R v M HC Christchurch Cri-2008-009-4210

[2008] NZHC 1711

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2008-009-004210

REGINA

v

M

Appearances: D J Orchard for Crown

JHM Eaton for Accused

Judgment:      5 November 2008

SENTENCE OF HON. JUSTICE FRENCH

[1]      M  ,  you appear for sentence this morning on one count of importing a class A drug, cocaine.  The maximum penalty for that offence is life imprisonment.

[2]      The circumstances of the offending are as follows.

[3]       In May 2007, while working and living in London, you received a request from your uncle to send some cocaine to him at an address in New Zealand.  You obtained .8 of a gram of cocaine and placed it in a small snaplock bag, which you then concealed in a CD case.  The CD case was wrapped in cardboard and then sent to the address your uncle had given you, but with the name of the previous occupier

as the addressee.

R V M HC CHCH CRI-2008-009-004210  5 November 2008

[4]      The  package  was  intercepted  by  Customs.    After  confirming  its  illicit contents, they allowed it to be delivered and then executed a search warrant.  Your uncle was arrested, his computer was seized for analysis and the email exchanges between you and him arranging the importation then discovered.

[5]      You  returned  to  Christchurch  on  18  March  2008  and  were subsequently arrested and charged yourself.

[6]      For his part, your uncle pleaded guilty and was sentenced in August 2008 to two months’ home detention and a fine of $3000.

[7]      The Crown accepts there was no commercial element.

[8]      The pre-sentence report tells me you are 29 years of age, with no previous convictions except for a minor offence of fighting in a public place in 1999.  You are highly educated, a university graduate, and you come from a very close and supportive family.  You are engaged to be married, your fiancée currently residing in Australia where I understand you may both plan to live.

[9]      In England you were working as a project development manager for a UK bank for some three years.  You have effectively been in limbo as a result of this prosecution, with your career on hold for several months.

[10]      You fully acknowledged  your  wrongdoing to  the  probation  officer,  and clearly  you  bitterly  regret  your  actions.    You  are  reported  as  having  told  the probation officer that you acted without thinking of the consequences and that you looked up to your uncle as something of a role model.  He is approximately seven years older than you and it appears you have always been particularly close.

[11]     In addition to the pre-sentence report I have also read a number of references and letters from family and friends.   It is clear to me you enjoy a great deal of support and are held in extremely high regard by those people.   Your family has asked me in heartfelt terms to be lenient, pointing out the serious consequences of a drug conviction for you in terms of your future career in the international banking

and  finance  sector.    A  letter  from  a  recruitment  consultant  states  that  with  a conviction for importing cocaine, there would be no way at all that her agency would feel able to put you forward for any roles in the sector.

[12]     There is no certainty about the implications for your career, but the Crown acknowledge   that   the   conviction   will   pose   significant   difficulties   for   you, particularly given the current economic climate.

[13]     In deciding what is an appropriate sentence I am required by law to consider aggravating and mitigating factors relating to the offending, and also mitigating and aggravating factors applying to you personally.  As well, I am required to consider previous case law.

[14]     There is no guideline judgment as such on importation of cocaine, but there are a number of useful authorities on low-level importation including, of course most importantly, your uncle’s case (R v McGoldrick HC Christchurch CRI-2007-009-

007608).  In that case, Dobson J took as his starting point six months’ imprisonment, reduced it to three months on account of your uncle’s guilty plea and previous good character, with a final sentence of two months’ home detention and a $3000 fine. Regard was also had to the heavy toll the conviction has taken on your uncle’s business and his family life.

[15]     In  addition  to  your  uncle’s  decision,  counsel  have  referred  me  to  the following  authorities:  R  v  Reader  HC  Christchurch  CRI-2006-009-007876,  10

August 2006, Chisholm J; R v Taylor HC Auckland CRI-2005-092-006494, 8 July

2005, Potter J; R v Hemard HC Christchurch T30/03, 11 April 2003, Panckhurst J; and R v Karamanavis HC Invercargill CRI-2006-025-002406, 7 September 2006, Fogarty J.

[16]     In your case I identify the following aggravating features of the offending. First,  as  submitted  by the  Crown,  pre-meditation  and  planning.    The  offending showed a course of planning that was not impulsive – you were responsible for sourcing the drug in London, then concealing it in the CD packaging and posting it

to New Zealand.   Secondly there is the fact the package was sent with the clear intention of supply to another person.

[17]     The  mitigating  factors  are  that  there  was  no  commercial  element.    You derived no benefit from the offending and you did not instigate the offending.   I accept Mr Eaton’s submission that your culpability is less than your uncle’s.

[18]     As to mitigating factors relating to you personally, these are very strong: your previous good character, your guilty plea, and your deep remorse which I accept is totally genuine.

[19]     Mr Eaton submits that having regard to the gravity of the offending and the consequences of conviction for you in terms of your career, this is a case where discharge without conviction would be appropriate.   Mr Eaton describes this as a situation of naïveté in the extreme where you were under the influence of your uncle.

[20]      In support of his submission, Mr Eaton relies on the Hemard decision.

[21]   Mr Eaton has argued the case for a discharge without conviction very eloquently, and I know it is an outcome which both you and your family dearly desire.  I have some sympathy for your situation.  However in my view the offending is just too serious and the need for general deterrence too important to accede to that request.   I consider  the requirements of the s106 test are not satisfied.

[22]      Hemard was an exceptional case and distinguishable. In granting a discharge without conviction,  Panckhurst J stated at [16]:

I stress that this is a case which hinges very much on its particular facts, in particular your intended occupation in France and, additionally, the circumstance that you have spent two weeks in custody awaiting sentence. By a very narrow margin I have come to the view that it is possible for me to grant you a discharge without conviction.

[23]     Turning, then, to consider what is an appropriate sentence, I consider the starting point must, of necessity, be less than that identified in the case of your uncle, having regard to his greater culpability.   In your case I consider the starting point would be in the range of four months’ imprisonment.  As already discussed, there are

strong mitigating factors which warrant a generous discount, which would reduce the sentence to in the range of only one to two months’ imprisonment.

[24]      I am satisfied a custodial sentence is not justified, nor do I consider home detention appropriate for such a short period of time.

[25]     I have therefore decided to deal with the matter by way of a non-custodial sentence.  I had originally been minded to consider a sentence of community work, but having listened to Mr Eaton this morning I have been persuaded that the penalty you have already suffered by being on hold and having to stay in this country for so long awaiting the outcome of the prosecution means I should be more lenient and allow you to be able to leave as soon as possible.  Accordingly, I have decided to deal with the matter by way of a monetary penalty.  You will be fined $3000.

[26]     Paul Damien M  , you are convicted on a count of importing a class

A drug, cocaine.  I order you to pay a fine of $3000.

Solicitors:

Crown Solicitor, Christchurch Gibson Sheat, Lower Hutt JHM Eaton, Christchurch