R v King
[2018] NZHC 2540
•26 September 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2016-092-5823 [2018] NZHC 2540
THE QUEEN
v
DAVID KING
Hearing: 26 September 2018 Appearances:
D Stevens for Crown
J Hudson & S Tait for DefendantJudgment:
26 September 2018
SENTENCING NOTES OF VAN BOHEMEN J
Solicitors/Counsel:
Crown Solicitor, Manukau
S Hudson, Auckland
J Hudson, Auckland
R v KING [2018] NZHC 2540 [26 September 2018]
[1] David King, you appear for sentence having been found guilty after trial by jury of one charge of importing a Class A drug, methamphetamine.1 The maximum sentence for this offence is life imprisonment.2
Facts of the offending
[2] You live in Whangarei with your wife. In 2001, you suffered a stroke which left you significantly physically disabled, with a paralysis over the left side of your body and almost a total loss of the use of your left arm. Your health issues mean you spend most of your time at home, and a lot of that time is on your computer, which is a central part of this offending.
[3] In December 2015, you received an email from a person who called himself Reverend van Cabin. In this email, you were told that someone with the same name as you had been left a substantial inheritance and that if you travelled to South Africa and signed some documentation to facilitate the release of the inheritance, you would receive half of the funds, being $15 million.
[4] You knew this was an inheritance scam and you initially thought it might also have been directed at scamming you. However, when the international flight tickets sent by the Reverend were confirmed as authentic by the airline, you decided to travel to South Africa to participate in the claim to this inheritance. To that extent, you elected to participate in what you understood to be a fraudulent enterprise.
[5] You departed Auckland for Johannesburg via Sydney on 28 April 2016.
[6] It is not clear what occurred in the three weeks you were in South Africa. Your evidence was that while you were in Johannesburg you were in the care of a “Ms Elizabeth”, an associate of the Reverend. You say she provided you with accommodation and transport and took you on excursions while you waited for the Reverend to appear – which he never did.
1 Misuse of Drugs Act 1975, s 6(1)(a).
2 Misuse of Drugs Act, s 6(2)(a).
[7] On one excursion, Ms Elizabeth took you shopping, insisting that you buy clothes for yourselves and gifts to give to others, including the Reverend who, you had by then been told, would meet you on your return to New Zealand. Ms Elizabeth also bought you a suitcase with four wheels which she said would be easier for you to use than your old two-wheel bag because of your mobility difficulties. She packed the new clothes and gifts into the new bag she brought to you. She took away your old bag.
[8] On 22 May 2016, you arrived back in Auckland on an inbound Singapore Airlines flight from Johannesburg via Singapore. Your bag was searched by Customs. They found 1960 grams of methamphetamine secreted within a hidden compartment which could only be accessed by cutting the bag open. Subsequent testing by ESR showed this to have a purity of 46 per cent.
[9] You gave differing accounts to Customs officials. You first said that you knew the contents of your luggage and that you had packed your bag yourself. After the bag had been searched and the methamphetamine discovered, you said that Ms Elizabeth had packed the bag for you. To that extent at least, you had been shown to be untruthful.
[10] One of a number of unusual features of the case was that there were telephone intercepts of conversations in a Nigerian dialect between people in Australia and people in Africa, apparently discussing setting you up to bring the methamphetamine into New Zealand. Those intercepts suggested strongly that you had no involvement in setting up the importation, had no direct knowledge of what had been planned and may have been coached to give your initial explanation to Customs for reasons you may or may not have appreciated.
[11] As I said, the Reverend never showed – not in South Africa nor in New Zealand. You had been conned. Whether or not you had actual knowledge of the methamphetamine in your bag, the jury decided you were at least reckless as to the possibility that your bag contained illegal drugs and found you guilty of importing methamphetamine into New Zealand.
Personal circumstances: pre-sentence report and psychiatric assessment
[12] Mr King, your personal circumstances are central to understanding how your offending came about and to assessing your culpability for what would ordinarily be considered very serious offending. At the suggestion of the Crown, when you were convicted the Court requested a report under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 to assist in determining the appropriate sentence. The report prepared by Consultant Psychiatrist, Dr Kyros Karayannis, is illuminating and helpful.
[13] As you explained to Dr Karayannis, you identify as a New Zealander of Maori heritage and Ngapuhi iwi. You grew up in Northland as part of a large family. After school, you were employed in retail and as a sales representative. Until your stroke, you had never been unemployed for a significant period of time and described yourself as a ‘workaholic’.
