R v R HC Wellington CRI-2005-085-1037
[2006] NZHC 168
•3 March 2006
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2005-085-1037
THE QUEEN
v
R
Hearing: 3 March 2006
Appearances: P V Paino with E Hall for the prisoner
G J Burston with C Boshier for the Crown
Judgment: 3 March 2006
ORAL RULING NO. 1 OF MACKENZIE J
[1] Mr Burston has raised the question of whether there should be a disputed facts hearing under s 24 of the Sentencing Act before I conclude sentencing. He submits that Mr R ’s counsel has in his submissions raised disputes as to certain of the facts which are alleged which Mr Burston submits are of importance to the Crown. Having heard from counsel on those matters, it is now for me to indicate the significance which I would attach to the matters which have been raised in terms of sentencing. Once I have done that, it will be for the parties to determine whether an application for a disputed facts hearing should be pursued.
[2] There are four items raised:
(1) The number of importations involved;
R V R (NO. 1) HC WN CRI-2005-085-1037 3 March 2006
(2) The quantity involved;
(3) The estimate of value; and
(4) The respective roles of Mr R and his co-offender, Mr Stark.
[3] Dealing with the importations and the quantity, I should indicate to counsel the basis on which I had intended to sentence. I proposed to sentence on the basis that Mr R had been involved in the importation on 98 separate occasions of a total of 159.3 litres of GBL and that a further 47.7 litres was intercepted by police or Customs; that he was also involved in two importations of approximately nine kilograms of GHB. I should indicate that I would not attach material significance to the question whether the number of importations was calculated in a different manner by having regard to the number of packages involved. I do, however, consider that, in view of the fact that the matter has been raised, I do wish to have a clearer understanding than I currently have of the precise number of packages and the relevant dates.
[4] The Crown has submitted a schedule in respect of those. It seems to me that the issues being raised as to the number of importations relate to the way I should assess the established facts rather than a dispute as to the underlying facts themselves. If that is so, then it may be more appropriate to enable counsel to have an opportunity to confer, to see whether a schedule can be prepared which takes full account of the points which Mr Paino raises, so that he can make his submission based on a fuller statement of facts than is currently before me. If, however, the dispute does go further than that, then I consider that the matter does have sufficient importance that it may be a factor which would influence, to a small degree, the starting point which I would adopt.
[5] The next matter is the question of quantity, and I have already indicated what I had taken from the material in respect of the total quantity. Again, I think that it may be appropriate to allow an opportunity for discussion between counsel as to whether there is in fact a dispute between them as to those quantities and, if so, how significant that is. If there is to be a dispute as to the actual quantity involved in any importation, that is the amount of GBL in any of the wine bottles, then that will need
to be resolved as the quantity is a significant matter, and any variation from the quantities which I had proposed to adopt, as I have indicated, would be a matter which could have an effect on the ultimate sentence.
[6] The third matter is the estimate of value. Because the Crown’s estimate of value had not been accepted by the prisoner, I had proposed in sentencing to have regard principally to the quantity involved. Estimates of value in respect of drugs, and in respect of this drug in particular, are difficult to make and can be no more than estimates. The level at which the particular offender is involved in the supply chain is relevant. So that I would attach limited significance to the value, as opposed to the quantity, of the drugs here. And I would not propose to sentence on the basis of any particular finding as to value but would regard the indications of value as of assistance to me in assessing the seriousness of the offending; but the primary measure for assessing the seriousness of the offending would be quantity.
[7] The fourth matter is the respective roles of Mr R and Mr Stark. It is important to ensure that Mr R is sentenced only for conduct on his part which is established against him. That must be both the starting point and the finishing point so far as sentencing for his involvement is concerned, and, if there is dispute on the statement of facts as to whether any particular actions materially were undertaken by one of the associates as opposed to the other, then that could have a material effect. I had not understood the submissions, until Mr Burston raised the matter in the way he did, as going so much to the extent of their involvement in the facts but as going more to their relative culpabilities. That is quite a different matter. An assessment of the relative culpabilities of co-offenders, based on actions which are proved or admitted on the part of each of them, is a task for a sentencing Judge. It involves an assessment of a wide range of factors, and it involves the exercise of judgement. Accordingly, to the extent that the dispute is not as to the facts in which Mr R is involved but as to his respective culpability with Mr Stark, that is an assessment which I must make and which is not, in my view, properly the subject of a disputed facts hearing. As I have said, it is only if the essential facts of Mr R ’s involvement are in dispute that I would regard a disputed facts hearing as appropriate, and indeed I would regard it as necessary since the extent of his involvement must be clearly established and must be a significant matter for me in sentencing.
“A D MacKenzie J”
Solicitors
Paino & Robinson, Upper Hutt, for the prisoner
Crown Solicitor, Wellington, for the Crown
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