R v Kavaleros HC Auckland CRI-2009-404-000384

[2011] NZHC 1599

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-404-000384

THE QUEEN

v

CONSTANTINE KAVALEROS

Appearances: A M Wharepouri and B Hawes for Crown

M M Dixon for Prisoner (Kavaleros) Judgment:  12 August 2011 at 9:00 AM

SENTENCING NOTES OF COURTNEY J

Solicitors:           Meredith Connell, P O Box 2213, Auckland

Fax: [phone] – M Wharepouri

Counsel:             M M Dixon, P O Box 210 Shortland Street, Auckland 1140

Fax: [phone]

R V KAVALEROS HC AK CRI-2009-404-000384 12 August 2011

[1]      Constantine Kavaleros, you appear for sentence today having been found guilty on three counts of importing and four counts of supplying the Class B controlled drug MDMA.   Those charges carry a maximum penalty of 14  years imprisonment.

[2]     The offending in which you were involved was part of a sophisticated commercial operation involving the importation of large quantities of Ecstasy pills hidden in gift baskets sent from the UK.   A sustained and comprehensive police investigation resulted in the arrest and conviction of several people involved in the importation and distribution of these drugs.   Those convicted, including yourself, played various different roles in the importing and distributing process.

[3]      The evidence showed that the Ecstasy pills, hidden in Harrods gift baskets, were sent to different residential addresses in Auckland and Wellington.   Those addresses  had  been  set  up  by other members  of the  drug ring through  a fairly elaborate process by which a tenancy agreement was entered into, steps taken to ensure that the address appeared lived in and rent paid. Arrangements were made for a member of the ring to attend the address when it was known that a hamper was to be delivered and to stay at the address only so long as it was needed to take delivery. Sometimes that person unpacked the basket and extracted the drugs.   Sometimes another person did that.  The gift hamper was usually left behind.  The drugs were handed over to yet another member of the gang who then sold them to others for distribution at lower levels.

[4]      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 and the money lost from the local economy through lost productivity and the huge amounts of cash drained out for the benefit of overseas drug dealers.   Most people who appear for sentencing on importing and supply charges become involved in drugs for financial gain.  They cannot expect sympathy from this Court.  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 culpability,

the seriousness of the type of offending and the need for consistency in sentencing levels.

[5]      I am assisted in this case by the Court of Appeal’s decision in R v Wallace,[1] which you have heard talked about today.   The Court of Appeal recognised that where a drug ring includes those who both import and distribute, it is inevitable that there will be some who will be regarded as prime movers and others who assist or play lesser roles as you have done.  The Court of Appeal gave an indication as to starting points to be taken in sentencing for Class B drug offending by identifying three broad categories for assessing the seriousness of the offending.   The most serious category is commercial activity on a major scale.   These kinds of cases attract starting points of between eight and 14 years.   The second category is the commercial   manufacture   or   importation   on   a   substantial   scale   reflecting sophistication  and  organisation  with  operations extending over a period  of time though not involving massive quantities of drugs or prolonged dealing.   These offences attract starting points between five and eight years.   Finally, category 3 represents commercial operations but smaller and attracting starting points of up to five years.

[1] [1999] 3 NZLR 159.

[6]      It was clear from the evidence that the operation in which you were involved had been under way for quite some time by the t ime these offences occurred.  It 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.  For example, the evidence regarding the offending of Mr Keown, who was dealing in Christchurch, showed that he had purchased 10,000 tablets at a cost of $210,000.  Those pills had a street value of between $600,000 and

$800,000.  Mr Voerman, a lower distributor, gave evidence of selling thousands of tablets at $35 – $40 each.

[7]      The level of commerciality of this operation is most readily assessed by looking at the street value of each pill against the amount of money that the police located from the proceeds of sale.  There was evidence at trial of members of the

ring flying into New Zealand on what was referred to as a “money run”.  They came

solely to pick up cash from the proceeds of drugs imported earlier.  At an early stage in the investigation police observed a member of the ring leaving New Zealand with a suitcase containing $400,000 in US currency.   He was not stopped because the police  were  in  the  process  of  gathering  evidence  against  other  offenders  here. During  2008  police  regularly  inspected  the  bank  vault  controlled  by  Matthew Frewer, who has already been sentenced for his offending, and was described by his sentencing Judge as the principal wholesaler in New Zealand.  The evidence I heard suggested that he had a high degree of responsibility for  the operation in New Zealand.     In  April  2008  the  police  found  US$240,000  and  NZ$120,500  in Mr Frewer’s bank vault.  In May, the vault contained US$60,000 and NZ$335,500. In June there was approximately NZ$200,000, and in July just over NZ$150,000.

