by executing a number of search warrants at various addresses.  At your address was a small plastic container containing a mixture of Ecstasy tablets and powder. This is count 8. There was a total of approximately 1,000 tablets if the powder had been reconstituted back into tablets. Again, if sold at street level in bulk this amount of Ecstasy would have a value of at least $20,000. Also located was $6,000 in cash.  Located in a safe at your business premises was a further amount of cash, approximately $60,000.  Located in your safety deposit box was a further amount of cash of approximately $300,000.

[29]     The final charge to which you have pleaded guilty is count 10 which relates to the money laundering activities you engaged in utilizing the proceeds of sale of the drugs you were instrumental in importing.   The total amount specified is approximately $4.1 million over a three year period.

Pre-sentence report

[30]     The Probation Service has compiled a pre-sentence report about you.   The Probation  Officer  noted  you  are 65  years old  of European,  Samoan  and  Maori descent.   You have previously been married and have four children, two to one partner and the other two to different partners.  You say you continue to maintain a good relationship with them all.

[31]     You worked most of your life as a seaman but more recently you have been in receipt of the unemployment benefit or the sickness benefit.

[32]     You admit to using both alcohol and drugs prior to your incarceration.  Your alcohol usage does not appear to have been harmful but you have been using Ecstasy for nearly 20 years. You admit this is problematic.

[33]     Your daughter was also interviewed.  She is in general supportive.

[34]     You concurred with the majority of facts provided in the summary although you dispute the Class A controlled drug which I take to be LSD stating that it was never found in your possession.  By way of explanation for the offences that you say you met your criminal associates through work as a seaman.  You say that Ecstasy was commonly used by seaman at the time.  You appear genuinely remorseful for your offending and in particular your involvement with placing drugs in the wider community.

[35]     You stated to the probation officer that you were not the “main man” of the drug operation and disclosed that the main organisers were overseas and not charged. You were, however, in my view, a principal in the drug operation in New Zealand in constant contact with the main overseas organisers and did arrange to involve others in  aspects  of  the  operation  including  the  extensive  money  laundering  activities carried out on behalf of the organisation.

[36]     You admitted the offending came about because of  your greed and  your addiction.  I agree with that candid self assessment.

[37]     However, your motivation to change is assessed as high and the risk of re- offending is assessed as low.

[38]     However, I must say that the recommendation of the probation officer as to the appropriate sentence, namely home detention is completely unrealistic.   Your counsel, Mr Haigh, will have explained that to you.  He is quite right.

[39]     The devastation caused  by drugs in our community means  that the only appropriate response is a substantial term of imprisonment.

Purposes and principles

[40]     Now in the sentencing exercise, the Sentencing Act requires that I keep a number of purposes and principles in mind.  In your case, I have specific regard for the following purposes of sentencing as set out in s 7 of the Act.

(a)      The need to hold you accountable for the harm done to the community by your offending;

(b)      The promotion of a sense of responsibility in you for that harm; (c)    The need to denounce your conduct;  and

(d)The need to deter you, and others like you, from committing the same or a similar offence.

[41]     In sentencing you today, I also take into account the principles of sentencing from s 8 of the Sentencing Act including those requiring that I must take in to account:

(a)      The gravity of the offending and the degree of culpability in that offending;

(b)The seriousness of the type of offences in comparison with other types of offences, as indicated by the maximum penalty prescribed for the offences;

(c)      The desirability of consistency in sentencing so that similar offenders receive similar sentences for similar offences; and

(d)The imposition of the least restrictive outcome that is appropriate in the circumstances.

Aggravating and mitigating features of the offending

[42]     I  am  of  the  view  that  there  are  significant  aggravating  features  of  the offending.  They are listed by the Crown in its submissions and accepted by your counsel. They are:

(a)       The lengthy period of time over which the offending occurred;

(b)The high level of commerciality as reflected in the proceeds of sale of the drugs;

(c)      The planning and premeditation involved; and

(d)      The level of sophistication and organisation involved.

[43]     As for the mitigating features of the offending your counsel has suggested that the sole mitigating feature is that you were not the “main man” which is the term you used to the probation officer but nonetheless I do not accord that much weight because, in my view, you were a principal in the organisation, very much near the top of the organisation.

