R v Rys

[2007] NZCA 360

IN THE COURT OF APPEAL OF NEW ZEALAND

CA373/06
[2007] NZCA 360

THE QUEEN

v

JUSTIN MATTHEW RYS

Hearing:21 June 2007

Court:O'Regan, Harrison and Heath JJ

Counsel:C W J Stevenson for Appellant

S B Edwards for Crown

Judgment:24 August 2007 at 11 am

JUDGMENT OF THE COURT

A        AN EXTENSION OF TIME TO APPEAL IS GRANTED.

B        The appeal against sentence is allowed. 

CThe concurrent sentences of 10½ years imprisonment imposed in the High Court on each of the 11 charges of importing a class B controlled drug are quashed.

DThe appellant is sentenced to concurrent terms of imprisonment of 7½ years on each of those counts, to be served concurrently with the sentence of four years imprisonment imposed in the High Court on the charge of money laundering, which remains unchanged.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1]       The appellant, Mr Justin Rys, applies for leave to appeal out of time against a sentence of 10½ years imprisonment imposed by MacKenzie J in the High Court at Wellington on 3 March 2006 following his plea of guilty to 10 charges of importing the Class B controlled drug gamma-butyrolactone (GBL), one charge of importing the Class B controlled drug gamma-hydroxybutyrate (GHB), and one charge of laundering money received from that offending. 

[2]       The Crown opposes the application for leave on the ground that the notice of appeal was filed some six months out of time; it says there are no special features particular to this case which outweigh the powerful consideration of society’s interest in the finality of decisions and require leave to be given in the interests of justice: R v Knight [1998] 1 NZLR 583 (CA) at 587–589. In deciding whether or not the interests of justice require granting leave, we shall first consider the merits of Mr Rys’ appeal.

High Court

[3]       Between October 2003 and December 2004 Mr Rys participated in importing 98 separate packages containing a total of 159.3 litres of GBL.  Police and customs officers intercepted a further 47.7 litres of the substance before the importation was complete.  Mr Rys was charged with one representative count for 89 importations and with nine separate counts for the same offence; six in September 2004 and three in December 2004.  The separate charge of importing GHB arose from an importation in December 2004, said to be the largest for this drug into New Zealand for which an offender had appeared for sentence.

[4]       MacKenzie J’s sentencing notes described the process adopted by Mr Rys as follows:

[3]       The method which you used involved your arranging for an associate in Romania to obtain the drug and send it to you through international courier companies.  The consignments were sent initially from Romania, and later from Moldova, to a number of fictitious people at a number of different addresses.  False packaging was used to conceal the drugs and to avoid detection.  The GBL was in liquid form and was predominantly concealed in bottles of wine or cans labelled as cans of vegetables.  The GHB was in powder form and was concealed in plastic tubs described as containing food supplements.  You were able to track the progress of each of the deliveries by using the tracking system of the courier company.  You could track the packages on the company’s website.  This enabled you to closely monitor the progress of each package, and you accessed the websites on many occasions for that purpose.  When each package reached the courier depot in New Zealand, you or an associate would uplift the package using the designated name for that consignment.  You made payment to the Romanian supplier by way of telegraphic transfers of funds, a method which made detection of the transfers difficult.

[5]       There was a dispute over the monetary value of the drugs.  The Crown estimated the street value of the GBL actually imported at between $800,000 and $1.6 million, and of the intercepted GBL at between $238,000 and $477,000.  It estimated the value of the GHB at between $45,000 and $90,000. 

[6]       The Crown’s estimates were based on a street value of between $5 and $10 per millilitre for the GBL.  Mr Rys’ counsel in the High Court submitted that a base figure of $3 per millilitre was more accurate.  MacKenzie J placed primary reliance on the quantity rather than the value for sentencing purposes and for assessing culpability: R v Fatu [2006] 2 NZLR 72 (CA). Whatever is the case, even on his counsel’s estimate, the value of the GBL imported by Mr Rys was substantial, to a minimum of about $600,000.

