R v Davis
[2005] NZCA 246
•20 October 2005
IN THE COURT OF APPEAL OF NEW ZEALAND
CA440/04
THE QUEEN
v
ANTHONY EDWARD DAVIS
CA13/05
THE QUEEN
V
STEPHEN MURRAY COLLINSON
Hearing:13 October 2005
Court:Robertson, Baragwanath and Heath JJ
Counsel:M F Laracy for Crown
P J Kaye & D Beston for Respondent Davis
S J Bonnar for Appellant Collinson
Judgment:20 October 2005
JUDGMENT OF THE COURT
AThe Solicitor-General’s application for leave to appeal is granted. The sentence of seven years’ imprisonment is quashed and in its place Mr Davis is sentenced to concurrent terms of ten years’ imprisonment with a minimum non-parole period of five years on each count.
BMr Collinson’s appeal against sentence is allowed only in respect of the minimum non-parole period which is quashed.
____________________________________________________________________
REASONS
(Given by Robertson J)
Table of Contents
Para No
INTRODUCTION [1]
THE FACTUAL POSITION [8]
THE DAVIS SENTENCE [22]
THE MORGAN SENTENCING [36]
THE DAVIS APPEAL [43]
THE COLLINSON APPEAL [84]
CONCLUSION [104]Introduction
[1] These two appeals were heard together as they arise out of the same criminal offending. In respect of Mr Davis the Crown seeks leave to appeal against a sentence of seven years’ imprisonment imposed upon him by Laurenson J in the High Court at Auckland on 15 October 2004. Mr Davis pleaded guilty to counts of:
(a)having in his possession a Class A controlled drug, namely cocaine, for any of the purposes set out in s 6(1)(c) of the Misuse of Drugs Act 1975 in respect of which the maximum penalty is life imprisonment;
(b)conspiring to export a Class A controlled drug, namely cocaine, from New Zealand in respect of which the maximum penalty is 14 years’ imprisonment.
[2] The Crown seeks leave to appeal on the basis that the Judge’s starting point of ten years was manifestly inadequate, and that a minimum non-parole period should have been imposed.
[3] Mr Collinson appeals against an effective sentence of nine years’ imprisonment imposed upon him by Goddard J in the High Court at Auckland on 30 November 2004 after he entered pleas of guilty to the same two charges. He also had a minimum non-parole period of four and a half years’ imprisonment imposed. In Mr Collinson’s case the sentencing Judge held that the appropriate starting point was 12 years.
[4] This appeal is advanced on the basis that the effective sentence imposed was, in any event, manifestly excessive, that there was an unjustifiable disparity between the sentence imposed on him and that imposed on Mr Davis, and that the imposition of a minimum non-parole period was inappropriate and unjustified.
[5] Although not the subject of appeal, the total picture can best be assessed if regard is had also to the sentencing of Christine Morgan who appeared for sentence on one count of importing cocaine and one count of possession of cocaine for supply. She was found guilty after trial by jury on both charges, each of which carry a maximum penalty of life imprisonment. Ms Morgan was part of the same overall criminal operation.
[6] In Ms Morgan’s case, Venning J took a starting point of 12 years’ imprisonment. After an assessment of various mitigating factors, he imposed an effective sentence of eight and a half years’ imprisonment with no minimum non-parole period.
[7] The simple overview of the three cases indicates the substantial difficulties which can emerge when different Judges are involved in sentencing people (who are effectively co-accused) for offending arising out of the same general circumstances.
The factual situation
[8] Early on the morning of Friday 8 April 2004 Christine Morgan, travelling on a Great Britain passport which had been issued in Johannesburg, South Africa a couple of weeks earlier, arrived in New Zealand on a Lan Chile flight from Brazil. She was selected for a search by New Zealand Customs Officers. In her suitcase were located two large ornamental statues depicting rats which were individually wrapped in bubble paper. Xray checking of the statutes revealed suspicious enclosures in the body cavity of each of the rats. When subsequently examined these were found to contain three tinfoil wrapped packages which contained a quantity of white powder. Upon analysis this powder was found to be the Class A controlled drug cocaine. The total weight of powder was 2.871 kgs. It was 80% pure. Allowing for cutting, at street level this was worth up to $4 million.
[9] Ms Morgan was booked to return to Brazil four weeks later. She told police that she had met a group of Nigerians in Johannesburg who organised and paid for her British passport. She was given tickets to fly from South Africa to Sao Paulo in Brazil on 2 April 2004. She was given US$300 in currency and told to take a number of body lotion products to Brazil which were to be given to a male Nigerian named James.