Authorities

[44]     I have received extensive submissions from both the Crown and your own counsel as to the appropriate sentence.

[45]     Both counsel have referred me to R v Wallace & Christie.[1]   In that case the

[1] R v Wallace & Christie [1999] 3 NZLR 159 (CA).

Court of Appeal stated:

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 eight 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.

[46]     The Court of Appeal in that case observed that a starting point of between 12 and 14 years imprisonment for Mr Wallace was within range in respect of dealing in methamphetamine.   That was when it was still a Class B controlled drug.   Mr Wallace and his wife had unexplained income of just over $1 million from his drug dealing.

[47]     Another case to which both counsel have referred me is R v Van Lent.[2]  Again the Court of Appeal held that a starting point of 14 years imprisonment would have

been appropriate in respect of dealing in MDMA or ecstasy.  The sentencing Judge had inferred that Mr Van Lent had also received funds in excess of $1 million.

[2] R v Van Lent CA166/99, 29 September 1999.

[48]     Your counsel has also referred me to a number of other authorities which I found useful, including R v Haarhaus,[3]  R v De Bruin & Sorby,[4]  R v Dora[5]  and R v Atias.[6]    In Haarhaus, the starting point adopted was 15 years imprisonment; in De Bruin & Sorby 13 years imprisonment in respect of Mr De Bruin and 11 years in respect of Mr Sorby; in Dora 11 years imprisonment and in Atias 10 years imprisonment in respect of three offenders, none of whom could be described as the

mastermind in the drug dealing.   Finally, both counsel acknowledged that in accordance with the Court of Appeal decision in R v Xie,[7]  I am not constrained by the maximum sentence of 14 years imprisonment for a single offence.  In respect of these four counts, that is the counts of importation of the Class B controlled drug, you are in fact liable to a maximum sentence of 56 years.

[3] R v Haarhaus HC Auckland CRI-2007-004-18646, 24 July 2009.

[4] R v De Bruin & Sorby HC Auckland CRI-2005-404-342, 9 August 2006.

[5] R v Dora HC Auckland CRI-2003-004-35102, 26 August 2004.

[6] R v Atias HC Auckland T025837, 14 November 2003.

[7] R v Xie HC Auckland CRI-2005-004-26200, 24 April 2007.

[49]     In Xie, the Court of Appeal reiterated the key principles when sentencing for multiple offending.   They are,  firstly,  with  multiple offences  the sentence must reflect the totality of the offending.   Secondly, in respect of multiple offences the Court will not insist that the total sentence be arrived at in any particular way. Thirdly, the total sentence must represent the overall criminality of the offending and the offender.

Starting point

[50]     Having considered the matter overall Mr Brown, I am of the view that a starting point of 14 years imprisonment is proper to reflect the scale of the offending while at the same time recognising that you were by and large a dealer in Class B controlled  drugs.   This  is  consistent  with  a starting point  adopted in  Van  Lent. However,  Van  Lent  had  no  previous  convictions  and  you  have  significant  and

relevant previous convictions.

[51]     You first appeared before the courts in 1963.   You have some 50 previous convictions.   They include violent offending, such as assault,  assault on Police, aggravated assault, fighting in a public place, injuring with intent, rape, speaking threateningly, assault of law enforcement officers and assaulting customs officers. You also have convictions for property offending including theft, shoplifting and receiving.   Finally and significantly, in my view, for present purposes, you have convictions for drug offending including cultivating cannabis, possessing cannabis and conspiracy to supply heroin.

[52]     You have been subject to imprisonment on many occasions.   You received seven years imprisonment from this Court in 1985 for conspiracy to supply heroin. Here you are before the same Court now having pleaded guilty to conspiracy to import a Class A controlled drug.  But today that is not the lead offence for which you are to be sentenced.

[53]     I,  therefore,  uplift  the  starting  point  for  the  significant  and  relevant convictions.  You appear to have not learn anything from the sentences imposed for those serious offences.  While I acknowledge the principle that I should not increase a sentence that would otherwise be appropriate merely on account of your previous convictions, s 9(1)(j) of the Sentencing Act 2002 obliges me to take them into account as an aggravating feature to the extent that they are applicable.  I do so in order to uplift the starting point for you to 15 years imprisonment.