[8]      Although there is no evidence of exactly how much in the way of drugs were imported on any particular occasion, I conclude from these facts that the money being made is itself evidence of imports of very large quantities.  It is an operation that, for those at the higher levels, would have been regarded  as falling within category 1 of Wallace but I need to assess your culpability on the basis of the part that you played which I recognise represents a small part of the overall operation.

[9]      You were convicted on three charges of importing and four of selling as I have already noted.  Your role was to make yourself available at the addresses that someone else had organised and at a pre-arranged time take delivery of the baskets. On one occasion you paid Customs duty in respect of an importation.  On another you delivered a basket directly to Mr Frewer.

[10]     It is plain from the jury’s verdict that you knew that the hampers you were taking delivery of contained drugs.   At some point in the investigation when you spoke to the police you did suggest that you did not know for sure but were suspicious.  You accept now, however, that you did know and it is clear that the jury was satisfied that you knew.

[11]     You became involved in this operation at the instigation of a friend whom you name as your co-offender John Apostolakis.  For present purposes the identity of the person that got  you  into this  does not matter and  I do not place particular

emphasis on it because Mr Apostolakis is to be sentenced and not on the basis that he had any involvement with you.  The important thing is that you did become involved and  you  must  have known within  a short time that  what  you  had  got  yourself involved with was drugs and you did so for financial gain, although that turned out to be much less than you thought it would be.

[12]     The  role  of  a  person  who  undertakes  the  kind  of  tasks  that  you  did  is described in drug offending parlance as a catcher.  A catcher performs an important role in an operation like this.  Although not a prime mover, he sits above a mere courier in the hierarchy and so it is in this case.  You were brought in on each of these occasions to perform a limited and very specific but very important role.  In a sense it was a high-risk role because you were the interface between the innocent parties and the guilty parties.  You put yourself out in the public arena while others stayed in the background.  In terms of the supply charges I accept that they did not involve direct selling but only the handing over of the drugs and the fact that you knew drugs would inevitably be sold following importation.

[13]     Once again, the amount of Ecstasy is unknown.  There can, however, be no doubt that this was a significant commercial operation.   I have regard to cases involving similar offending[2]  when I am attempting to fix an appropriate starting point.  Some of the cases your counsel referred me to involved the importation of methamphetamine but we are dealing with a Class B drug here which does not attract such high starting points.  Your counsel did, however, refer me to the decision

in R v Mitchell which involved Class B drug offending and is of assistance.  In that case the Judge took a starting point of five years in respect of two instances of importation for the catcher involved.

[2] R v Ellis HC Wellington CRI-2007-085-6245, 30 October 2009; R v Nguyen [2009] NZCA 239.

[14]     In my view your sustained involvement through four importations brings your offending well into category 2 of Wallace.   I consider, having regard to the sentence imposed on the other members of this group who have already been sentenced and the approach taken in Mitchell that a starting point of six years is the appropriate one but I must uplift that by six months to reflect the totality of the

offending on the supply charges.  I therefore take a starting point of six-and-a-half

years for the importing charges.  There are no aggravating features that the Crown asserts would result in a further increase.

[15]     Turning to your personal circumstances, however, I do not see any reason that I could reduce that either.   You are 41 years old.   You are from a close and well respected family in the Greek community in Wellington.   You have a son from a previous relationship and are currently in another relationship and stepfather in that relationship to a six-year-old boy.  Your partner, who has provided a letter for me, speaks glowingly of your kind and humble character.  It is clear that you are highly regarded by your friends and have many positive attributes.  Although you became involved for financial reasons I accept that you are genuinely remorseful, now realising the tremendous harm that drugs do in our community.  You have only one minor previous conviction.  That would not justify any increase but nor are you able to come to this Court as a first offender.   So regrettably, I see nothing in your personal circumstances to justify a reduction from the starting point.   I therefore impose a final sentence of six-and-a-half years on each of the importing charges, four-and-a-half  years on each of the supply charges, the sentences to be served

concurrently.

P Courtney J