R v S HC Auckland CRI 2004-092-137

[2005] NZHC 1719

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2004-092-137

THE QUEEN

v

[S]

Hearing:         19 April 2005

Appearances: KJ Glubb for the Crown

L Hughes for the Prisoner Judgment:    19 April 2005

SENTENCING NOTES OF RODNEY HANSEN J

Solicitors:           Meredith Connell, P O Box 2213, Auckland for the Crown

Public Defenders Service, P O Box 76-715, Manukau City for the Prisoner

R V [S]  HC AK CRI 2004-092-137 [19 April 2005]

[1]    Ms [S] , you appear before me for sentence having pleaded guilty to a charge of attempting to take a dangerous or offensive weapon onboard an aircraft. That is an offence under s 11(1) of the Aviation Crimes Act 1972. The maximum penalty for that offence is five years imprisonment.

The facts

[2]    The facts are that on the morning of 30 November 2004, you checked in on a Thai Airways flight to Thailand. As you passed through the security screening point prior to boarding, what appeared to be a knife was noticed in your carry-on luggage. Upon further inspection, the security officer located a butterfly knife inside a money box. A butterfly knife, as has been explained to me,  is a  folding knife in the nature of a pen knife. The security officer also located a scalpel blade at the bottom of a tin box which contained playing cards.

[3]    When you were questioned by the police at the time, you admitted that the luggage was yours. You said that your boyfriend had placed the knife in your bag  and that it was originally intended to go in as check-in luggage. You accepted that the tin of playing cards was yours but denied ownership of the scalpel.

Pre-sentence report

[4]    I have read the pre-sentence report, Ms [S] . It tells me that you are a 27-year-old Thai national and you have been resident in New Zealand for some ten years. Your boyfriend, whom you lived with for sometime, needed to return to Thailand at the end of last year to see his sick mother. It was planned that you would go back with him and I am told that because neither of you wished to leave your possessions in Auckland, you arranged basically to take everything back.

[5]    The report tells me that you have been working as a waitress in a Thai restaurant for six evenings a week and when you are not working you help your mother with work as a machinist.

[6]    The pre-sentence report and the explanation that has been given to  me  by  Ms Hughes this morning explains how it came to be that you carried these articles on to the aircraft. It appears that you had packed your bags to begin with and the  articles in question were originally in your suitcase. The scalpel was in a tin of playing cards. Apparently it had been kept by your boyfriend as a momento after it had been used to remove head stitches from an injury. However, your boyfriend decided to repack the bags because he thought they were too heavy and,  without your knowledge, these articles were moved from the suitcase into your carry-on luggage. You didn’t recheck them. You explain that if you  had been aware that  these potential weapons were there, you would have ensured that they went into bags that were carried in the hold of the aircraft. I note that there were some other potentially offensive weapons, including a Samurai sword, which were safely packed in luggage.

Sentencing principles

[7]    In considering sentence, Ms [S] , I am required by law to give recognition to particular goals and purposes of the sentencing laws. There is a need, in particular, to make you feel accountable and have a sense of responsibility for your actions, although I accept at once that this particular goal is largely unnecessary in your case because you have shown that you are deeply remorseful for what happened.

[8]    Of more significance in cases such as this are the need to protect the community and to deter others from this kind of conduct. As was said in a leading English authority, R v Burrows [2004] 2 CR App R (S) 89, the importance of the need to ensure security in the air cannot be exaggerated and the travelling public has its own part to play in ensuring that security. Thus appropriate and careful steps  must always be taken by those who travel by air to ensure that luggage does not contain any such article as, that which in that case was the subject of appeal, a firearm.

Sentence in this case

[9]    The law provides for a maximum sentence of five years imprisonment and thereby recognises the potential gravity of this sort of offending. However, despite the importance of the goals of protecting the public and deterring others, I agree with both counsel that a custodial sentence is not called for in this case. I accept that the person principally responsible for what happened was your boyfriend. There is no suggestion that the articles were put into the hand luggage for any sinister intent. I am satisfied that you were an innocent agent who acted in ignorance of what was there.

[10]   You have taken responsibility for what happened, nevertheless, accepting that in the end everyone must be responsible for what is in their bags. You have admitted your guilt at the earliest opportunity. You have, as I have said, showed  deep remorse. You are a person of good character. You have no previous convictions. I have read the references which Ms Hughes has submitted. You are someone who is much admired by your employer, your friends and members of the Buddhist community. All of the references attest to your honesty, your thoughtfulness and your generosity.

[11]   I accept also that you have already suffered considerably as a result of your apprehension. You were, of course, denied your trip to Thailand. You suffered the ignominy of arrest and a period in custody and you have been through the rigors of the Court process which, for someone such as yourself who is not totally familiar with such institutions in this country, I accept will have caused additional pain and distress to you.

Result

[12]   In the circumstances, I accept the submissions of both counsel that a short sentence of community service is an appropriate response which recognises the gravity of the offending but also gives appropriate weight to the extenuating circumstances in your case.

[13]   On that basis, Ms [S] , I sentence you to a period of 80 hours community work. That will require you to report to the community centre or work centre closest to you, probably in New Lynn.

[14]I make an order for the destruction of the two offending articles.