[10] Ms Morgan told the authorities that, on her arrival in Brazil, she took a taxi to a specified hotel where she met this man James and handed over the body lotion products. Two nights later she was taken to another hotel where she remained for the rest of her time in Brazil. While there she was told she was going to make a trip to Auckland, New Zealand. The Nigerians booked the necessary tickets. The night before she was due to leave, James visited her in her hotel room and gave her US$500 and told her that when she arrived in Auckland she was to catch a taxi to the Auckland City Hotel from where she was to call a telephone number supplied to her and advise of her arrival. She was told that arrangements would then be made for packages which she was to take with her, to be picked up from her by a man named Steve.
[11] In accordance with the arrangement, another Nigerian named Jack came to her hotel in Brazil early on the morning of 6 April 2004. He gave her two packages in white plastic bags. She travelled with them. She accepted that, although not knowing exactly what was in the packages, there was a strong likelihood that they contained cocaine.
[12] After her apprehension, Ms Morgan agreed to assist police and Customs investigators first to identify other persons involved in this syndicate by making phone calls to Brazil from Auckland to indicate there were no problems and secondly to continue with the delivery of drugs to the intended recipient.
[13] In accordance with the arrangement, late on the morning of 8 April Ms Morgan telephoned James in Brazil and gave him her hotel room number (210). She was informed his friend would contact her the following day.
[14] About midday on 9 April, Stephen Murray Collinson arrived in New Zealand on a Qantas flight out of Sydney, Australia. He immediately took a taxi from the airport to the Auckland City Hotel. He checked into a room (307) which had been booked on 2 April for two people.
[15] That evening a passenger by the name of Anthony Edward Davis arrived in New Zealand on a Qantas flight originating out of Sydney. He travelled to the Auckland City Hotel, obtained a key from reception for 307 and went to the room. Mr Collinson was out.
[16] At 10.10pm that evening, Ms Morgan made a further call to James in Brazil to see when his friend was going to pick up the packages and she was told that she would be contacted within the next two hours. At 11.19pm Mr Davis made a call to Ms Morgan and informed her that he would be coming to see her shortly.
[17] A couple of minutes later Mr Davis was seen by police entering Ms Morgan’s hotel room (210) where he asked for the packages. She told him they were under the bathroom basin. He uplifted the packages and left Ms Morgan’s room. He took them to hotel room 307 where he was met shortly after by Mr Collinson.
[18] A couple of hours later the police entered room 307 where Mr Collinson and Mr Davis were found under the covers in separate single beds. The packages which contained the cocaine were under a bed. The statues had been unwrapped and removed from the bubble paper.
[19] Ms Morgan told the police that she needed money and that was the reason she had taken the packages into New Zealand.
[20] Mr Davis said that he knew there was cocaine in the packages and that his task was to export the cocaine out of New Zealand for financial reward and that Mr Collinson had been recruited to take it out and was to be paid A$15,000 for his involvement. Mr Davis said that he had not yet negotiated the financial benefits which were to accrue to him.
[21] Mr Collinson did not offer any explanation.
The Davis sentence
[22] Mr Davis was the first in time to be sentenced. Laurenson J noted the weight and street value of the cocaine.
[23] He sketched the factual background and noted that Mr Davis was a 36 year old Australian, married to a Nigerian with a two year old son living in Sydney. He was employed in the hospitality industry at an income of about $40,000. He was severely depressed. He had a good and supportive family background and no previous convictions. The Judge specifically referred to a letter written to him by Mr Davis and supporting letters from friends and acquaintances.
[24] By reference to s 9 of the Sentencing Act 2002 he noted aggravating and mitigating factors and outlined the purposes and principles of sentencing which were relevant.
[25] The Judge then said at [12]:
The sentence to be imposed in any particular case will ultimately depend on the facts in that particular case. The law has always recognised, however, and the Act now specifically recognises that regard must be paid to consistency. So far as this case is concerned, I have been referred to a number of previous cases, which appear to me to be sound indicators of the general level of sentencing which applies in cases such as this.
[26] He referred to three decisions of this Court:
(a)R v Stanaway [1997] 3 NZLR 129, in which this Court upheld a sentence of ten years imprisonment, following a verdict at trial, in respect of charges of being in possession for supply and conspiracy to supply 68.35 grams of pure heroin.
(b)R v Worthington (CA276/92, 26 November 1992) where again the Court upheld a sentence of ten years’ imprisonment in respect of a charge of being in possession of 105 grams of cocaine for supply. This was also following a verdict of guilty.
(c)R v Prickong [1990] 1 NZLR 5, where in respect of Mr Prickong the Court reduced a sentence of 12 years imprisonment on a charge of conspiring to export 2053 grams of heroin powder, to ten years’ imprisonment. There had been a plea of guilty at a very late stage.
[27] Laurenson J also referred to a decision of Paterson J in R v Wu (HC AK TO02370 29 May 2000). There the prisoner had pleaded guilty to being in possession for supply of 416 grams of cocaine and was sentenced to eight years’ imprisonment after an allowance had been made of one year for a very late plea of guilty.