[14] In 2001, you suffered the stroke which had far-reaching consequences. Your mobility was reduced. Because you were left-handed, you had to learn to write with your right hand, and you needed rehabilitation to be able to walk again. You could no longer work. You went on, and remain on, an invalid’s benefit.
[15] Most significantly in the context of this case, your behaviour changed considerably as a result of your stroke. Your short-term memory became poor and you sometimes had speech or word-finding difficulties. You lacked concentration, could get irritable, and exhibited poor judgment.
[16] Cognitive tests performed by Dr Karayiannis established that you have significant brain damage, demonstrating a pattern of impairment of executive intellectual functioning characterised by defects in information processing in the frontal lobe of the brain. Further tests confirmed that you have impaired frontal lobe function, which is concerned with aspects of reasoning such as recall and retention of memory, changing cognitive themes, abstract thinking and making adaptive judgments.
[17] Dr Karayiannis’s conclusion is that you suffer from a moderately severe neurocognitive disorder which causes you significant physical and cognitive impairment. Your impaired frontal lobe function impedes your ability to have ‘theory of mind’ – the ability to attribute mental states to yourself and to others, and to understand that others have beliefs, intentions, desires and perspectives that are different from your own. Significantly, naïve innocence is a prominent characteristic of your cognitive functioning. I consider that naïveté, which was apparent at your trial, to have been a significant factor in your offending.
[18] This history, which was not before the Court at your trial, provides some explanation of your record of falling for fraudsters and scams, sometimes apparently knowingly. In your evidence at trial, which was not disputed by the Crown, you explained how on at least two previous occasions you lost significant sums of money to email scams asking for an up-front payment for which you would receive a substantial sum in return.
[19] Dr Karayiannis is of the opinion that your neurocognitive mental disorder makes you very vulnerable, contributes significantly to your behaviour and may not be amenable to psychiatric treatment. However, your needs are appropriately met by your present social arrangements, particularly by your wife on whom you depend for your daily living arrangements. For this reason, Dr Karayiannis considers that, from a clinical perspective, your welfare and safety and that of others would not be improved if you were subject to the Mental Health (Compulsory Assessment and Treatment) Act 1992.
[20] All of the above considerations are relevant and important to deciding your sentence.
Purposes and principles of sentencing
[21] I consider that the principal purposes of sentencing you are to promote in you a sense of responsibility for harm done to the community, to denounce the offending and to assist with your rehabilitation and reintegration. While deterrence is usually important in drug offending, in your circumstances deterrence is of limited relevance.
[22] I consider the relevant sentencing principles in your case are to take into account the gravity of the offending, including your degree of culpability, the seriousness of this offending compared to others, consistency with other sentences for this type of offending, the need to impose the least restrictive outcome appropriate in the circumstances, to take into account your particular circumstances which might mean a sentence that would be appropriate to others would be disproportionately severe in your case, and to take into account your circumstances and background in imposing a sentence with a partially or wholly rehabilitative purpose.
Factors bearing on the starting point
[23] In sentencing you, I must first adopt a starting point based on the seriousness of your offending and your level of culpability. I can then make adjustments based on your personal circumstances.
[24] The aggravating factor of your offending is that it involved a substantial amount of methamphetamine which was clearly intended to be released into the New Zealand community by those who had set up the importation. As already noted, the methamphetamine had a purity of approximately 46 per cent.
[25] The mitigating factors of the offending are your limited role in the offending, your state of mind, and your limited intellectual capacity and understanding. As discussed with counsel and based on the decision of the Court of Appeal in Shailer v R, I consider your mental impairment to be relevant both to setting the starting point for the sentence for the offending and as a mitigating personal circumstance to you as the offender.3
[26] The importation of 1960 grams of methamphetamine brings your case within band four in the guideline judgment of R v Fatu which indicates a starting point of between 12 years imprisonment and life imprisonment for quantities over 500 grams.4
[27] However, the Court of Appeal in Fatu set the sentencing bands by reference to the weight of substance in which the purity is of the order of, or exceeds, 60 per cent,
3 Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [45] and at [48].