[54]     Using 15 years imprisonment as a starting point, what further adjustment is needed to arrive at an end sentence?  You are 65 years of age and your health is not good.  You had a stroke in 2006 that left you with right-sided hemianopia.  You have high blood pressure and are at appreciable risk of having another stroke or a heart attack while in prison.  Somewhat surprisingly perhaps, you still have the love and support of your family.  I have read the letters from your wife, two daughters, a son- in-law and a daughter-in-law and, as I say, I have heard from one of your daughters today. You are fortunate indeed Mr Brown to retain their love and affection.

[55]     You are somewhat of an enigma to me.  I have read your letter which you say is the first you have written to a High Court Judge on sentencing.   You rightly

acknowledge at the outset that I must be thinking to myself this stupid person has obviously not learnt anything.  But you then go on to outline your life experiences with a great deal of regret.   You say you feel privileged that your family has not abandoned you and state that frankly you do not deserve them. You tell me that your last 30 months on remand awaiting trial has shown you the damage caused to other inmates by drug addiction and it is not nice knowing that in a round-about way you are responsible for the senselessness of it all.   You conclude by taking full responsibility for your wrongdoing and express the hope that you do not die in prison.

[56]     There are some that say the only cure for criminality is aging.  It seems to me that your age and health may now have brought about some change in your attitude. However, as would have been explained to you by your counsel, personal circumstances count for little in sentencing for large scale drug offending such as yours.   Society demands deterrence, not so much personal deterrence, but much more so general deterrence.

[57]     I  am,  however,   able  to  give   you  some  discount  for   your  personal circumstances that is your age and health, your guilty pleas and your remorse as demonstrated by your actions after your arrest.  I assess the discount available to you for your personal circumstances, the guilty pleas and the assistance you have given the authorities  in  a global  way at  four  years imprisonment,  or over 25  percent discount. This means that the final sentence to be imposed in respect of counts 1 to 4 is one of 11 years imprisonment.

[58]     I would be grateful if you would now stand Mr Brown.

Sentence

[59]     So  in  respect  of  each  counts  1  to  4  you  are  sentenced  to  11  years imprisonment.   All  other  sentences  will  be  concurrent.    On  count  5,  being  the specimen charge of the supply of a Class B controlled drug over a two and a half year period, you are also sentenced to 10 years imprisonment.   On count 6, the conspiracy to import a Class A controlled drug, you are sentenced to eight years

imprisonment.  On count 7, the importation of the LSD tabs, you are sentenced to four years imprisonment.   On count 8, the possession of MDMA or ecstasy for supply, you are also sentenced to three years imprisonment.  On count 9, the use of a false passport, you are sentenced to 12 months imprisonment.  Finally on count 10, the money laundering charge, you are sentenced to five years imprisonment.   All sentences are concurrent.  So that is a total sentence of 11 years imprisonment.

[60]     Under s 86(4)(a) of the Sentencing Act I am able to impose a minimum term of up to two-thirds of the full term of the sentence.  In cases of very serious drug offending  in  which  sentences  greater  than  nine  years  have  been  imposed  it  is common for a minimum term to be imposed.  In R v Aram[8]  the Court stated that it was “almost invariable in cases of very serious drug offending that the criteria for a s 86 order are made out”.  In your case, it is my view that it is appropriate to impose

a minimum term of imprisonment because release after one third of your sentence would represent insufficient denunciation, punishment and deterrence in all the circumstances.  The minimum term can, however, be reduced somewhat because of your age, ill health and other factors.  I therefore order a minimum non-parole period of five years imprisonment.  Anything less would not give sufficient recognition to your role as a principal in substantial drug importation operations carried out by you over a number of years.

[8] R v Aram HC Auckland CRI-2004-004-7049, 12 October 2006.

[61]     Finally, I make a recommendation that your sentence be served in the Spring

Hill Corrections Facility so that you have more immediate access to your family and whanau.

Woolford J