[7]       The Judge summarised the effect of the drugs as follows:

[7]       … They are commonly known as Fantasy or Rinse.  The Crown has produced material to show their harmful nature.  They are central nervous system depressants akin to tranquillisers, alcohol and opiates.  When ingested, GBL converts to GHB in the body and produces the same effects.  Their effects are such that they have become a drug of choice as recreational drugs as at the right dosage they induce feelings of euphoria, relaxation and reduction of inhibitions.  Higher doses can induce anaesthetic effects, memory impairment, vomiting, jerking of the limbs and seizures.  The drugs may be used as a date rape drug, by spiking drinks with extra strong doses which may cause victims to fall into a deep sleep that resembles a comatose state, with loss of memory on awakening.  The physical effects include loss of balance, reduced motor control, slower and deeper respiration, reduced heart rate, slower reaction time, slurred speech and nausea, vomiting, seizure, amnesia, respiratory distress and a coma-like deep sleep, depending on the dosage and the individual.  Research has shown that withdrawal from addiction is more painful and more dangerous than withdrawal from heroin.  Withdrawal problems may include delirium, seizures and hallucinations.  That summary of the effects of this substance demonstrates the harm which is done to the community by this drug by the addictions which arise from the activities of importers such as yourself, and the need to denounce and deter dealing in these drugs. 

[8]       The money laundering charge arose from Mr Rys’ arrangement of six separate deposits totalling $85,386 into the bank account of an associate between 3 October 2003 and 22 December 2004, knowing these moneys were the proceeds of specified drug offences.  Mr Rys admitted that in this way he was intending to conceal the proceeds of his drug dealing activities. 

[9]       MacKenzie J applied the tariff judgment in R v Wallace [1999] 3 NZLR 159 where this Court identified a starting point of between eight and 14 years for those who fall into the highest of the three sentencing bands for dealing in a Class B drug. He was satisfied that the scale of Mr Rys’ activities placed him towards the upper end of the highest band, involving commercial activity on a major scale. He relied upon the large quantities of drug involved, the high level of commercialism, and the sophistication of the operation and the methods used: at [8].

[10]     MacKenzie J undertook a comparative assessment of Mr Rys’ culpability with that of his co-offender, Mr Robert Stark.  Mr Stark had pleaded guilty to 10 charges of importing GBL, two charges of conspiring to import or supply GBL, and one charge of possessing GBL for supply.  In contrast to Mr Rys, Mr Stark entered early pleas of guilty.  He was sentenced by Wild J on 8 April 2005 to a term of four years imprisonment.  The Judge had discounted the starting point of eight years by 50% or four years to allow for Mr Stark’s promise to give evidence against Mr Rys. 

[11]     MacKenzie J sentenced Mr Rys on 3 March 2006.  Subsequently this Court quashed Mr Stark’s sentence and substituted one of three-and-a-half years imprisonment: R v Stark CA104/06 31 July 2006.  It allowed Mr Stark a further 10% reduction for post-sentence assistance to the authorities by fulfilling his promise to give evidence at the preliminary hearing into Mr Rys’ charges in the District Court on 28 and 29 July 2005.  It was not until 13 February 2006, almost seven months after committal and shortly before his trial was scheduled to commence, that Mr Rys entered his guilty pleas.

[12]     MacKenzie J noted that, when sentencing Mr Stark, Wild J had assessed his culpability as being about 70% of Mr Rys’ blameworthiness.  Wild J fixed a starting point of eight years.  On a comparative assessment, MacKenzie J converted that figure into a starting point of just under 11½ years for Mr Rys’ GBL offending.

[13]     But the Judge was independently satisfied that a starting point of 11 years was justified on this basis:

[11]     So that the comparison with Mr Stark’s position is clear, I first consider what the appropriate starting point would be had the GBL offending stood alone, because that was Mr Stark’s position.  Considering that offending alone, I would fix a starting point of 11 years.  That is close to the implicit starting point which would be derived from Wild J’s starting point.  However, I reach that conclusion by looking at the matter quite separately and not by any direct comparison.  I use that comparison only as a check on the figure which I had assessed.  Mr Stark was charged only in relation to the GBL and did not face the additional charge which you faced relating to GHB and money laundering.  Those must be taken into account in fixing a starting point having regard to the totality of the offending.  I consider that those require an increase of one and a half years from the starting point for the GBL alone.