4 R v Fatu [2006] 2 NZLR 72 (CA) at [36].
explicitly stating that “where the purity levels are less than what would be expected of
‘P’, the sentencing response can be less stern”.5 Where, as in your case, the purity is materially below 60 per cent, the approach on sentencing is not to discount the quantity, but to take into account the relatively lower level of purity as a factor influencing a reduction from the starting point that might otherwise apply.6
[28] While the Court in Fatu emphasised that the bands are applicable to all who import methamphetamine, including those whose roles are as “mules”,7 the Court indicated that in certain circumstances the bands ought not to be applied inflexibly.8
Quantity “is not the only consideration that is material to culpability” and the gradation of sentencing response is only “broadly referable to quantity”.9 In referring to cases involving importation and supply, the Court of Appeal noted that, in the absence of commerciality and aggravating features, a sentencing Judge may sentence beneath the postulated bands.10
[29] This year, the Court of Appeal in R v Agu reiterated that the fundamental task “in selecting a starting point is to identify the criminality involved in the offending, the offender’s culpability for that offending, and also to take into account the purposes and principles of sentencing.”11
[30] I also have the benefit of Palmer J's recent decision in R v Wellington in which
His Honour analysed the history of Fatu and the basis on which the quantities used to
5 At [30]
6 R v Feldbrugge HC Neoslon. CRI-2007-042-3707, 16 December 2008 at [28]-[29]; R v Faifua
CA287/05, 27 March 2006 at [31]. Where the purity is substantially less than 60 per cent a different approach may be required, see Sarah v R [2013] NZCA 446 at [8] and fn 2.
7 R v Fatu [2006] 2 NZLR 72 (CA) at [36].
8 At [31] – [32]; see also the reference to “all other things being equal” at [22]. Flexibility in particularly unusual circumstances has consistently been emphasised in the Court of Appeal guideline judgments: see for instance, Taueki [2005] 3 NZLR 372 (CA) at [42] “the suggested
bands and starting points should be used flexibly, and where any particular feature or combination
of features has some unusual character, the starting point should be adjusted to reflect that.”; R v Mako [2000] 2 NZLR 170 (CA) at [60]: “The indicated starting points should be used flexibly. Where any particular feature or combination of features has some unusual character they should be adjusted to reflect that. It is for the sentencer to assess the seriousness of the offending and then to select a starting point.” (emphasis added).
9 R v Fatu [2006] 2 NZLR 72 (CA) at [9] and [33].
10 At [32]. I note that while the two cross references in [32] are to paragraph [34] which involves the supply of methamphetamine the Court of Appeal clearly opened paragraph [32] with “in cases
involving importation and supply”.
11 R v Agu [2018] NZCA 147 at [13].
set the bands had been selected. Palmer J considered that the history of how those quantities and bands had been selected in 2005 and, in the light of more recent experience, said this raised a question about whether a starting point should be determined primarily on the basis as the same quantities as in 2005.12 I also endorse Palmer J’s conclusion that the bands in Fatu are not meant to be applied mechanistically or rigidly, but with regard to culpability as informed not just by quantity but also by the role of the offender and all relevant aggravating and mitigating factors.13
[31] Mr King, your situation has some parallels with that in R v Soles where a man even older than you imported a significantly larger quantity of methamphetamine in the context of another Nigerian scam and in circumstances where he was held to have been wilfully blind to the possibility he was importing methamphetamine. In that case, the Court set a starting point of 10 years’ imprisonment.14 That case was decided before the Supreme Court decided in Cameron v R that recklessness was sufficient to establish intent with respect to serious drug offending.
[32] Your trial proceeded on the basis that your offending was founded on the lesser mens rea standard of recklessness following Cameron.15 That is, while the Crown advanced its case on the basis that you may have imported drugs into New Zealand deliberately and with knowledge, much of the argument advanced by the Crown was that you “were at least reckless” as to whether the suitcase contained drugs. The Crown accepts that you ought to be sentenced on the basis of recklessness. I consider that to be the correct approach, not least because, apart from the presence of methamphetamine in your bag, secreted in a hidden and non-obvious compartment, there was no direct evidence before the Court that you had actual knowledge. Moreover, the Nigerian intercepts suggested there was no such actual knowledge.
