R v Lukasik
[2021] NZHC 1494
•22 June 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-004-003861
[2021] NZHC 1494
THE QUEEN v
PATRYK LUKASIK RYSZARD WILK
Hearing: 22 June 2021 Appearances:
B Dickey for the Crown
L Smith for the Defendant Lukasik A Ives for the Defendant Wilk
Judgment:
22 June 2021
(ORAL) SENTENCING REMARKS OF WALKER J
This judgment was delivered by me on 22 June 2021 at 3.30 pm Registrar/Deputy Registrar
R v PATRYK LUKASIK & ANOR [2021] NZHC 1494 [22 June 2021]
Introduction
[1] Patryk Lukasik and Ryszard Wilk, you are for sentence before me today. At the conclusion of a jury trial before me in May 2021, you were both found guilty on charges relating to the importation of four kilograms of the illicit drug cocaine.
[2] Mr Wilk, you were convicted on one charge each of importing cocaine, a class A controlled drug, into New Zealand;1 conspiring to import cocaine;2 supplying cocaine;3 and possessing 3.6 grams of cocaine for the purposes of supply.4
[3] Mr Lukasik, you were convicted of one charge of importing cocaine, and one charge of money laundering of NZD 2,382.20, being the proceeds of the sale of cocaine.5
[4] The maximum penalties for these charges vary but the maximum available sentence for both the charges of importing and supplying cocaine is life imprisonment.
[5] In sentencing, it is necessary for me to set out what you have done, the circumstances and legal principles that I must, by law, apply. I will use that information to identify an appropriate starting point for your offending, based on the aggravating and mitigating features of that offending. I will then consider whether there are any factors personal to each of you which mean that the starting point should be adjusted. This two-stage process will produce the end sentence to be imposed.6
[6] Finally, I will consider whether a minimum period of imprisonment should be imposed on you, pursuant to s 86 of the Sentencing Act 2002.
[7] By way of preliminary remarks, it is relevant to both of you that Mr Wilk’s son, Ralph Wilk, pleaded guilty to a representative charge of supplying four kilograms of cocaine and one representative charge of money laundering. He was sentenced on
1 Misuse of Drugs Act 1975, ss 6(1)(a) and 6(2)(a). Maximum penalty life imprisonment.
2 Section 6(2A)(a). Maximum penalty 14 years’ imprisonment.
3 Sections 6(1)(c) and 6(2)(a). Maximum penalty life imprisonment.
4 Sections 6(1)(f) and 6(2)(a). Maximum penalty life imprisonment.
5 Crimes Act 1961, s 243(2). Maximum penalty seven years’ imprisonment.
6 Moses v R [2020] NZCA 296.
those charges in October 2018.7 The sentencing Judge adopted a global starting point of 11 years’ imprisonment which the Court of Appeal confirmed was available. This, despite his role being subordinate to yours, Mr Wilk. It is that starting point—the first stage of the enquiry—that is a relevant factor in sentencing you because I must consider the principle of parity.8 I will therefore have regard at the first stage to the starting point adopted by Peters J and your culpability relative to Ralph Wilk. For the same reason, it will also be necessary for me to achieve parity in the starting points adopted in respect of each of you for your respective roles and culpability.
[8] I must accept as proved all of the facts which were essential to the jury’s finding of guilt. As the trial Judge I also am entitled to make factual findings based on the evidence at trial, where they are consistent with the jury’s verdict.9
Your offending
[9] I will begin, then, by setting out the facts in summary form though these are well known to you. I do so as sentencing is carried out for the public on behalf of the public.
[10] Mr Wilk, you are a Polish national. You and your son arrived in Auckland on 6 September 2016 for the express purpose of meeting a drug courier. The courier was on-board a vessel arriving at the Ports of Auckland. The day after your arrival, you picked up the consignment of four kilograms of cocaine.
[11] You supplied the drugs to unknown persons based in New Zealand. It appears that you Mr Wilk managed to supply about half of the cocaine over the course of the week. You had enough funds to meet the courier in Tauranga to pay him what was still owed for his services. You set about trying to remove cash out of New Zealand by laundering the proceeds of that transaction or transactions, transferring money through bank accounts or hiding cash in luggage.