[28] The Judge considered that all those cases were comparable in that, as with Mr Davis, the offenders had not been the “instigator, mastermind, prime mover or controller near the top level of the drug operation but, nevertheless, [their] involvement, although at a lower level, was vital to the illegal operation”.
[29] Laurenson J noted the potential harm from Class A drugs, not least cocaine, and the fact that Mr Davis’s involvement was “simply greed”.
[30] The Judge then held at [16]:
Having taken these various matters into account, I have concluded that, in your case, taking into account the aggravating factors previously referred to, an appropriate starting point is 10 years imprisonment. Taking into account, however, the mitigating factors of your previous good records, your evident remorse, and the fact that you pleaded guilty at a relatively early stage, I consider that an appropriate net sentence is 7 years imprisonment.
[31] He discussed issues relevant to minimum periods of imprisonment pursuant to s 86 of the Sentencing Act 2002, particularly the decision of this Court in R v Brown [2002] 3 NZLR 670 and concluded that the 28 month minimum period which would apply under s 84 of the Parole Act 2002 was, in all the circumstances, a suitable sentence before parole could be considered.
The Collinson sentencing
[32] The next in time to be sentenced was Mr Collinson. He was sentenced by Goddard J on 30 November 2004. That Judge had drawn to her attention Laurenson J’s sentencing notes in Davis.
[33] She too set out in summary form the factual background before referring to the purposes and principles of sentencing which she considered relevant and then noted at [7]:
The scale of the offending in any such case is of importance. The total weight of the cocaine seized in your case was 2.871 kg and the drug was of high purity, on average approximately 80% purity. The fact that you were unaware of the quantity involved, or that it was of such a significant quantity is largely irrelevant for sentencing purposes. What is important is that you willingly involved yourself in this offending. As the Court of Appeal held in R v Prickong [1990] 1 NZLR 5, a case involving just over 2kg of 75% pure heroin valued at between $8-16m, the dominating features of such cases is the very large amount of the drug and there is no substance in the submission that a knowing participant, whether courier or intermediary, in such a drug conspiracy did not know or could not have known how much of the drug was involved. Mr Prickong’s role was to courier a key and baggage receipt from Thailand to Auckland and hand it to the intended courier of the drug when it was exported out of New Zealand. The Court of Appeal reduced Mr Prickong’s effective sentence from 12 years to 10 years on the basis that he did not have possession of or transport the drug supply at any stage, although he was an important link the chain in that he enabled the intended exporter to take possession of the supply. Also, he was charged only with conspiracy and was entitled to some credit for his guilty plea.
[34] Later she said at [9]:
The main thrust of Mr Bonnar’s plea in mitigation was to ask the Court to accept that the starting point of 10 years adopted by Laurenson J in Mr Davis’ case was appropriate for his offending on the basis of the authorities cited and relied on by Laurenson J. In Mr Davis’ case, the Crown had asked for a 14-16 year starting point because of the more serious nature of Mr Davis’ offending. In your case, the Crown is asking the Court to adopt a 12-13 year starting point and the Solicitor-General has appealed against the end sentence of seven years imposed on Mr Davis. Mr Bonnar submits that the correct approach is for me to achieve parity with Mr Davis’ sentence of seven years and that the appropriate course would then be for the Crown to immediately appeal the sentence imposed on you as well. Mr Bonnar argues that because of the different onus that applies to a Solicitor-General appeal, true parity will never be achieved between you and Mr Davis if I sentence you today without regard to Mr Davis’ sentence. Essentially he is submitting that I must adopt a lower starting point than 10 years imprisonment in your case and impose an effective end sentence of less than seven years in your case, in order to achieve parity with Mr Davis.
[35] Goddard J noted the importance of parity in cases of this sort. She concluded that she should impose what appeared to her the appropriate sentence having regard to sentences imposed by this Court in, amongst others, R v Prickong, R v Stanaway, Lam v R CA282/02 23 October 2002, R v Proctor CA153/96 8 October 1986, and R v Worthington. She reached the conclusion that a 12 year starting point was appropriate, but after allowance for mitigating factors imposed an effective sentence of nine years’ imprisonment with a minimum non parole period of four and a half years.
The Morgan sentencing
[36] Finally Ms Morgan was sentenced in February 2005 following a trial in December 2004. The same background circumstances were noted and the relevant purposes and principles of sentencing.
[37] The Judge noted there were features which distinguished her case from the position of Mr Davis and Mr Collinson and said at [6]:
Whilst they both pleaded guilty and you did not it is accepted by the Crown that not only were you entirely co-operative but also that without your assistance Collinson and Davis would not have been caught. You are entitled to a substantial credit as a consequence.
[38] The Judge also noted that the information available suggested that the financial benefits for the two men were much greater than for her, and that her initial involvement may have been through naivety.
[39] Venning J, who had presided at the trial, was of the view that her involvement in the operation was perhaps marginally, but sufficiently different to be distinguishable, at a lower level to that of the other two.
