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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Rys

Details

AGLC: R v Rys [2007] NZCA 360
Case: [2007] NZCA 360
Decision Date: 24 August 2007

CaseChat Overview and Summary

In R v Rys, the appellant applied 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. Mr Rys had pleaded 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. The Crown opposed the application for leave on the ground that the notice of appeal was filed some six months out of time. The Court of Appeal considered the merits of Mr Rys’ appeal before deciding whether the interests of justice required granting leave. The Court found that the adjusted starting point of 13½ years was too high, and that 11 years, while stern, was appropriate to recognise the totality of Mr Rys’ culpability. The Court also considered new evidence of Mr Rys’ medical condition, both mental and physical, which was unavailable to MacKenzie J. In the Court’s judgment, this evidence meant that the end sentence would be crushing for Mr Rys. The Court granted Mr Rys’ application for an extension of time to appeal, and quashed the sentence of 10½ years imprisonment imposed on the representative and separate charges of importing GBL and GHB. A sentence of seven-and-a-half years imprisonment was imposed on those charges, to be served concurrently with the sentence of four years imprisonment imposed on the charge of money laundering.

Orders