7 R v Ralph Alan Wilk [2018] NZHC 2704, appeal dismissed [2020] NZCA 172. It appears Mr Wilk Jnr has since obtained parole in New Zealand, returned to Poland, and is now, according to his father’s statements to his Corrections pre-sentence report writer, running a solar panel business.
8 Sentencing Act 2002, s 8(e).
9 Section 24(1)(a); Edwardson v R [2017] NZCA 618 at [105]–[107].
[12] Mr Lukasik, you were not at this point in time in New Zealand. The jury accepted that your role in this importation was to assist and/encourage the Wilks, by facilitating contact between the Wilks and the courier. The evidence at trial, in the form of intercepted telecommunications, showed that you were in contact with Mr Wilk and remotely provided details of the courier’s movements on-board the ship as he made his way to Auckland. But your involvement went beyond being a mere communication intermediary when seen in its overall context.
[13] Mr Wilk, you and your son left New Zealand on or about 22 September 2016. You both returned on 6 November 2016 to complete unfinished business. Perhaps to supply the rest of the cocaine but certainly [to receive] payment. By mid-November your activities had aroused suspicion and the Police had “eyes and ears” on you through surveillance device warrants to intercept private communications between you and local associates. Much of the dealing in money had already occurred utilising locally based associates, both of whom have pleaded guilty to money laundering.
[14] It was on the basis of communications intercepted on or about 18 and 19 November 2016 on an encrypted messaging application that the Crown alleged, and the jury accepted, that you Mr Wilk, conspired, together with your son, to arrange a further importation of cocaine into New Zealand through a different channel.
[15] It is against that backdrop that Ralph Wilk’s luggage was covertly searched when he left New Zealand on 20 November 2016. Located in his suitcase, concealed in four Chinese noodle packets was NZD 40,000. The funds were seized without Ralph Wilk being aware. You, Mr Wilk, remained in New Zealand until 16 April 2017 and continued with the money laundering activities, meeting with the same associates in New Zealand, collecting cash and making arrangements to remove the cash offshore by various means.
[16] Mr Lukasik, you arrived in New Zealand on 5 December 2016, together with an associate. Communications between you and Mr Wilk show that your participation and presence in New Zealand to “assist” at this end of the operation was a step you initiated. You were collected from the airport by Mr Wilk. You say that you came to New Zealand either on behalf of your father, or at least in connection with your father’s
involvement. During your time here you remitted NZD 2,382.20, being the proceeds of crime, to your father overseas. This is the money laundering transaction that you were found guilty of by the jury. Police surveillance showed you accompanying Mr Wilk to meet various parties who have since pleaded guilty to money laundering. You facilitated contact with a Mr Khan, another person who assisted with the money laundering activities through money remitters.
[17] On 11 December 2016, you and your associate attempted to leave New Zealand. You were searched. You were found with NZD 35,000 cash concealed in your luggage within the pages of a book and a Christmas present and a further NZD 5,000. Your associate had NZD 35,000 concealed in his luggage in various ways. The cash was seized. You offered the excuse that you owed a debt to “bad men in Ireland” and had been instructed to travel to New Zealand to take cash back to Ireland. While the cash was seized you were allowed to depart New Zealand the next day.
[18] Mr Wilk, as I have said, you meanwhile remained in New Zealand until about 16 April 2017. During your stay, the Police covertly searched your luggage and hotel rooms. The searches revealed that you were in possession of significant sums of cash. When you attempted to leave, a search of your luggage revealed an array of different currencies totalling over $70,000. Your belongings were searched, the cash seized, and the messages on your phone photographed; revealing much of the detail summarised above. A number of the messages were between you, your son, unknown members of the international importation ring, likely in Ecuador, and Mr Lukasik. The messaging demonstrated the nature of your role directing your son’s actions.