[40] The Judge concluded that the starting point for the offending had to be 12 years. He directed himself to mitigating factors while noting that personal circumstances can carry little weight in sentencing for drug dealing.
[41] Having regard to her co-operation and other factors which he identified as:
· Your previous good character. You have no previous prior criminal convictions in either New Zealand or South Africa;
· The remorse that you expressed from an early stage; and
· Your relatively limited involvement in the planning of the overall operation;
he imposed a sentence of eight and half years.
[42] He concluded that, in terms of R v Brown a minimum non-parole period was not required.
The Davis appeal
[43] The Solicitor-General’s application for leave is advanced on the sole ground that the Judge’s starting point was wrong. It was noted that although the High Court Judges referred to the same decisions, they drew different conclusions from them, as have counsel before us.
[44] Ms Laracy argued that the most comparable case to the present was Prikong. It, as was the case here, involved a large scale importation into New Zealand for the purposes of export to another country. That conspiracy involved over two kilograms of heroin which was 75% pure with a New Zealand street value of between $8-16 million.
[45] Mr Prikong was charged only with conspiracy to export which has a maximum penalty of 14 years imprisonment. Because he had never had actual possession of the drugs and was only to provide a key and receipt to a co-offender, and after an allowance for his plea of guilty his sentence was reduced to ten years’ imprisonment.
[46] Mr Dillard (who was the co-offender in Prikong) on the other hand had flown into New Zealand to collect the key and receipt from Mr Prikong and had an ongoing role. He was convicted after trial for possession for supply and conspiracy to export and received a sentence of 15 years’ imprisonment.
[47] The Crown submitted that of particular importance was the reasoning of this Court in Prikong when it said:
Some stress was laid by counsel for the appellants on the claim that because of the structure of the suitcase neither of them could have known how much of the drug was being transported. There is no substance in this point. Each man was a knowing participant in what was obviously a sophisticated international drug conspiracy and at best must have been indifferent to the quantity involved. Both thus lent themselves to trafficking in human misery and death on an unknown scale over which they had no control. The assertion of lack of detailed knowledge cannot help them. The Crown does not suggest, however, that either was a principal in the drug ring or chain. The question is what sentences were appropriate for the lesser yet important parts that they respectively played.
[48] Ms Laracy emphasised that, in cases of this sort involving class A drugs, the quantity of drugs and degree of participation were critical factors in determining the appropriate sentence and that there is no mitigation in the fact that the drugs had an ultimate destination beyond New Zealand. She noted that there was a clear indication that in cases where there is the introduction into New Zealand of new class A drugs, whether by importation or manufacture, the culpability involved was greater than in cases only involving supply: R v Arthur (2005) 21 CRNZ 453 (CA).
[49] Of importance in the Crown submissions were the comments of Chambers J in R v Wickremasinghe HC AK T013408 28 March 2003 where he said:
[21] Those in that top level who are involved in the importation of class A controlled drugs can expect sentences in the range of 16 to 18 years. That is clear from cases which I have considered such as R v Curtis [1980] 1 NZLR 406 (CA), R v Stanaway [1997] 3 NZLR 129 (CA), R v Liava’a CA175/98 17 August 1998, and R v Lay HC NAP TO20099 27 September 2002. Those involved right at the top and in very large importations can expect sentences above the 18 years. Indeed, of course, under the Sentencing Act, those whose offences are within the most serious of cases for which the penalty is prescribed, can expect the maximum penalty, namely life imprisonment: see s 8(c).
[22] In this category, the quantity of the drug imported and its value will be of prime importance. That is for two main reasons. First, the masterminds and prime movers will know exactly how large the importation is. Secondly, because of their position, one can assume that they themselves will be rewarded by the fruits of the importation. The greater the quantities imported, the greater the rewards are likely to be for them.
[23] There is a second category of drug importer: the person who is a crucial player in the importation but who is not the instigator, mastermind, prime mover or controller. This category was, I think, well described by Robertson J in his sentencing remarks in R v Lam HC AK T982692 6 July 1999. He described those in this group as being ‘of prime importance but not as part of the planning nor part of the mastering of the activity, but nonetheless [having] an involvement which was of critical importance’: p 4. As Robertson J said, the reality is that, without people willing and able to carry out these lesser roles, the enterprise could not be brought to fruition.
[24] In this category, the quantity of drugs imported, while nonetheless of significance, is not quite as important as in the first category. This is because these people do not necessarily know how much drug they are importing. Nor are they necessarily paid from the fruits of the importation. More likely, they will be paid a fee.
[25] The starting point for people in this category involved in class A importation would appear to be in the range of 12 to 13 years. Of course, these starting points are not fixed and there will be a blurring at the edges. Some people will come between the role of courier/collector and mastermind. The starting point for them will normally fall somewhere in the 13 to 16 year range.