[14]     MacKenzie J increased the adjusted starting point of 12½ years upwards by a further year to take account of Mr Rys’ continued offending while on bail.  He had been arrested on 19 February 2004 and charged with seven counts of importing prohibited medicines in the form of anabolic steroids.  He was bailed in the District Court until May 2004 when he pleaded guilty to a representative charge and received a six month suspended sentence.  The Judge noted that throughout this period, and while serving his suspended sentence, Mr Rys conducted a large number of the subject importations.  He also took account of Mr Rys’ previous convictions which he did not specify.

[15]     MacKenzie J then considered mitigation.  He noted but did not allow a specific reduction for the factors of Mr Rys’ addiction to GBL before it was classified as a Class B drug in May 2002; that Mr Rys began to take the drug for physical enhancement reasons and to further his body building career, and not for purely recreational purposes; and that Mr Rys did not learn of measures taken by the authorities to persuade users against consumption of the drug.  The Judge said that Mr Rys’ offending went well beyond feeding his own addiction; he was importing for supply to others and commercial purposes. 

[16]     MacKenzie J also referred to Mr Rys’ state of health, which has assumed considerable importance on appeal, in these terms:

[15]     Another factor which I take into account are the concerns which have been expressed concerning your health.  The material before me indicates that your use of substances to assist you in your body-building career has been such as to create serious risks to your health which, if not managed appropriately within the prison system, could have serious effects.  I direct that the material available in this regard is to be drawn to the attention of the prison authorities so that they may take it into account.  It is not, however, a matter which can be reflected in any explicit reduction in the sentence.

[17] MacKenzie J made the principal reduction for Mr Rys’ guilty pleas, noting that they came at a late stage. He allowed a discount of three years or 20%, leaving an effective sentence of 10½ years: at [17].

[18]     The Judge also ordered forfeiture of the proceeds of the money laundering charge and destruction of various property involved in the offending: at [18]. However, he declined to order a minimum term of imprisonment, saying this:

[20]     I take a number of factors into account in reaching that conclusion and which lead me to a conclusion different from that which the Crown asks me to adopt in the light of the seriousness of the offending as the Crown outlines it.  The first factor I take into account is that this is your first conviction for offending of this seriousness.  While the offending extended over a long period, you have no history of previous serious offending of this nature or otherwise, and have not previously served a term of imprisonment.  I am therefore unable to conclude that prison with the normal parole is unlikely to be a sufficient deterrent.  I also take into account that this is the first conviction for major importing of this particular drug.  I do not consider that it can be said that the prevalence of offending with regard to this drug is such as to make a minimum period appropriate.  Furthermore, I have had regard to the other factors to which your counsel has referred, and which I have mentioned earlier, concerning your own involvement with this drug.  While those cannot lead to a reduction in the sentence, they are, in my view, relevant to whether there is a need for a minimum period.  In all the circumstances, I am not satisfied that the statutory pre-conditions to the imposition of a minimum period are met, and I decline to impose a minimum period.

Appeal

[19]     Mr Christopher Stevenson, who appeared for Mr Rys in this Court but not in the High Court, challenges the methodology adopted by MacKenzie J in fixing a sentence of 10½ years imprisonment.  First, he submits that the adjusted starting point was too high and that the sentence was disparate with the term of imprisonment imposed on Mr Stark.  Second, he relies on medical evidence which was not available to MacKenzie J.  It will be appropriate for us to consider the appeal on both grounds.

(1)      Starting Point

[20]     Mr Stevenson submits that the Judge’s adjusted starting point of 13½ years was excessive.  He notes that the maximum penalty on conviction on one charge is 14 years imprisonment.  He submits that MacKenzie J erred in concluding that Mr Rys’ case fell into the third or highest Wallace tariff category of offending on a major scale.  He says that an offender could only fall into that category, attracting a starting point of between eight and 14 years, if the Crown had established the highest level of commerciality; that is, offending involving massive quantities or prolonged dealing: R v Atkinson CA546/99 19 April 2000 at [22].  He says that this case has closer parallels with R v Watkins CA354/97 26 February 1998, noted in Wallace at [29], where a sentence of seven years imprisonment on one charge of importing 5,200 tablets of Ecstasy containing 322 g of MDMA was upheld.