[19] Your son returned to New Zealand on 5 June 2017. This can only have been for the purpose of collecting more of the money and arranging its removal offshore. The Police resumed their covert surveillance. Your son was seen handing a bag of money to the New Zealand based associate. You messaged your son, directing him to Bastion Point with explicit instructions to pick up the stash concealed by you there. On 15 June 2017, he left his hotel in Auckland carrying a bag, bussed to Mission Bay and walked up the steps to Bastion Point. Your son returned to his hotel later that morning. He was observed by Police carrying a bulkier bag. After your son was
arrested, the Police searched the Bastion Point location. A second visit led them to find half buried, ripped, empty, black rubbish bags and a plastic pottle with a small amount of cocaine, stuffed inside a plastic snap lock bag inside another snap lock bag. This must have been the residue of the drug imported the previous year, the rest having been successfully supplied to unknown persons.
[20] Both you Mr Wilk and you Mr Lukasik were extradited to face trial in New Zealand, Mr Lukasik from Germany and Mr Wilk from Venezuela.
Personal Circumstances
[21] I begin with you Mr Lukasik. Based on your self-reporting, you are a 43 year- old man of Polish descent who grew up in Germany. You have lived in Belfast, Northern Ireland for many years. You have a strong command of the English language and speak other languages also. You are married and have two children living in Belfast. You have no previous criminal history in New Zealand or elsewhere. The pre-sentence report prepared by the Department of Corrections states that you displayed some remorse for your actions stating you are sorry for hurting people around you and the embarrassment you caused. You described yourself to the report writer as a normal family man trying to get closer to your father but who missed red flags. You also stated that you are “owning up to it”. You admitted assisting. You say that you have had no contact with your father since 2016.
[22] Your wife and young adult daughter have written to the Court to express their support for you. They speak of your care for them; that you have always been hard- working and stable. Both write of difficulties in your life stemming from an innate desire for validation from your father. Naturally, they also speak to the nightmare of these events for them.
[23] The Court has also been provided with a psychologist’s assessment from Mr van Rensburg, a registered clinical psychologist. This report is tendered pursuant to s 27 of the Sentencing Act. Ms Smith relies primarily on this report to submit that a discount in respect of deprivation in your personal, family, community, and cultural
background is available. She submits these factors reduce your culpability in respect of this offending. I return to that submission later in my sentencing remarks.
[24] Mr van Rensburg characterises your relationship with your biological father, Jan Lukasik, as “conflicted”. You described your father as egomaniacal, narcissistic, and deceptive. He left the family when you were young, and your mother remarried twice. Yet you also recognise that you have been drawn to him whenever he made an “opportunistic” appearance in your life, usually when you faced financial difficulties or other life stresses. You say it was a debt arising out of dealings with your father that led to you coming to New Zealand as part of the offending. You say your father told you to come here and collect money owed to him from Mr Wilk Snr; that you could recover what you were owed at the same time. Apparently, your father has been of no support, material or otherwise, since.
[25] You told Mr van Rensburg, consistently with the Corrections report writer’s comments, that you have decided to make the best possible use of your time in prison, have been working in the kitchens, and learning the value of co-operating with others.
[26] I turn to you Mr Wilk. The information you have shared with the Court for the purpose of sentencing is relatively slim. You are a 59 year old Polish citizen. You have very limited English although you are multilingual—speaking Spanish, Polish and Hungarian. You have no relevant criminal history. Your interviews have been conducted with the assistance of Polish interpreters. You have stated in your interview with the report writer from the Department of Corrections that you are not guilty of the offending but stated you have been “thinking about the situation, what it cost others, I feel guilty, many people would suffer, my son is suffering, I brought this suffering to other people.”
[27] You have by all accounts been a compliant prisoner employed in the prison kitchen with a positive attitude and great work ethic.
[28] You are a car mechanic by trade but have been involved in various businesses over the years. You have three children from different relationships with your youngest being only eight years of age. The two youngest children live in Poland in
different cities. It is necessarily very difficult to maintain contact with them which you say weighs heavily on you.
[29] The Court has received letters of support for you from a former partner and your sister who describe you as a family man and who speak of your ready willingness to help family members.