[33] As I have already noted, the Court of Appeal in Shailer v R held that a mental health disorder may be taken into account in the sentencing process at two points. First, and in accordance with s 8(a) of the Sentencing Act 2002, where a mental
12 R v Wellington [2018] NZHC 2196 at [16].
13 R v Wellington [2018] NZHC 2196 at [21].
14 R v Soles [2014] NZHC 2665.
15 Cameron v R [2017] NZSC 89, [2018] 1 NZLR 161.
disorder is causative or directly implicated in the offending, that impairment is relevant to assessing culpability and thus the starting point of a sentencing exercise. Secondly, the disorder may be taken into account as a mitigating circumstance relevant to the offender as distinct from the offending.16 The Court also held that such a disorder can also be material to the form of sentence imposed and to general and specific deterrence, diminishing the extent of the sentencing response.17
[34] While your mental impairment is the consequence of a stroke and is not a disease of the mind as was the case in Shailer, I do not see any reason for distinguishing between mental impairment caused by a disease of the mind and mental impairment resulting from a physical cause such as a stroke.18 As Kós P noted in Shailer, criminal legal responsibility is a juridical response to an offender’s willed choice to offend, and mental health disorders diminishing that willed choice may also diminish the extent of the sentencing response. The Court said a disorder diminishing willed choice may justify a reduction in the starting point of a sentence, based on diminished culpability, where there is evidence of its causative impact on culpability.19
Setting the starting point
[35] The Crown submits that in light of your limited role in the importation, if you are to be sentenced on the basis of recklessness a starting point of eight to nine years is appropriate in order to reflect your lesser culpability.
[36] Your counsel, Mr Tait and Mr Hudson, submit that your reduced role and reckless culpability warrant a starting point of seven years imprisonment before consideration of your mental disorder.
[37] In my view, the key factors relevant to setting the starting point in your case
are your limited role in the importation, your degree of reckless culpability, and the
16 Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [45] and at [48]. E (CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [70].
17 Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [50]; R v M [2008] NZCA 148 at [33].
18 Indeed the Victorian authority of Verdins v R (2009) 16 VR 269 (VCA) that E (CA689/10) v R
[2011] NZCA 13, (2011) 25 CRNZ 411 and Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 discuss emphasises at [5] and [8] that what is relevant is the nexus between “impaired mental
functioning” and offending or its ongoing impact.
19 Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [50].
relevance of your neurocognitive disorder to the offending. Also of relevance is the lower purity of the drug.
[38] On your role, the quantity and value of an importation are most relevant to offenders who are high in the chain of command. People like that have greater knowledge of the scale and the consequences of the offending, and they receive the most direct profits. For offenders at a low level in the command chain, the amount and value are less central as aggravating factors.20 This Court has recognised on at least nine occasions that in these circumstances, sentences below the Fatu bands may be appropriate.21
[39] Your role was that of a courier or a mule, which is the lowest end of culpability, as opposed to the more serious roles of a catcher, manager or organiser.22 Indeed, in your own case, you have likely been an unwitting mule. You were convicted because the jury considered that you must have appreciated that there was a real risk there were drugs in the suitcase you brought into the country, even if you denied any such appreciation.
[40] I am satisfied that your limited role is at the lowest end of seriousness for offending of this kind. While the quantity you imported was a commercial quantity, it is doubtful you had any commercial motivation in carrying the drugs. Your eye was on the illusory prize of the inheritance scam. It is open to question whether you knew you had become a player in a drug ring and whether you knew the people with whom you were interacting were involved in the international drug trade.
[41] As the Crown accepts, your reckless culpability is lower than wilful blindness and the quantity and purity of drugs are substantially less than in R v Soles. I also accept the submission from your counsel, that your conduct was much less reckless
20 Tilialo-Staples v Police [2013] NZHC 1255 at [21]; endorsed in R v Piahana [2017] NZHC 2763 at [19].
21 R v Burdett HC Auckland CRI 2007-092-005673, 20 November 2007; R v Baldwin HC Palmerston
North CRI-2008-054-001871, 10 September 2009 at [11]; R v Kupkovic [2014] NZHC 1946, in relation to Mr Leighton Hoe at [54]; R v Soles [2014] NZHC 2665; R v Hughes [2015] NZHC 22 at [14]-[17]; R v Keogh [2016] NZHC 508; R v Pene [2016] NZHC 2787; R v Harland [2017] NZHC 1226; R v Wellington [2018] NZHC 2196, in relation to Ms Chevonne Wellington at [41]- [43].
than that of the offender in Cameron and that your involvement came about as a result of your being manipulated by others. The starting point, therefore, ought to reflect this substantially lower level of culpability and criminality.
