R v Karpavicius

[2014] NZHC 2005

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-004-016838 [2014] NZHC 2005

THE QUEEN

v

ROKAS KARPAVICIUS

Hearing:	22 August 2014
Appearances:	RMA McCoubrey for the Crown G J Newell & Y Y Wang for the Prisoner
Sentence:	22 August 2014

SENTENCING NOTES OF ELLIS J

Counsel/Solicitors:

RMA McCoubrey, Meredith Connell, Auckland

G J Newell, Barrister, Auckland

Y Y Wang, Barrister, Auckland

R v KARPAVICIUS [2014] NZHC 2005 [22 August 2014]

[1]      Mr Karpavicius, you appear for sentence today having been found guilty by a jury following your retrial on two counts of importing a Class B drug, MDMA.  The maximum penalty on each count is 14 years imprisonment.

[2]      It is important to note at the outset that you are already serving a sentence of six years three months imprisonment following your conviction last year on three charges of money laundering and one charge of importing a Class A controlled drug. The jury that found you guilty of those offences could not agree on their verdicts in relation to the two charges on which I must sentence you today.  The relationship between the sentences imposed on  you  in November by Justice  Lang and  your sentence today is of some importance and I will return to that later.

[3]      It is also of some relevance that the first jury acquitted you in relation to several  other  drug  related  charges,  including  two  other  counts  of  Class  B importation.

The facts

[4]      The wider background  to the matter  was  set out by Justice  Lang in  his sentencing notes last year and I do not propose to go into any great detail this morning.

[5]      In short, however, in February 2008 the New Zealand Police became aware from their Australian counterparts that 28 kilograms of amphetamine concealed in a granite sculpture had been imported into Australia on 18 January 2008.   Inquiries made by the Australian Police in the country of origin, Lithuania, revealed that a similar consignment  had  been  sent  to  New  Zealand in  December 2007.    Later, information was received in relation to three further similar importations into New Zealand from Lithuania, on 13 March 2006, 9 December 2006 and June 2007.  It is the two later of these four importations – the ones in June and December 2007 - that I am concerned with today.

[6]      The police operation revealed that you were part of a sophisticated  drug operation which involved first, the importation of drugs into New Zealand, their sale here and then the laundering of the proceeds into foreign currencies for transmission

overseas.   In this endeavour you were working closely with Ronald Brown.   Mr Brown pleaded guilty in October 2010 to a range of charges, including charges relating to all four importations and the money laundering charges.  It is relevant that he was eventually sentenced to 11 years imprisonment after the Judge had taken a starting point of 14 years and giving him the usual discount for his guilty plea.

[7]      The money laundering operation commenced in September 2007 in so far as we know.  There can in my view be little doubt that the money so laundered, some

$2,266,000 represented the proceeds of the sale of the drugs that you arranged to be imported.  I note that that total does not include cash of approximately $500,000 that was found by Police in a safe deposit box and in the possession of one of your associates in August 2008.

[8]      While I accept that some of those proceeds were likely to have been derived from not just the two earlier importations presently at issue but the earlier importations for which you have been found not guilty.  The reality remains that this was a large scale operation.  The quantity of drugs found by the Australian Police in the single, 2008, importation confirms the already compelling inference that can be drawn from the amount of money laundered by you, namely that the quantity of drugs imported in June and December 2007 was unquestionably very significant.

Approach to sentencing

[9]      In terms of my approach to your sentencing today, the fact that you have already  been  sentenced  for  other  offences  arising  from  the  activity  I  have  just outlined makes the sentencing exercise today a slightly unusual one.   But what is necessary is for me to impose a sentence on you that will, when taken together with your earlier sentence reflect the totality of your offending and will also recognise the nine months that you have already served.  Although it is not my function in sentencing you to take into account the time that you spent on remand before your trial, I nonetheless bear in mind the provisions of the Parole Act that relate to how that time will be recognised when calculating your release date.

Starting point

[10]     In  assessing  your  culpability  and  therefore  the  starting  point  for  your sentence, I need to have regard to several factors.  The first of these is your role in the importation.  Like Justice Lang, having listened to the intercepted conversations during the trial, I am left in no doubt that you were the guiding force and mastermind behind the whole operation.  It is clear to me as it was to Justice Lang that although Mr Brown represented the New Zealand end, he effectively followed your orders. You were the person who arranged for the drugs to come to New Zealand, and I have no doubt that you had a beneficial interest in the money going back, the proceeds of sale.  As I think Mr McCoubrey said to the jury, they were your drugs and it was your money.  So I do not accept Mr Newell’s valiant submission that the primacy of your role is somehow more limited than that.   I regard you as the person who received the principal benefit of the importation.