[50] The Crown submitted that this approach (and the levels referred to) have been consistently applied in a variety of High Court decisions in recent times.
[51] Against that background, the Crown submits that Mr Davis had a close connection to the masterminds in this case and was effectively the organiser and overseer in New Zealand of the movement of the drugs through this country.
[52] On that basis, it was submitted by the Crown that a starting point of 14 or 15 years should have been adopted and that the ten year starting point used by Laurenson J was manifestly inadequate.
[53] Mr Kaye properly reminded us of the approach to be applied in respect of a Solicitor-General’s appeal. He referred in particular to comments in this Court of McCarthy P in R v Wihapi [1976] 1 NZLR 422, 424:
Considerations justifying an increase must “speak more powerfully than those which ordinarily might justify a reduction ... The Court is more reluctant to increase than it is to reduce a sentence.
This theme was repeated in R v Lepper and McDonald [1985] BCL 24:
The facts must speak with a particularly clear voice before a sentence will be interfered with as being manifestly inadequate.
[54] First, counsel contended that the evidence did not support the conclusion that Mr Davis was higher up the tree than Mr Collinson. We do not accept that submission. The summary of facts upon which both these men pleaded guilty, showed that Mr Davis was of crucial importance and that the handover from Ms Morgan did not occur until his arrival in New Zealand. Mr Davis himself said, in the videotaped interview with Detective Sergeant Beale on 10 April 2004, that he had recruited Mr Collinson. He said he came to New Zealand because Mr Collinson wanted a companion and indicated that Mr Collinson was to get $15,000 whilst Mr Davis’s own financial arrangements had not been sorted out. He accepted that it was he who had been the connector to others higher up the pyramid.
[55] Laurenson J in his sentencing noted Mr Davis and another man had been recruited in Sydney to travel to Auckland, pick up the drugs, transport them back to Sydney and that they were to be paid $15,000 between them. With respect, the Judge erred in reaching that conclusion. There was no question but that Mr Davis recruited Mr Collinson and that $15,000 was Mr Collinson’s payment but the issue of his own was undecided.
[56] At one point Mr Kaye went as far as suggesting that Mr Collinson was more culpable but realistically did not press that interpretation.
[57] Mr Kaye submitted that there were in the prior authorities (particularly in the High Court) two strands; one which suggested that couriers in large scale drug activities could anticipate starting points between 10 and 11, and another strand which suggested 12 to 14. Mr Kaye stressed that Wickremasinghe has not been treated as setting a universal standard. He referred particularly to the decisions of this Court in R v Wong and Chen CA378/02 and CA379/02 25 March 2003, R v Hui CA192/03 28 August 2003, which he contended indicated that a less severe regime was within the sentencing discretion of individual Judges.
[58] Mr Kaye also emphasised the substantial mitigating circumstances in this case and that Mr Davis was entitled to a significant discount for his early plea of guilty and his previous good character including his lack of any previous convictions.
[59] The crux of the assessment is the starting point of ten years selected by Laurenson J.
[60] Despite Mr Kaye’s submission about competing strands, we are not satisfied that there is ambiguity or uncertainty. A number of the cases to which he referred did not involve class A drugs. Even with couriers, there are different levels of involvement and therefore culpability. It is important that there is consistency of approach but the initial starting point has to be that there is a maximum penalty and a person can properly be sentenced anywhere up to that point.
[61] Decisions have indicated a degree of focusing, but the authorities say nothing more than that people who have a significant and integral part in drug distribution can anticipate starting points in excess of ten years. How much higher will depend on their actual involvement, their knowledge and the scale of the operation.
[62] It is misleading to argue that because some people who have been couriers have been dealt with at a starting point of ten years that must apply if the circumstances of the previous case are not comparable with the situation in which the Court is being required to make an assessment.
[63] It is dangerous, in cases generally and particularly in an area like this, to try to use mathematical analysis to determine a sentence. There has to be a judgment by weighing all the relevant factors. In setting the starting point, the fundamental focus is on the actual offence and the involvement of the particular person in that offending. We use the term ‘starting point’ in the way it was defined by this Court in R v Taueki [2005] 3 NZLR 372 at [8]:
The modern approach to sentencing uses as a reference point a starting point taking into account aggravating and mitigating features of the offending, but excluding mitigating and aggravating features relating to the offender. Put another way, a starting point “is the sentence considered appropriate for the particular offending (the combination of features) for an adult offender after a defended trial” (R v Mako [2000] 2 NZLR 170 at para [34]). When we use the term “starting point” in this judgment, that is what we mean.
[64] Dissection of High Court cases is not a profitable exercise. There are sufficient decisions of this Court indicating clear principle. It is to them that Judges should turn for guidance and influence on the assessment they have to make. Upon that basis, we are satisfied that the correct approach is to consider, first, the class of the drug involved, secondly the scale of the operation, thirdly the actual involvement of the individual in the enterprise including their knowledge of its overall parameters.