[42] On your mental impairment, you suffer from a moderately severe neurocognitive disorder. Your impaired cognitive functioning is characterised by reduced reasoning and judgment-making as well as a naïve innocence which renders you particularly vulnerable to exploitation by others. In my judgement, this had a direct bearing on your involvement in the crime for which I must sentence you and substantially reduces your culpability and the appropriate sentencing response.23 I consider you came to be involved in the importation of methamphetamine because you were duped by the so-called Reverend and Ms Elizabeth into acting as their mule rather than by a willed choice on your part.
[43] Your vulnerability to exploitation by the Reverend van Cabin was amply apparent in the evidence at your trial. I have no doubt that the Reverend and his associates took full advantage of your gullibility in persuading you to go to South Africa, to hang about for the best part of three weeks while they put in place the arrangements to obtain and secrete the methamphetamine, and then to get you to bring a new bag containing the methamphetamine into New Zealand.
[44] In the present case, and as was apparent at your trial and is apparent from the reports by Dr Karayiannis and the Department of Corrections you had, and still have, little appreciation of the nature and significance of the crime of which you have been found guilty. This is not a case of you failing to be remorseful. Rather, your attitude reflects a basic inability to understand why you have been found guilty of the offence. In these circumstances, and where the future protection of the community is not engaged, denunciation and specific and general deterrence become less relevant sentencing objectives.24
23 Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [50].
24 Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [48]; E (CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [70].
[45] Taking all of these considerations into account, as well as the lower purity of the drug, I consider a starting point of five years’ imprisonment to be appropriate.
Personal mitigating features
Impact of mental disorder / diminished intellectual capacity or understanding
[46] The Crown says you should receive a discount in the vicinity of 20 per cent to reflect the role that your mental health issues had in the offending. Mr Tait submits that a discount of 30 per cent would be appropriate to take account of your diminished intellectual capacity and understanding.
[47] I consider your impaired mental function to be particularly relevant to the fact that the existence of your condition may mean that a given sentence will weigh more heavily on you than it would on a person in normal health. This is one of the circumstances where impaired mental functioning may be relevant to sentencing as identified by the Victorian Court of Appeal in Verdins v R25 and as referenced by the New Zealand Court of Appeal in E (CA689/2010) v R,26. However, as the Court of Appeal in Shailer emphasised, it is important not to place the analysis of the relevance of mental disorder in a juristic straightjacket.27
[48] As the Crown acknowledges in its submissions, having regard to Dr Karayiannis’s findings that you are a “very vulnerable” individual at “moderate to high risk of exploitation” and having regard to the circumstances of how you became involved in this scam, a discount is appropriate to reflect your vulnerability and your diminished intellectual capacity. There is also a not insignificant risk that imprisoning a person in your situation where you have displayed a fundamental incapacity to understand the criminality of your actions, could have an adverse effect on your mental
health.
25 Verdins v R (2009) 16 VR 269 (VCA) at [32].
26 E (CA689/2010) v R NZCA 13, (2011) 25 CRNZ 411 at [70].
27 Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [48], noting the purposes and principles under the Sentencing Act 2002 which may be engaged by mental health disorders.
Lengthy imprisonment a disproportionately severe punishment
[49] As recognised by the Court of Appeal in R v Verschaffelt,28, leniency may be shown in sentencing where, due to a medical condition of disability, prison would constitute a more severe penalty for the particular offender. The Crown accepts this is such a case and submits that a discount in the vicinity of 30 per cent would be appropriate. Mr Tait proposes a similar reduction to take account of your age and ill health.
[50] The health assessor’s report and the circumstances of this offending leaves me little doubt that because of your mental vulnerability you would be likely to be exploited during a long term in prison. For that reason, a lengthy term of imprisonment would weigh more heavily on you than it would on a person in normal health. Accordingly, I am satisfied that a discount is appropriate to recognise that your reduced cognitive functioning and resultant vulnerability would mean that a sentence of imprisonment would be subjectively, and objectively, more punitive for you than it would be for others.29
[51] Your physical disabilities are another consideration. Because of the paralysis of your arm, everyday tasks such as showering and dressing are onerous for you. At present, you receive assistance from disability support services to manage these tasks. You also suffer from recurring ulceration of your lower legs, and your doctor has expressed concern at whether the daily dressings she considers appropriate could be adequately provided in the prison environment. She has also expressed a concern that without the appropriate care and expertise, this condition could deteriorate and require surgical intervention.