Purposes and principles of sentencing
[30] The Court’s primary purpose in sentencing for drug importation is the need for deterrence—that is to deter you and any other persons from committing the same or similar offences.10 Also relevant is the need to hold you both accountable for the harm to the community, promoting in you a sense of responsibility for, and acknowledgement of, that harm.11 The sentence to be imposed is also intended to denounce the fact you have harmed the community for gain.12 Equally, the Court must have regard to your prospects of rehabilitation and your personal circumstances where that means that a sentence otherwise appropriate would be disproportionately severe.
[31] It is certain that both of you will be deported on release, so reintegration is not a societal concern for the New Zealand public. The Court must impose the least restrictive outcome appropriate in the circumstances.13
[32] I agree with Ms Smith and Ms Ives that it is important to weigh the gravity of your offending, and your individual culpability;14 both against that of other defendants engaged in similar offending generally, and also relative to one another and Ralph Wilk.15
10 R v Terewi (1999) 3 NZLR 62 (CA) at [13]. See Sentencing Act 2002, s 7(1)(f).
11 Section 7(1)(b).
12 Section 7(1)(e).
13 Section 8(f).
14 Section 8(a).
15 Section 8(e).
Sentencing for cocaine-related offending generally
[33] It is common ground that while there is no tariff for cocaine dealing, the tariff case for sentencing in methamphetamine cases, Zhang v R,16 at least informs the exercise. The reason why the bands established in Zhang do not apply directly to offending involving cocaine is because there has been no authoritative assessment of the social harm occasioned by cocaine whereas this empirical work has been carried out in relation to methamphetamine.17 The principles of logic in Zhang remain useful.18 They are also an appropriate “cross-check”.
[34] In Zhang the Court of Appeal continued to attach importance to the quantity of drugs as a measure of culpability.19 This is on the basis that quantity remains a proxy for the social harm occasioned by the offending.20 The top band is reserved for cases involving two or more kilograms of methamphetamine. On a direct application of Zhang the top band would be relevant here. The top band is said to generally attract starting points of between 10 years and life imprisonment.21 Both Ms Ives and Ms Smith submit that four kilograms is however extremely modest in terms of the sorts of quantities that we now routinely see come into the country.22 This is a regrettable truth.
[35]The Court in Zhang also recognised that quantity is not the only determinant.
Also relevant is an offender’s role.23
[36] A “leading” role which attracts a more severe sentence means a principal role in the commercial sale and on-supply of methamphetamine in a sophisticated and organised manner with a profit motive. At the other end of the spectrum is a “lesser” role—someone acting under coercion or feeding their own addiction or motivated to obtain the drug for their own or joint use on a non-commercial basis.24 Neither of
16 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
17 Wilk v R [2020] NZCA 172 at [40].
18 At [27].
19 At [10(b)] and [125].
20 At [104].
21 At [125].
22 See R v Scott [2020] NZHC 68 (76 kg cocaine); and R v Cook & Suarez [2017] NZHC 2034 (35 kg cocaine).
23 At [104].
24 At [126].
those two roles are relevant here. Instead, lying between these two ends is the role described as “significant”. This is a mid-level role, generally within a more sophisticated organisation, motivated by profit and with commercial aspects.25
Starting Point — Mr Wilk
[37] Turning then to the starting point in respect of your offending, Mr Wilk. The Crown argues for a starting point of 13 years on the lead charge, being the September importation of at least four kilograms of cocaine. Mr Dickey submits that a six month uplift is appropriate in respect of the discrete conspiracy offending, so to 13 years and six months on a totality basis. The Crown does not seek an uplift for the other aspects of your offending, that is, for supply and possession for supply since these are incidents of the lead offending. This, Mr Dickey submits, reflects the quantity of cocaine imported, your “significant” (in terms of the Zhang descriptors) role in the offending, is consistent with comparable cases, and achieves parity with the 11 year starting point adopted in respect of your son, Ralph Wilk.