[65] Despite all that has been carefully advanced by Mr Kaye, we are satisfied that a starting point of ten years cannot stand scrutiny. It is clearly out of line with the approach that this Court has consistently adopted for this level of involvement in the import and/or export of substantial quantities of class A drugs.
[66] Overall this was a well-planned and carefully orchestrated activity. We do not accept that Mr Davis was only a courier. He was, on his own admission, a recruiter. The other participants did not progress matters until he arrived and the inevitable conclusion is that Mr Davis was the supervisor within New Zealand. He also had contact with those further up the chain.
[67] We are mindful that this is a Solicitor-General’s appeal and that any alteration we make must be influenced accordingly. We are satisfied that a starting point of less than 13 or 14 years could never have been justified. That is not to suggest that Mr Davis was at the top of the pyramid or the mastermind, but he was a very vital component in an international enterprise. It is clearly of importance that New Zealand does not become viewed as a “soft touch” for the transit of illicit drugs or as an ultimate destination for an importer.
[68] As against that, the Court must consider the mitigating circumstances. Laurenson J determined that they justified a reduction of 30%. In our judgment having regard to the timing of the plea of guilty, the fact that there was a powerful case against him, and on the basis that his lack of previous convictions is not mitigation but the absence of aggravation, that was a particularly generous discount. The Crown has not urged us to interfere with that exercise of discretion and therefore that approach should still be reflected.
[69] On balance we have concluded that an operative sentence of less than ten years would fail to reflect the very serious nature of this offending and Mr Davis’s level of involvement in it. That is not to say that a higher sentence would not have survived an appeal challenge, but the proper approach to Solicitor-General appeals necessitates the exercise of caution.
[70] The second aspect of the Solicitor-General’s application for leave was the non-imposition of a minimum non-parole period.
[71] The offending occurred prior to July 2004 so the appropriate test is that enunciated by this Court in Brown.
[72] On this point the Crown notes:
46.Deterrence is the primary justification for imposing [minimum non-parole periods] in cases of serious drug offending. The message that those who lend themselves to introducing or distributing hard drugs will meet with very lengthy terms of imprisonment must be a sufficiently chastening prospect to not only deter New Zealanders from becoming involved, but also to deter foreign nationals from conceiving of New Zealand as a “soft touch” on the drug circuit. The likely punishment, therefore, must serve as an international warning.
47.It is difficult to identify all the factors that are likely to engage an [minimum non-parole period] in the drug context however some of the must be:
47.1Repeated importations, or instances of offending.
47.2Playing a supervising or masterminding role in a significant operation.
47.3Offending involving very large quantities of drugs/street value (which tend to result in final sentences of 8 years or more).
47.4Extensive planning and complex arrangements, suggesting a high level of organised criminality.
47.5Prior convictions for drug offending.
[73] Mr Kaye stressed that the Judge had made a clear decision as to how his discretion should be exercised in the particular circumstances of this case and that it was not for an Appeal Court simply to substitute its view of the nature of that exercise. Counsel suggested that there was no basis for saying that the High Court Judge had exercised the discretion wrongly, or had taken into account irrelevant considerations, or had placed too much weight on irrelevant considerations.
[74] In our view the appropriate response in cases such as this is clearly set out in the decision of this Court in R v Wong and Chen CA279/02 24 March 2003 where it was noted:
[19] We now move to the minimum non-parole period. The first question is whether, as s 86 of the Sentencing Act requires, the Judge could be satisfied that the circumstances of the offence were “sufficiently serious to justify a minimum period of imprisonment that is longer than the period otherwise applicable under s 84(1) of the Parole Act 2002”, namely one-third of the length of the determinate sentence, which in this case is now to be two years. In Brown this Court noted (at para [28]) that the Parole Act had effected a reduction in the time to be served by serious offenders, subject to questions relating to the safety of the community. (In the case of serious drug offenders the minimum term had always been one-third but the parole authorities had had a greater degree of discretion than the Parole Board now does under the Parole Act and it is our understanding that under the former regime it was not the usual practice to release such offenders after one-third of the finite sentence had been served.) We said in Brown that s 86 provided a mechanism “to constrain that outcome where the offending is so serious that release after one-third of the sentence would plainly constitute an insufficient response in the eyes of the community, even though there may be no ongoing safety risk”.
[20] We also indicated in Brown (at para [29]) that subs (3) of s 86, which refers to circumstances taking the offence out of the ordinary range of offending of the particular kind, is not intended as an exhaustive definition of “sufficiently serious” circumstances. Rather it indicates the level of culpability needed for a s 86 order. The central question, we said, must be culpability, which was necessarily increased by, inter alia, serious, actual or intended consequences – a factor which might be important in cases involving major drug dealing.