[52] Notwithstanding the report from the Department of Corrections which broadly states that your medication and wound care could be adequately managed in prison, I am satisfied that your physical frailty and restricted mobility because of your ongoing health issues would also make prison a particularly difficult environment for you.
28 R v Verschaffelt (CA239/02) 29 August 2002.
29 R v Nilsson CA552/99, 27 July 2000 at [10]; R v Rys [2007] NZCA 360 at [45].
[53] Mr Hudson submits that because of our specific health needs it is likely you would need to be placed in the High Dependency Unit at Rimutaka Prison, many hundreds of kilometres away from your wife who has been your primary care giver and support since your stoke. Your counsel has also properly raised concerns as to how your mental impairment would impact on your ability to communicate your medical needs in prison.
[54] I consider these are all matters which should be reflected in the discount which
I will address in the context of making an overall assessment of your sentence.
Lack of previous convictions, good character and rehabilitation
[55] The Crown accepts that your previous convictions are not relevant to the present offending and seeks no uplift. While acknowledging your 13 convictions for driving and low-level assault between 1979 and 2000, Mr Hudson has sought a modest discount of five per cent for good character as those predate your stroke.
[56] I accept these are essentially historic convictions and I acknowledge your behaviour since then has been without incident but for the events that led to your conviction. However, I do not see this factor as itself meriting a discount.
[57] As far as your prospects of rehabilitation are concerned, these are difficult to assess given your cognitive impairment and your repeated foolish pursuit of enrichment schemes through internet scams. That said, your prospects for rehabilitation are likely to be much greater if you can stay close to your family and whanau community than if you were in prison very far from your support group.
[58] Moreover, since it would seem highly unlikely that you would be presented with another opportunity to travel overseas in a similar way as happened on this last occasion, I consider the risk of repeat offending and of your causing harm to others to be very low. In that regard, I do not accept the pre-sentence report writer’s view that because of the current offence you must be assessed as being at high risk of harm to others in the future. I consider Dr Karayiannis’s summary of risk to be more accurate. You are of a low risk of future violence, a moderate to high risk of self-neglect and exploitation, and a low risk of dangerousness. Overall, you are of little risk of harm
to the community. The greater risk is to yourself because of your vulnerability to others.
Retrospectivity and time spent on bail
[59] Mr Hudson has urged upon me that some discount should be made to take account of the fact that, through circumstances that had nothing to do with you, your trial was delayed with the result that it was held after the release of the Supreme Court decision in Cameron.30 Mr Hudson notes that prior to Cameron, the Crown would have had to established knowledge or wilful blindness. By inference, he suggests that the Crown would have struggled to secure your conviction on the basis of the law as it stood pre-Cameron. He submits that the consequence for you has been the imposition of retrospective liability based on a lesser mens rea standard that did not apply at the time of your offending.
[60] Mr Hudson submits this is contrary to s 26 of the New Zealand Bill of Rights Act 1990 which provides that no person shall be held liable to conviction for an offence on account of actions that did not constitute an offence at the time they were carried out. Mr Hudson points to the Supreme Court’s decision in Y v R where the Court considered the issue of retrospectivity in the context of judicial interpretation of the scope of offending under the Crimes Act. In that case, the Supreme Court considered the issue did not arise on the facts of that case but left open the possibility of the question being revisited in the future.31
[61] While I recognise this as an inventive argument, I do not accept this is a case of retrospectivity. The focus of Y v R was on whether the acts in question came within the scope of the relevant sections. In this case, the act of importing controlled drugs was an offence before Cameron. The focus on Cameron was on the necessary intent. Therefore, Cameron did not have the consequence of making unlawful an action that was previously lawful. Rather, it clarified the nature of the mental element necessary to prove the offence. Accordingly, I do not accept there is a case to grant a discount for the alleged retrospectivity.
30 Cameron v R [2017] NZSC 89, [2018] 1 NZLR 161.
31 Y (SC 40/2013) v R [2014] NZSC 34, [2014] 1 NZLR 724.
[62] On the other hand, I accept that the cumulative impact of the almost two years taken to reach trial while you have been on bail subject to conditions, including a reporting condition, warrants some credit to reflect the restrictions on your liberty and the obligations imposed upon you. As with the previous considerations, I take this consideration into account in the broad overall assessment I make of your sentence.