[38] Ms Ives submits that an appropriate starting point is in the vicinity of between 12 to 13 years in total. She acknowledges, correctly in my view, that a higher point for you than your son is justified based on role. But, she contends only a “slightly higher” starting point because your role is not as different as your son’s sentencing notes would suggest. There is however broad agreement that your role, Mr Wilk, is properly characterised as “significant” in terms of the Zhang role descriptors.26 I agree. You were not the leading figure within the international drug supply chain involved but had direct contact with those above you in the importation chain abroad and to the supply chain below you. Your gain from this dealing was unlikely to be the lion’s share of the profits.
[39] Equally, it is clear you acted with some autonomy in New Zealand, having operational and management functions over the on-supply and the money laundering process. You operated for commercial gain. I agree with Ms Ives the actual extent of your profit is not clear, but that is not a mitigating feature in itself. Materially, you
25 At [125].
26 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [128].
came to New Zealand for the sole purpose of dealing in cocaine and then repatriating the proceeds of that criminal enterprise abroad.
[40] You were plainly aware of the broader criminal network and had full knowledge of the nature and quantity of the drugs involved. These are all indicia of a “significant” role. In saying this, I have regard to the fact that this was not particularly sophisticated offending, but there was a degree of organisation. It was also sustained over a lengthy period. While only one importation occurred as far as the authorities know, a further importation was at least planned.
[41] The summary of facts to which your son pleaded guilty provides a slightly different texture from the facts that emerged at trial. I have concluded that you are materially more culpable than your son, and this should attract a somewhat greater starting point. I am satisfied that you made decisions about supply and you laundered money into your personal bank accounts and those of your associate which suggests a significant role. The intercepted calls showed that you (operating as Richie) refused to supply further cocaine until the outstanding payment for the first supply was paid in full.
[42] This is particularly appropriate given the discrete conspiracy charge for which you appear for sentence. Knowing participation in importation is indicative of a significant role in a drug ring.
[43] I have considered all the cases referred to me by counsel. I agree with Ms Ives the pre-Zhang case of Agwu v R does not particularly assist, given the change in sentencing practice which Zhang has occasioned, and the rather more sophisticated, prolonged, and expansive nature of the offending in that case.27 That was, overall, significantly more serious offending. That made the adoption of an 18 year starting point unsurprising (particularly given the prevailing approach at that time).
[44]In the case of R v da Silveria, Mr da Silveria was arrested bringing
2.35 kilograms of cocaine into New Zealand in his luggage.28 He was a mule or
27 Agwu v R [2015] NZCA 619.
28 R v da Silveria [2014] NZHC 791.
courier, driven to offending by the need to pay off debts. His was clearly a lesser role than yours, yet the starting point of 12 years is broadly in the same range as that adopted by Peters J for your son. The volume involved was less than that involved here.
[45] In de Macedo v R, the importation of 2.4 kilograms of cocaine was concealed in luggage by a drug mule who appeared to be naïve—a vulnerable candidate for exploitation by others, who stood to gain little.29 Again, the amount involved was lesser. On appeal, a starting point of 11 years was held to be within range.30
[46] In Faiyum v R, the offender pleaded guilty to three charges of importing methamphetamine (some 3.2 kilograms in total) and two of importing cocaine (about 500 grams in total) concealed in various postal consignments as part of an ongoing broader supply into New Zealand. Mr Faiyum’s role as a “catcher” was characterised by the Court of Appeal as being between lesser and significant. On appeal, a starting point of 10 years’ imprisonment was adopted.31 The individual offender’s role there was rather less than present though the overall quantum of drug involved is similar.
[47] Having regard to the circumstances of your offending, your significant role and the volume at issue, along with considerations of parity, I adopt a starting point of twelve years and six months in respect of all of the charges for which you appear for sentence, Mr Wilk. To be clear, this includes the uplift of six months for the conspiracy charge.
Starting Point — Mr Lukasik
[48] I turn then to identify an appropriate starting point to mark the gravity of your offending, Mr Lukasik.
[49] The Crown contends for a global starting point in relation to both charges of 12 years and six months’ imprisonment, saying your role was also significant, and
29 de Macedo v R [2020] NZCA 132. See also Man v R [2017] NZCA 525—a starting point of 17 years for 2.18 kgs of methamphetamine. Mr Man was more than a catcher and responsible for processing the liquid form.