[21]     Mr Stevenson focuses particularly on the facts of Wallace.  He points to Mr Wallace’s unexplained income of over $1m (the sentencing Judge was satisfied that far more than $1.3m had passed through Mr Wallace’s hands); his expenditure of substantial amounts of money on vehicles, holidays and property acquisitions; his participation in manufacturing, which is recognised as being more serious than importing:  Fatu at [43]; and the imposition of a term of imprisonment of 10 years.

[22]     By comparison, Mr Stevenson says, Mr Rys’ operation was amateurish in scale.  He and Mr Stark were using a considerable amount of the drugs themselves; each consumed about 15 litres of the drugs (a total of 30) in the 15 month period over which the offending occurred.  He also notes that about 47.7 litres was intercepted.  Accordingly, only 95 litres was available for sale, equating to receipt of $290,000 between the two accused.  Also, Mr Stevenson submits that Mr Rys did not have huge amounts of unexplained income; the sum of $88,000 representing the money laundering charge was not great, and may correctly represent the financial benefit obtained by Mr Rys.  He says this was substantial but not massive commercial dealing.  Mr Stevenson submits that a starting point of eight years was appropriate.

[23]     We accept that Mr Wallace ran a substantial methamphetamine manufacturing operation: see Wallace at [8]–[11]. Ms Edwards for the Crown accepts that Mr Wallace’s offending was on a considerably greater scale than Mr Rys’. But this Court apparently accepted that a starting point of between 12 and 14 years was appropriate (the sentencing Judge had not carried out this exercise), with a reduction for a late plea of guilty: Wallace at [36]. And also the Court did not consider there was a basis for distinguishing between manufacturers and importers: at [25](4), presumably because, as Ms Edwards submits, the dangers associated with the manufacturing process do not apply directly to offending involving GBL or GHB: compare Fatu at [23].

[24]     In the area of major drug dealing the circumstances are all important once the sentencing principles are established.  It is difficult to embark upon a comparative exercise unless by coincidence the facts of two cases are closely related.  The decision of this Court in R v Palmer [2007] NZCA 167 is of comparative value and was the subject of extensive submissions from both counsel. In that case the Solicitor-General appealed against a sentence imposed in the District Court of two years imprisonment, with leave to apply for home detention, and a fine of $100,000 following pleas of guilty to two representative charges of importing GBL and supplying GBL, and one charge of possession of GBL for supply. The sentencing Judge had adopted a starting point of five years imprisonment, but allowed a 60% discount for mitigating factors. This Court allowed the Solicitor-General’s appeal, and substituted sentences of three years imprisonment for each charge. The fine of $100,000 remained unchanged.

[25]     In Palmer’s case, like Mr Rys, the appellant had been a user of GBL for some years prior to 2002 when it was classified as a Class B controlled drug.  In mid 2004 customs officers discovered that a fictitious company based in Israel had sold 22 consignments of GBL to Mr Palmer in New Zealand.  The police executed a search warrant of Mr Palmer’s home following the interception of a suspicious package in October 2004 containing 4.42 litres of GBL.  They found a litre bottle of GBL, a safe containing 20 tabs of Ecstasy and $48,000 in cash, and a laptop computer.  Further inquiries established that over a seven month period Mr Palmer had received a total of 125 litres of GBL in the 22 consignments.  A financial analysis of Mr Palmer’s records show that he had received at least $100,000 of unexplained income during the relevant period. 

[26]     The Court discussed the starting point in Palmer briefly in these terms: at [33]:

Starting points reflect the Court’s assessment of the degree of culpability which attaches to the offence.  Bearing in mind that a minimum of $500,000 worth of a Class B drug was imported over a period of more than nine months, with distribution to known and unknown persons providing an income stream in excess of $100,000, the offence called for a minimum of seven years’ imprisonment as a starting point even if the operation lacked sophistication.

[27]     On analysis, the differences in the starting points between the two cases can be explained on these grounds:

(1)Mr Rys was involved in importing over 200 litres of GBL including the intercepted consignments of 47.7 litres; Mr Palmer received a total of 125 litres;

(2)Mr Rys undertook 98 separate importations (including the nine discrete importations justifying the nine separate counts), whereas Mr Palmer imported on 22 occasions;

(3)Mr Rys’ offending occurred over a period of 15 months whereas Mr Palmer offended over a seven month period;

(4)Mr Rys also imported a large amount of GHB in the December 2004 consignment.