Overall assessment
[63] As the Supreme Court said in Hessell v R, overall the sentencing task remains one of evaluation that leads to what the judge is satisfied is the right sentence for offending in the light of the offender’s acknowledgement of guilt and all other relevant circumstances.32
[64] As I have already observed, there has been no acknowledgement of guilt on your part. You struggle to appreciate that you did anything wrong because of the cognitive impairment that played a significant part in your offending. For that reason, I place no weight on the lack of acknowledgment of guilt.
[65] That said, in my view, the much more relevant considerations are that you are an older person in frail condition who was duped and manipulated by experienced and sophisticated criminals because of your naïve innocence and vulnerability. That naïve innocence and vulnerability stem from the cognitive impairment caused by your stroke. Those circumstances also mean you would be vulnerable in prison to exploitation by others. Those factors, as well as your physical circumstances, would make imprisonment more severe than would be the case for a normal person.
[66] In almost any other case that I could envisage, those circumstances would still not save you from a substantial term of imprisonment. Given the quantity of drugs involved and the clear legislative policy, as reflected in s 6(4)(b) of the Misuse of Drugs Act 1975 and as reinforced by the decisions of the Court of Appeal in Fatu and subsequent cases, that an importer of a substantial quantity of methamphetamine
32 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
should be sentenced to imprisonment, it is almost inevitable that a person in your situation would be imprisoned.
[67] However, I consider your case to be a singular exception to that rule. In addition to the greater severity that a term of imprisonment would mean for you, I can see no purpose to requiring you to spend what could be some of the last years of your life separated from your wife and the support systems that make your life tolerable. I consider the chances of you repeating this kind of offending or, indeed, any other kind of serious offending to be remote. So, there is nothing to be gained in terms of specific deterrence from requiring you to go to prison.
[68] In terms of general deterrence, I am very mindful of the considerations pointed to by Courtney J in R v Soles that an important objective in sentencing in these kinds of cases is deterrence and that, by analogy, treating even an unwitting drug mule as in your case more leniently than a drug mule with actual knowledge risks conveying a unfortunate message to drug importers and others that it may be possible to import drugs and still avoid imprisonment if caught.33 However, and leaving aside the pertinent questions raised by Palmer J in Wellington about the effectiveness of deterrence,34 your case is quite different even from that in Soles which Courtney J described as “extremely unusual, possibly unique”. Yours is not a case of wilful blindness but of reckless, perhaps unwitting, blindness caused by your mental impairment. In these circumstances, I do not see any purpose of general deterrence being served by requiring you to go to prison. It is hard to envisage your situation as serving as a template for the recruitment of drug mules.
[69] For these reasons, my overall assessment of the case is that the interests of justice would not be served by requiring you to serve a sentence of imprisonment. That consideration, informed by as the personal mitigating factors identified above, lead me to conclude that a discount of three years to the starting point of five years’ imprisonment is warranted with the result that you are eligible for home detention.
33 R v Soles [2014] NZHC 2665 at [8].
34 R v Wellington [2018] NZHC 2196 at [8].
[70] I reach that conclusion because I consider home detention to be right sentence in your circumstances. You suffer from a significant mental impairment, you are unwell, you require daily care, you are not a dangerous man from whom the community needs protection from, and I am satisfied your rehabilitation and reintegration will best be served by a community based sentence.
[71] I must emphasise, however, that it is the unusual combination of circumstances in your case that have led me to that conclusion and that I consider the chances of those circumstances being approximated, let alone replicated, in a future case to be very low.
[72] The pre-sentence report says that your current address at 1/6 Corns Road is technically suitable for electronic monitoring and that there are no safety or technical concerns held for the occupants. It also records that you consent to the standard and proposed conditions for home detention and to the 24-hour curfew inherent in this sentence.
[73] I recommend however, that consideration be given to monitoring your use of the internet, so that some steps can be taken to avoid any repetition of the circumstances that lead to your current offending.
Sentence
[74] Mr King, would you please stand.
[75] On the charge of importing a Class A drug, I sentence you to 12 months’ home detention on the conditions set out in the pre-sentence report.
[76] As requested by your whanau through your counsel, I also impose a condition that you are prohibited from accessing the internet for the duration of your detention.
[77] You may stand down.
G J van Bohemen J
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