30 de Macedo v R [2020] NZCA 132 at [21].
31 Faiyum v R [2020] NZCA 523 at [22].
instrumental, though lesser than that of Mr Wilk. No discrete uplift is contended for in respect of the money laundering charge, that being wholly related to your involvement in the importation.
[50] Ms Smith contends that the starting point for the lead charge should be between 10 and 11 years’ imprisonment. I agree with your counsel Mr Lukasik that you plainly had a lesser role in the importation than either Mr Wilk Snr or Jnr but I also note that it was your enthusiasm to help out in New Zealand which principally led to you arriving in New Zealand to facilitate the money extraction. That cannot be divorced from the supply end since without the ability to recoup reward, the trade would not survive.
[51] It is correct that you acted under directions from either Mr Wilk Snr and/or your own father abroad and likely stood to gain comparatively little reward yourself from your involvement. In these respects, I agree that your role is correctly characterised as being between lesser and significant. I say between these categories for the reasons responsibly accepted by Ms Smith; namely an instrumental role in facilitation, and knowledge of the chain and volume. I depart from Ms Smith’s submission that your participation was not essential to the overall success.
[52] For these reasons and having regard to the same cases referred to above and considerations of parity, I adopt a global starting point of 11 years’ imprisonment.
Personal Circumstances — Mr Wilk
[53] I turn then to the second stage of sentencing to adjust these starting points in respect of aggravating and mitigating circumstances personal to you, Mr Wilk.
Foreign national prisoner status
[54] The submission is made that unlike your son or Mr Lukasik, you speak virtually no English. Ms Ives advises that, in custody, you have been largely dependent on Mr Lukasik for communication assistance, there being few Polish speakers in New Zealand, let alone prison. This, she submits, will render any period spent incarcerated significantly more onerous for you and compound the difficulties
you will experience as a foreign national prisoner far from friends or family in a different cultural environment.
[55] Such factors have been acknowledged by the Court of Appeal to attract a potentially significant discount, having regard to s 8(h) of the Sentencing Act 2002. In the light of the current COVID-19 pandemic, it is most unlikely your family will be able to travel to visit you in the near future. The Court is entitled to also have regard to these circumstances under s 8(h) as seen in recent cases to which Ms Ives refers.32 On the other hand, you elected to travel to New Zealand for the express purpose of committing this offending. That too needs to be weighed in the balance. Taking a holistic view of these factors, I consider a discount of 15 per cent is appropriate for personal mitigating factors including the fact that you have no prior relevant criminal history. This reduces your nominal sentence to 10 years and seven months.
Pre-extradition detention
[56] As noted, you were initially allowed to depart New Zealand before later being extradited to face trial. A certificate issued under s 62 of the Extradition Act 1999 has been obtained certifying you were detained in a Venezuelan prison for 465 days prior to your removal to New Zealand as a result of the request for extradition. Ms Ives submits that pursuant to ss 91 to 93 of the Parole Act 2002, the Department of Corrections will be required to regard this as equivalent to 465 days spent on remand in pre-sentence detention in New Zealand. That is to say, it will automatically count as time served.33 Therefore, by operation of law, you will receive credit for that automatically and it would be improper for this Court in sentencing to make any allowance for that period of detention. I am expressly handing down your sentence today on the basis of this understanding that the 465 days spent in detention in Venezuela will be credited in this way. As I would otherwise have reduced your sentence, I reserve to you to seek recall of this sentence if that proves not to be the case.
32 Hayden v R [2020] NZCA 329 at [57]; and R v Wilkinson [2021] NZHC 185 at [34]–[35].
33 Parole Act 2002, ss 89–90.
[57] Ms Ives submits that some allowance ought to be made for the fact that you were subject to very poor treatment while detained in Venezuela. In support of this submission, she refers to the comments of the Court of Appeal in O’Connor v R.34 There, the Court of Appeal upheld Moore J’s refusal to allow Mr O’Connor a discount for the conditions he allegedly experienced during detention in the Netherlands, on the basis there was no “objective evidence” before either the High Court or the Court of Appeal as to those conditions.35
[58] Your affidavit is not capable of providing the requisite “objective” evidence of your treatment in custody in Venezuela. The journalistic accounts of the treatment of prisoners abroad referred to by Ms Ives add some weight to the suggestion of ill- treatment but again, without more, I do not consider that any further discount is available at sentencing.