The money laundering charge against Mr Rys representing $85,386 would equate with the $100,000 of unexplained income in Mr Palmer’s hands.

[28]     Additionally, the Solicitor-General was the appellant in Palmer; an appellate Court traditionally adopts a conservative approach to Crown appeals, reflected in the adoption of a minimum starting point of seven years imprisonment.  Also, as Ms Edwards emphasises, the Court in Palmer noted the sentence was “markedly less severe than otherwise would have been justified” as a result of process errors for which Mr Palmer was not responsible: at [55]. But for the facts that the Solicitor-General was the appellant and that serious process errors occurred, we infer that the Court in Palmer would have sanctioned a starting point in the vicinity of nine years for the GBL offending.

[29]     The objective of sentencing in this area is to identify a starting point that adequately reflects society’s condemnation of the circumstances in which an individual traffics in a controlled drug for a prolonged period and for substantial profit.  In our judgment the starting point of 11 years imprisonment adopted by MacKenzie J for the GBL charges as the lead or index offences is at the top of the permissible range but not of itself manifestly excessive.  It gives proper weight to the harm caused by both GBL and GHB, as the Judge emphasised, and the need to denounce and deter.  It also recognises Mr Rys’ careful planning and premeditation, reflected in the sophisticated and profitable nature of his activities.

[30]     However, we agree with Mr Stevenson that the adjusted starting point of 13½ years was too high, even when the totality of Mr Rys’ offending and the aggravating features are taken into account.  In principle, the Judge was entitled to increase the base starting point to recognise the aggravating features of, first, the GHB and money laundering charges and, second, offending while on bail.  The latter factor is expressly recognised as aggravating, and a sentencing Judge must take it into account ‘… to the extent that [it is] applicable in a case …’: s 9(1)(a) Sentencing Act 2002.

[31]     In this case, though, treatment of offending while on bail as a discrete factor justifying an increase of one year is excessive.  The charges which Mr Rys faced, and upon which he received a non-custodial sentence, were relatively minor.  It was not a case where Mr Rys continued to offend in the same manner as arising on those original charges: compare R v Whiunui CA212/05 9 November 2005.  The deterrent requirement, implicit in adjusting a sentence upward for offending on bail, was low.  There is force in Mr Stevenson’s submission that the de facto effect of the adjustment was to impose a term of one year’s imprisonment on Mr Rys for offences for which he was already punished, and at a much lower level.

[32]     While MacKenzie J referred to the totality principle at the first stage of an upward adjustment of Mr Rys’ sentence to take account of the GHB and money laundering offending, he did not do so at the second stage of recognising the factor of offending while on bail.  He adopted a strictly cumulative process at both stages which had the effect of rendering the final starting point manifestly excessive.  It meant that the effect of the end sentence would be crushing for Mr Rys. 

[33]     This conclusion is supported by reference back to Wallace.  Pleas of guilty were entered in both cases.  Yet the end sentence here was slightly higher (10½ years as against 10 years) when the scale of offending in Wallace was in a much more serious league.

[34]     Accordingly, we are satisfied that the Judge erred in adopting an adjusted starting point of 13½ years, and that 11 years, while stern, was appropriate to recognise the totality of Mr Rys’ culpability.  We add that this conclusion also answers Mr Stevenson’s separate submission of a disparity in the sentences imposed on Messrs Rys and Stark. 

[35]     Mr Stevenson could not and does not challenge the discount of 20% given by MacKenzie J for Mr Rys’ pleas of guilty; the discount was generous, given that the pleas came at a late stage.  However, we will defer consideration of the pleas until completion of our review of the new evidence, which now follows.

(2)      New Evidence

[36]     Since sentencing, Mr Stevenson has obtained new evidence about Mr Rys’ medical condition, both mental and physical, which was unavailable to MacKenzie J.  The primary evidence is from a psychiatrist, Dr Tony Marks, who has prepared a comprehensive report.  In Dr Marks’ opinion, which the Crown does not challenge, Mr Rys suffers and was suffering at the time of the offending from a mental disorder known as body dysmorphic disorder, colloquially known as megarexia.  It is described by Dr Marks as:

A chronic preoccupation with the belief that one is not sufficiently muscular.  This preoccupation results in marked subjective distress, serious impairment in social and occupational functioning and, for some, use of anabolic-androgenic steroids to facilitate muscle growth, risking adverse medical and psychiatric consequences.