[21] The present case does involve major dealing in class B drugs; moreover, in a drug which Ms Markham rightly described as pernicious. (There is already underway a move to have Parliament reclassify methamphetamine as a class A drug.) There have of course been much worse instances, such as the level of manufacturing in Wallace. The appellants’ roles as already noted were limited. But by virtue of the quantity and nature of drug which they helped to import, their culpability is such as to take the case out of the ordinary run of class B drug offending and to make it “sufficiently serious” in terms of s 86(2). They participated in activities intended, as they would have known, to release a large quantity of methamphetamine tablets into the New Zealand community and they did so to secure a not insubstantial personal financial advantage. There is nothing in the circumstances of the offending, as contrasted with that of the offenders, which is to be seen as a mitigating factor. Having said that, we should make it clear that we do not regard their offending as qualifying as “sufficiently serious” by more than a relatively narrow margin.
[75] In a helpful analysis of the proper approach to the imposition of a minimum non-parole period under s 86 (in the form relevant to this proceeding) Ms Laracy noted that there was a discretion vested in the Judge, but that, as Brown made clear, the purpose of minimum non-parole periods was to ensure that the Court did not lose sight of aspects of denunciation, deterrence and punishment.
[76] She submits that, in any relevant sentencing exercise, the Court must:
(a) determine on an appropriate lead sentence;
(b)determine whether the circumstances are “sufficiently serious” to require the Court to consider a minimum non-parole period;
(c)if they are, whether the Court should impose a minimum non-parole period; and
(d)if so, how long that period should be.
[77] Counsel’s argument was that, in determining the third issue, the Court could not circumvent the fundamental policy behind the provision of denunciation, deterrence and punishment, as noted in R v Wong and Chen at [74]. Factors such as personal circumstances (which the Courts have made clear can seldom play any significant part in the determination of the lead sentence) cannot have particular influence at this later point.
[78] We respectfully endorse that approach. In the determination of a minimum non-parole period, Laurenson J made no mention of the underlying factors and appears to have placed particular emphasis on personal circumstances. He said:
… given your background, your response to the offending, mainly the remorse shown, your responsibilities and your family responsibilities, your previous good behaviour and, noting particularly, the support that you can expect from your family in the future, I consider that it is not necessary to impose a greater minimum term of imprisonment.
[79] We are of the view that the exercise of discretion misfired in these circumstances as the Judge failed to have regard to the pertinent and essential factors requiring consideration.
[80] The section under which Mr Davis was tried captures, as well as large scale commercial operations like this, a person bringing one tab of LSD into the country in his pocket, or someone handing over some cocaine at a party. We conclude that his level of involvement in this size of operation could not, in all the circumstances, fail to be categorised as “sufficiently serious” to take it outside the normal range. We emphasise that we reject any notion of classes or bands of involvement where, on a pre-determined basis, there will be at least a presumption that they are either in or out. Every case requires its own factual assessment.
[81] We find no basis of reasoning that avoids the conclusion that a minimum non-parole period should be imposed in this case. The need for general deterrence, which is of such importance in this area, satisfies us that 50% is required in this case.
[82] We do not overlook the fact that the sentence on Ms Morgan did not include a minimum non-parole period. We are, however, satisfied that the quality of her involvement was different to Mr Davis’s. Although we consider that a merciful approach was adopted by Venning J, its influence is not such as to deviate us from the clear obligation which exists in respect of Mr Davis.
[83] Accordingly we are satisfied that in allowing the Crown’s appeal and substituting a period of ten years’ imprisonment, this must be subject to a minimum non-parole period of five years.
The Collinson appeal
[84] There are two aspects to this appeal. First, whether a disparity argument could be maintained because of the difference of approach in sentencing between Mr Collinson and Mr Davis, and secondly, the fact that a minimum non-parole period has been imposed upon him but not on either Ms Morgan or Mr Davis.
[85] As Mr Bonnar realistically recognised in his written submissions and as he responsibly accepted before the Court, if we were to conclude that Mr Davis’s sentence was manifestly inadequate, then his position had to be realigned in light of that.
[86] We now have a situation in which this Court, together with Goddard and Venning JJ, has determined that starting points of 12 to 14 years are appropriate. We are of the view that, in terms of R v Lawson [1982] 2 NZLR 219 a situation could not arise of “reasonable minded independent observer, aware of all the circumstances of the offence and the offender, thinking that something had gone wrong with the administration of justice”.
[87] The 12 year starting point is, in our judgment, not merely within a sentencing judge’s discretion but is entirely consistent with patterns that have emerged which give appropriate consideration to the total scale of the operation and the individual’s involvement in it.
[88] The more difficult issue is the question of a minimum non-parole period. We have determined that one should exist in respect of Mr Davis because of our conclusion that he is at a higher level in the syndicate than either Ms Morgan or Mr Collinson.
[89] Without Ms Morgan’s sentence, our initial reaction would have been that in terms of s 86(2) and (3) of the Sentencing Act 2002 (as it existed prior to July 2004) Mr Collinson’s involvement did bring it outside the “ordinary range of offending” of this particular kind.