[59] Nothing else in your pre-sentence report points to the availability of an adjustment on the basis of personal factors not already canvassed.
Personal Circumstances — Mr Lukasik
Pre-extradition detention
[60] I turn then to consideration of your personal circumstances, Mr Lukasik. You, like Mr Wilk, spent a period in detention abroad following the New Zealand government’s request to extradite you. In your case, this was a period of seven months spent in Germany. Like Mr Wilk, I am handing down your sentence on the basis that you will be afforded credit for that period as time served pre-sentence automatically by operation of law, as if it was time served on remand in New Zealand pre-sentence. I need say no more about it other than I also reserve leave to you to recall this sentence if that understanding proves incorrect as I would otherwise have factored in a discount in my sentence.
34 O’Connor v R [2016] NZCA 414.
35 At [30].
Previous good character, life circumstances, and rehabilitative potential
[61] Ms Smith advises that you have no criminal convictions in either New Zealand or anywhere else. There is nothing to contradict this before the Court. Counsel rely on this, and also the Court of Appeal’s comments in Faiyum, to submit that a discount is available for your previous good character.36 I recognise that the Court in that case noted that a more restrictive approach will apply where an offender with limited history appears for sentence on charges relating to a sustained pattern of serious criminality, but I agree that in your case the report that you are contrite and motivated and able to rehabilitate supports a discount.37
[62] You impressed your report writer as genuinely remorseful, and as demonstrating insight into the harm that your actions have caused. You say that you are “owning up”. You are concerned that you will be isolated from your family as a result of your incarceration—in your case a wife and two children in Belfast, where you have lived for 22 years. Unlike Mr Wilk, it appears to be the case that you have drawn the necessary connection between your decision making and these consequences.
[63] The overall impression is that that you would not have, but for your father’s exploitation of your wish for a family relationship, become involved in the offending. Should you maintain your resolve not to engage further with your father I agree with the Corrections report writer’s impression you are unlikely to reoffend. This confirms to me the availability of a 12 per cent discount in respect of previous good character, remorse and rehabilitative potential.
Discrete discount in respect of personal circumstances
[64] However, I do not consider these matters justify a further discount under the heading of what are typically termed ‘s 27 report’ personal factors. More properly, those are discounts that reflect, where given, the role of adversity in an individual’s
36 In Faiyum the Court of Appeal accepted the trial Judge had erred in not allowing a discount for previous good character. Doing so, the Court noted its previous comments that discounts in respect of good character are available to those who were generally law-abiding before becoming involved in such offending, and that, without laying down a general rule to that effect, discounts of about 10 per cent often issued in respect of this consideration.
37 At [31].
personal, family, cultural, or community background, and more systemic social, cultural, or economic deprivation where an offender’s choice not to offend is impaired.38
[65] It is clear that there has to be a demonstrative nexus before a discount is warranted.39 Despite the setbacks in your own life history, and the exploitation by your father, there is no evidence of systemic deprivation materially reducing your culpability.40 You are a mature man, of an age when you must take responsibility for your actions.
Foreign national prisoner
[66] Like Mr Wilk, it is appropriate to allow you, Mr Lukasik, some discount in respect of now finding yourself incarcerated far from your family in Europe, especially at a time in history when visits from family will be difficult to arrange. But you have a strong command of English and have lived for many years in English-dominated cultural environments. I make the same comment that these factors have to be counterbalanced against the fact you chose to travel to New Zealand for the express purpose of assisting this criminal enterprise. A discount of a further five per cent is warranted, and I include within that consideration the current Covid restrictions on family travel.
Minimum periods of imprisonment
[67] Drawing all of the above together, I have arrived at an end sentence of 10 years and seven months in respect of you, Mr Wilk, and nine years and one month’s imprisonment in respect of you, Mr Lukasik.