[11]     I also need to bear in mind that this was drug offending of a very serious kind.   I have already said that although it cannot be ascertained precisely what quantity of drugs you imported, the information received from the Australian Police together with the amount of money laundered satisfies me that very considerable quantities of valuable drugs must have been sent to New Zealand by you.   The damage you have done to the citizens of this country is immeasurable.

[12]     Thirdly, I take into account that the importation was part of a sophisticated operation.   It encompassed not only the secreting, importing and sale of large quantities of drugs but a money laundering scheme involving, a number of human couriers as well as the setting up of other European bank accounts into which funds were deposited from New Zealand.

[13]     All of these factors inevitably place your offending, in my view, towards the top end  in  terms  of setting the starting  point  to  be applied  in  relation  to  your sentence.  I note as well that the Court of Appeal has said that a sentencing court is not constrained by the maximum sentence of 14 years imprisonment where there is

more than one count of this kind.1

1      R v Xie [2007] 2 NZLR 240 (CA).

[14]     That said, I acknowledge that the starting point adopted by Priestley J in his sentence indication was 14 years imprisonment.  That is of course the same as the starting point adopted by Woolford J when sentencing Mr Brown.  But it might be argued that 14 years is slightly generous to you given the view that both Lang J and I have formed about the respective roles played by you and Mr Brown.  On the other hand,  both  counsel  today  rightly  recognise  that  Priestley J’s  starting  point  was premised on a totality of offending that was not completely borne out by the verdicts, by which I mean you have since been acquitted of some of the charges that the Judge took into account on that occasion.

[15]     In the end I consider that 12 years would be the appropriate starting point in your  case.    As  I  indicated  earlier,  that  starting  point  is  intended  to  reflect  the particular matters I have just mentioned and also the totality of your offending, including the offending to which Lang J’s sentence relates.

Personal factors

[16]     In terms of matters relating to you personally that might affect that starting point there is principally the fact that you are being incarcerated far away from your family who I understand now live in England.  Lang J was prepared to give you a small discount to reflect the particular hardship involved in that and Mr McCoubrey accepted that to a limited extent it was appropriate to take a similar approach today.

[17]     Mr Newell also emphasised in his submissions today your relatively young age, the focus and determination you have shown during your time in prison and the hope that you may be able to rebuild your life on your return to England and to your family.   I have also read just now what you have written to me today about those matters.  While I commend you and your approach and I share the hope that you will manage to rebuild your life I do not consider that those matters warrant a further discrete discount.

End point

[18]     So where we get to is if I was sentencing you for all of your offending today I

would impose a sentence of 11 years and 3 months imprisonment.  That end sentence

would reflect a starting point (intended, as I said, to reflect totality) of 12 years with what I consider to be a generous discount of nine months for the fact that you are so far away from home.

[19]     Although Mr McCoubrey initially submitted that this sentence should be imposed concurrently with your existing sentence I am concerned that complications may arise from that approach.   After further discussion with counsel and with particular assistance from Mr Newell I propose instead to impose a sentence of five years imprisonment which will be cumulative on (additional to) the sentence of six years and three months that you are already serving.   In that way, account will automatically be taken of the time you have already served, and the provisions relating to the calculation of your release date are easily applied.  Just to be clear, however, this sentence is intended to equate to a sentence of 11 years and 3 months

for all your offending which, in my view, would have been appropriate.2

MPI

[20]   The Crown has also asked that I impose a further minimum term of imprisonment, as Lang J did when he sentenced you last November.  If I do not do so, and taking into account the three  year MPI already imposed,  you would be required to serve four years and eight months before you are eligible for release.   I have formed the view that in all the circumstances of your case imprisonment for a total minimum of five years is required adequately to addresses the very particular need in cases such as yours for deterrence, denunciation and accountability.   In setting that at less than 50 per cent, which is what the Crown was seeking, I have taken into account what Mr Newell submitted this morning about the deterrence signals that were sent by the lengthy extradition process that you went through.  So there will therefore be an MPI of two years in relation to the sentence that I am imposing today, but the total of course is five years.

Sentence

[21]     So, Mr Karpavicius, stand now please.

2      In terms of the relevant provisions of the Parole Act the single notional sentence will be 11 years and 3 months imprisonment.

[22]     On each of the two charges of importing Class B drugs you are sentenced to five years imprisonment.  Those two sentences are to be concurrent with each other but cumulative on the sentence you are already serving. There will be an MPI of two years.

[23]     Please stand down.

Rebecca Ellis J