[37]     Dr Marks is satisfied that Mr Rys’ obsession with his body form and body building has resulted in a severely distorted judgment about his own appearance.  Mr Rys maintains a delusion that he is small and tiny, when physical appearances suggest the contrary.  It is relevant that Mr Rys’ disorder is longstanding and is manifested by his obsession with the drug.  It pre-existed GBL’s categorisation as a controlled drug in 2002.  By then Mr Rys was himself addicted to the drug, which he consumed before exercising for the purposes of a feeling of enhanced wellbeing and reduction of pain. 

[38]     Dr Marks concludes:

I consider that if Justin did not have Body Dysmorphic Disorder he would almost certainly not have used GHB and GBL, he would not have become dependent and possibly addicted to them and he would not have been in trouble with the law because of GHB and GBL.

I consider that Mr Rys’ severe disorder of muscle dysmorphia is materially and largely responsible for his abuse of many substances.  This very much applies to his use and the dependence on GHB and GBL.

I consider that his offending was materially and to a large extent the result of his untreated and unrecognised muscle dysmorphia.

[39]     Based on this evidence Mr Stevenson submits that Mr Rys’ mental disorder has a significantly mitigating effect.  He says that it falls into the class of an illness which reduces an offender’s ability to appreciate the seriousness or culpability of his actions, rendering less appropriate or more subjectively punitive a sentence of imprisonment: R v Nilsson CA552/99 27 July 2000 at [10].  While Mr Stevenson accepts that deterrence is the primary principle for sentencing for importation of drugs, he submits its effect is weakened where the offender was suffering from a mental disorder when committing the crimes.

[40]     The second evidence is from a cardiologist, Professor Stewart Mann.  In a report prepared on Mr Rys on 5 March 2007 he says this:

As I mentioned, Justin presented to me in May 2002, with shortness of breath that was found to be due to some heart failure.  Investigation showed that his heart was enlarged and contracting poorly.  He therefore has a condition known as ‘cardiomyopathy’.

In Justin’s case, it was quite clear that this cardiomyopathy was almost certainly due to his use of anabolic steroids and perhaps other drugs to enhance his body-building.  Other causes of the condition include familial conditions and gross excessive alcohol intake, but I do not believe these are relevant in his case. Many cases are obscure, but they much more usually present later in life.

Certainly, someone with the degree of impairment that Justin has with his heart would normally be regarded as having a limited prognosis, although it is extremely difficult to estimate life expectancy.  His condition is currently reasonably stable from this point of view and he is not needing regular dosing with the sort of medication, which indicate that the heart is struggling to provide minimum necessary output.  If there were no reversibility and indeed, progressive worsening of his condition, then certainly a life expectancy of five to ten years would be a reasonable estimate.  However, there are both short-term risks and a chance of much longer life.  Certainly, there are recorded cases (some high profile ones) of sudden death occurring in athletes who have probably abused anabolic steroids.  However, his access to these drugs may now be completely restricted and the chances of recovery in this condition are not at all known.

In summary, his health is certainly impaired considerably by the state of his heart muscle and there are risks of gradual or sudden decline at any time.  However, there is also a chance of recovery in the absence of further provocation from the use of anabolic steroids.

[Our emphasis]

[41]     Mr Stevenson submits that the report is to the effect that Mr Rys may die in prison and will probably only live for five to 10 years.

[42]     The third piece of new evidence is a report from a drug counsellor, Mr Roger Brooking.  He provides a detailed summary of Mr Rys’ drug use and, in particular, a review of his time in prison.  He refers to episodes of ill health, and the difficulties of appropriately treating him in the prison environment.  He identifies 139 separate entries made by medical staff at Rimutaka Prison in 2006 including elevated cholesterol levels, breathlessness and dietary problems. 

[43]     The prison physician, Dr Boyd Blake, notes that Mr Rys is receiving medication as recommended by his specialists but the prison is unable to provide him with a tailored diet.  Dr Blake notes, though, that while Mr Rys’ long-term prognosis is poor, his daily state of health has not given cause for more than minor concerns.