[90] We reject any suggestion that it is only masterminds, prime-movers or controllers whose conduct can fall into such a category. In syndicates of this type there are many whose participation is an essential part of the execution of the plan. Suggestions have been made in the High Court that couriers are unlikely ever to come within s 86. Such generalisations and pre-classifications cannot be sustained. The section requires a fact-specific assessment having regard to the scale of the operation, the involvement of the particular person and their knowledge of the totality of what is occurring.
[91] What is beyond question is that Mr Collinson was prepared, for $15,000, to travel from Australia to New Zealand, to act as a conduit for illicit drugs. Bearing in mind his fee, it is an inevitable conclusion that he realised it was large scale and there is nothing which suggests that he did not know that it was cocaine which was involved.
[92] The problem arises in the area of disparity which is a factor we cannot ignore. Minimum non-parole periods are not necessarily the periods that people will serve in prison. However, it is beyond argument that as between two people involved in the same criminal enterprise the time at which they will first have the ability to seek release from imprisonment is a matter that will loom large in their thinking.
[93] In the cases of Mr Collinson and Ms Morgan, the Judges started from the same point. Mr Collinson received a reduction of three years because of his guilty plea and “personal attributes as attested to in many letters and testimonials before the Court” together with the fact that he was “a first offender”.
[94] The Judge went on and said:
The Crown seeks the imposition of a minimum term of imprisonment and in my view the provisions of s 86(2) require this. I therefore impose a minimum term of imprisonment of 50%, that is of four and a half years imprisonment.
[95] Whilst the Judge had undertaken a detailed and careful analysis of the factors which led her to decide on the lead sentence, there is no articulated reasoning as to what about the seriousness of this offence that led her to the conclusion that it was outside the ordinary range of offending of this particular kind. A lengthy and expansive dissertation is not required. However, it must be apparent which factors have led to the conclusion.
[96] The consequence of the Judge’s decision was that Mr Collinson cannot apply for parole for four and a half years. In respect of Ms Morgan, without the benefit of a plea of guilty, her sentence was reduced to eight and a half years. We immediately acknowledge the strength of the argument for the reduction because of co-operation and other factors which were identified at [41]:
[97] The Crown did not seek leave appeal her sentence. We heard Ms Laracy comment about the failure to do so, but it is a reality which is there and which we have to take into account. The effect of that is that, after two years and ten months, Ms Morgan can apply for early release. The difference between her and Mr Collinson is one year and ten months. Both are non-New Zealand nationals who will almost inevitably be deported on release from prison so there is nothing different about that circumstance.
[98] In terms of culpability, we find it impossible to conclude that the culpability of Ms Morgan was not as great, if not greater, than that of Mr Collinson. Despite the sympathetic approach of Venning J, this woman was prepared to leave South Africa on travel documents acquired by others and go to South America for monetary gain, and later actually carry into New Zealand almost 3kgs of a class A drug.
[99] That is to be compared with Mr Collinson who demonstrated a clear willingness to participate for $15,000 in a scheme to export that material out, but did not actually get to do it. His joint possession with Mr Davis was for a short period during which his only reaction was surprise at the size of the ornaments, if not the contents.
[100] The reasonable properly informed observer will understand the difference between the allowance for co-operation and the allowance for a plea of guilty, but we have concluded that it is not possible to articulate good reason why the period before which Mr Collinson can apply for release should be twenty months longer than the thirty-four months after which Ms Morgan can apply. An increase of nearly 60% in that critical figure does not have a justification in their level of participation and culpability.
[101] Accordingly, if we come to undertake the s 86(2) exercise as against the lead sentence of 12 years for Mr Collinson, accepting an effective sentence having allowed for mitigation of nine years, we find that because of the scale of this operation and the pivotal role which Mr Collinson was to play in moving drugs between countries, that the offending was outside the ordinary range of offending of this particular kind.
[102] However, we conclude that, in the exercise of discretion, we should not impose such a minimum non-parole period because of the disparity issue which will arise as between Mr Collinson and Ms Morgan. For that reason alone, we conclude that the appeal against sentence should be allowed and the minimum non-parole period quashed.
[103] We have not overlooked a comparison between Mr Collinson and Mr Davis, but we are firmly of the view that the quality of their involvement was so different as to make the distinction which we have drawn justifiable in all the circumstances.
Conclusion
[104] The Solicitor-General’s application for leave to appeal in respect of the sentence of Mr Davis is granted. The sentence of seven years’ imprisonment is quashed and in its place Mr Davis is sentenced to concurrent terms of ten years’ imprisonment with a minimum non-parole period of five years on each count.
[105] Mr Collinson’s appeal against sentence is allowed only in respect of the minimum non-parole period which is quashed.
Solicitors:
Crown Law Office, Wellington
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