[68] Ordinarily, a prisoner is eligible for parole after they have served one third of his or her sentence.41 Under s 86 of the Sentencing Act 2002, the Court may make an
38 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [162]–[163].
39 At [162].
40 Compare, for example, Mau v R [2021] NZCA 106 at [29]–[34], where the Court of Appeal recently allowed a discount of 7.5 per cent for an offender whom the Court accepted was unable to resist a family member’s call to join in serious offending because of the deprivation and hardship that family, including the appellant there, had experienced, evidence of which was available.
41 Parole Act 2002, s 84(1).
order requiring a prisoner serve up to two-thirds of their sentence before they become eligible for parole,42 if satisfied the default period would be insufficient. By insufficient I mean for the purposes of holding the offender accountable for the harm done to the community, denouncing their conduct, deterring them or others from reoffending, or protecting the community from the offender.43
[69] In sentencing Ralph Wilk, Peters J declined to make an order under s 86, on the basis that he would be leaving New Zealand immediately on his release from prison. Mr Dickey says I should depart from the Judge’s approach in this respect, and instead impose a minimum term of imprisonment of 50 per cent on both of you to denounce the harm your offending has caused and deter others from similar offending.
[70] I must however avoid any “mechanistic” making of orders under s 86. I must instead evaluate whether the grounds are in fact engaged before an order is imposed.44 According to the Court of Appeal in Zhang (which postdates Ralph Wilk’s sentencing), the fact that an offender will be deported on release is not a proper ground for refusing an MPI if it is otherwise appropriate.45
[71] While this was not the most extensive offending of its type, the amount of cocaine imported was still considerable, there was a clear interest on your part Mr Wilk in offending again and the evidence at trial disclosed a significant organised criminality motivated by commercial gain.
[72] I have concluded that the default term is not sufficient to achieve the purposes set out in s 86(2). It would be an insufficient response to your offending in the eyes of the community. A minimum period is required to confer a degree of reality.46 In your case Mr Wilk, you remain unrepentant and in denial in relation to your greater role in the offending. Mr Lukasik, I similarly consider that the default term is insufficient for the purposes of general deterrence, denunciation, and the promotion of accountability. While MPIs of 50 per cent in respect of methamphetamine offending
42 Sections 86(2) and (4).
43 Section 86(3).
44 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [10], [169], [171], and [174].
45 At [168].
46 R v Gordon [2009] NZCA 145 at [15].
are orthodox, I take into account the lack of empirical evidence about the level of social harm of cocaine. I impose minimum periods of imprisonment of 40 per cent.
[73] Before I hand down my formal sentences, I wish to extend thanks to all counsel for their comprehensive submissions on sentencing. You can be sure that your counsel have said all that can be said on your behalf. I will now formally hand down my sentences.
End Sentences
[74]Please stand.
Mr Wilk
[75] Mr Wilk, I sentence you to concurrent sentences of 10 years and seven months’ imprisonment on the charges of importing cocaine, conspiring to import cocaine, supplying cocaine, and possessing cocaine for the purposes of supply. By concurrent, I mean to be served at the same time. I do so expressly on the basis that you will be afforded credit for the period of 465 days as time served pre-sentence automatically by operation of law, as if it was time served on remand in New Zealand. I reserve leave to you to recall this sentence if that understanding proves incorrect.
[76]I impose a minimum period of imprisonment of four years and three months.
Mr Lukasik
[77] Mr Lukasik, on the charge of importing cocaine, I sentence you to nine years and one months’ imprisonment. I impose a concurrent sentence of six months’ imprisonment in respect of the charge of engaging in a money laundering transaction. I also do so on the basis that you will be afforded credit for the period of seven months as time served pre-sentence automatically by operation of law, as if it was time served on remand in New Zealand pre-sentence. I also reserve leave to you to recall this sentence if that understanding proves incorrect. Again, by concurrent, I mean served at the same time.
[78]I impose a minimum period of imprisonment of three years and seven months.
[79]Please stand down.
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Walker J
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