[44]     It is plain that MacKenzie J had some knowledge of Mr Rys’ addiction and ill health. He acknowledged Mr Rys’ addiction, and its link to his criminality, but made no allowance for it; he was influenced by the fact that the scale of Mr Rys’ importation went far beyond that required to feed his addiction: at [14]. And he was aware that Mr Rys’ drug addiction had ‘creat[ed] serious risks to [his] health which, if not managed appropriately within the prison system, could have serious effects’: at [15]. The Judge was, however, plainly of the view that Mr Rys’ personal circumstances carried little weight given that the principle of deterrence must take priority.

[45]     In our judgment the additional medical evidence is directly relevant.  Ms Edwards properly acknowledges that this statement from Nilsson at [10] correctly reflects the appropriate sentencing principle:

A mental disorder falling short of exculpating insanity may nevertheless be capable of mitigating a sentence either because it moderates the culpability or because it renders less appropriate or more subjectively punitive a sentence of imprisonment, or for a combination of those reasons.

To the same effect is R v Tuia CA312/02 27 November 2002: at [15]:

The ‘lesser degree of moral culpability’ follows from the principle that any general criminal liability is founded on conduct performed rationally by one who exercises a willed choice to offend…

[46]     Ms Edwards submits that a difficulty in this case lies in distinguishing between the respective impacts on Mr Rys’ offending of his mental disorder and of his addiction to GHB and GBL.  They may, as she says, be inextricably linked or at least circular in nature, and Mr Rys may well have been predisposed to drug abuse and dependence with or without consideration of his body dysmorphic disorder. 

[47]     We are satisfied that Dr Marks’ evidence answers this submission.  He identifies Mr Rys’ disorder as the catalyst for his addiction.  Whether or not Mr Rys suffered a predisposition to drug abuse is problematic, and ultimately immaterial.  Dr Marks’ evidence satisfies us that Mr Rys’ medically diagnosed obsession operated to moderate his culpability.  It distorted his processes of reasoning in the same manner as other recognised disorders; its effect is manifested in his high level of consumption of the drugs which he imported.  The end sentence must properly allow for this mitigating factor, which we emphasise was unknown to MacKenzie J.

[48]     We give less weight to Mr Rys’ heart condition.  Professor Mann’s poor prognosis is qualified.  There is no doubt that Mr Rys is suffering from cardiomyopathy.  But Professor Mann notes that he first presented with the symptoms of that condition over five years ago, and there is no evidence of deterioration in the interim.  Also his condition is plainly caused by his abuse of anabolic steroids and related drugs.  Given that Mr Rys’ condition has stabilised, presumably because he does not have access to drugs in the prison environment, we infer that the risk of a significantly shortened life span is not as extreme as Mr Stevenson suggests.  Indeed, the prison environment, where Mr Rys should not have access to steroids, may assist in his recovery.  This factor is neutral.

Application for Leave

[49]     Against this background we return to Mr Rys’ application for leave to appeal out of time: s 388 of the Crimes Act 1961.  In an affidavit sworn in support, Mr Rys deposes that he advised his previous counsel of his wish to appeal against the sentence but his counsel was reluctant to comply.  Then, while in prison, he was distracted by health problems.  Once he recovered Mr Rys sought advice from alternative counsel.  It was some time before he was able to brief Mr Stevenson formally.  He deposed to his unfamiliarity with the criminal justice system and with the appeal process. 

[50]     In view of the medical evidence now available about Mr Rys’ condition, and the absence of a challenge by the Crown to the veracity of his explanation, we are satisfied that, given the merits of his substantive appeal, Mr Rys’ application should be allowed.  In this case we are satisfied that society’s interests in the finality of decisions should give way to the interests of justice where the circumstances justify a significant reduction in the sentence imposed.

Result

[51]     Mr Rys’s application for an extension of time to appeal is granted, and his sentence of 10½ years imprisonment on the representative and separate charges of importing GBL and GHB are quashed. A sentence of seven-and-a-half years imprisonment is imposed on those charges (which represents an appropriate allowance for the combined factors of Mr Rys’ medical disorder and his guilty pleas).  The sentences are to be served concurrently with the sentence of four years imprisonment imposed on the charge of money laundering.

[52]     We wish to express our appreciation to Mr Stevenson and Ms Edwards for the quality of their submissions, both written and oral.

Solicitors:

Crown Law Office, Wellington