R v Slipkus HC Auckland CRI-2010-004-19597

[2011] NZHC 65

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-004-19597

CRI-2010-004-22321

THE QUEEN

v

ZENARARS SLIPKUS NERIJUS SLIUPAS

Hearing:         1 March 2011

Appearances: Mr B Tantrum and Ms Y Clarisse for Crown

Mr H Lawry for Mr Slipkus
Ms J Scott for Mr Sliupas

Judgment:      1 March 2011

SENTENCING REMARKS OF LANG J

R V SLIPKUS & SLIUPAS HC AK CRI-2010-004-19597 1 March 2011

[1]      Mr Sliupas and Mr Slipkus, you appear for sentence today having pleaded guilty in the District Court to a charge of importing the Class A drug, methamphetamine.   As  you  must  by now know,  the maximum  penalty for that offence is life imprisonment.  In New Zealand that would mean that you would serve a minimum of ten years imprisonment before being released.  If you lived in New Zealand you would then be subject to parole provisions for the rest of your life and you would be subject to recall to prison if you reoffended.  That is how seriously our country views the importation of a drug like methamphetamine.

Facts

[2]      You are both Lithuanian nationals.  You arrived in New Zealand by air from Bangkok on 24 September 2010.   It is clear that whilst you were in Bangkok you were recruited to bring an illegal substance to New Zealand.   I accept that you probably had no intention of coming to New Zealand until you arrived in Bangkok and were contacted there. This is shown by the fact that your tickers to New Zealand were bought in Bangkok a matter of days before you travelled here.

[3]      I accept, also, that in material terms you probably received little for what you agreed to do.  It may be, as you claim, that you received no more than a free trip to New Zealand and accommodation for four days whilst you were here.

[4]      Whatever your motivation, you both agreed to swallow packages containing what you knew to be an illegal substance.  In doing so you must have known that you were taking a risk of being punished severely if you were caught bringing the substance into New Zealand.

[5]      As it was, you attracted the attention of customs officials as soon as you arrived  at Auckland Airport.   A number  of factors  aroused  the attention  of the customs officers.   This caused them to require you to undergo a CAT scan.   This revealed the existence of the packages that you had both swallowed.

[6]      Mr Slipkas, you had a package containing what transpired to be 542.8 grams of methamphetamine.  Mr Sliupas, you had swallowed a package containing 329.8

grams of methamphetamine.   In total, therefore, you were both party to a plan to bring into New Zealand 872.6 grams of methamphetamine.

[7]      To your credit, you pleaded guilty at an early stage in the District Court and have accepted the inevitable consequence that you would be convicted on the charge of importing methamphetamine.

Sentencing Act 2002

[8]      In any case of importing a Class A drug on this scale, issues of deterrence and denunciation are to the forefront.  That is the only way in which the courts in this country can send the message that this country will not accept activity of that type.

Starting point

[9]      The leading authority in relation to the sentences to be imposed on those who import methamphetamine is the decision of our Court of Appeal in R v Fatu[1].  In that case the Court of Appeal identified bands of offending that would attract increasing starting points of imprisonment according to their seriousness.  Offending involving the importation of 500 grams of methamphetamine or more will attract sentences of

12 years to life imprisonment.

[1] [2006] 2 NZLR 72

[10]     In your case, you have individually imported approximately 500 grams each. As a result of your joint enterprise, however, you have imported a total of more than

870 grams.   Had you appeared for sentence individually, I would have selected a starting point of 12 years imprisonment.  Given the fact that you have provided each other with mutual assistance and support to bring in a larger amount of methamphetamine,  I  propose  to  adopt  a  starting  point  of  12  and  a  half  years

imprisonment.

Aggravating factors

[11]     You have not offended in this way before, so I do not propose to increase the starting point that I have identified on that ground.

Mitigating factors

[12]     I now need to consider the extent to which I should reduce the starting point that I have selected to reflect matters in respect of which I can give you credit.

[13]     Mr Slipkus, you are married and have a child who is ten years of age.  You told the probation officer that you have recently suffered from depression.  You say that you lost your own father when you were young, and you did not want that to happen to your child.  Unfortunately your actions mean that you will now inevitably be required to spend a significant amount of time away from your child as a result of the sentence that I am required to impose on you.

[14]     The most obvious mitigating factor is your guilty pleas, which came at an early stage.  In R v Hessell[2] our Supreme Court held that the maximum credit that could be given for a guilty plea is 25 per cent.  Generally speaking, the earlier the guilty plea the greater the discount that can be given.  The timing of the guilty plea is not, however, the only factor that the Court can consider.   It must also take into account all relevant circumstances, including the strength of the Crown case.  That

could well have resulted in your case in a reduction of less than 25 per cent because the evidence against you was overwhelming.

[2] [2010] NZSC 135

[15]   You have, however, saved the State the cost of a trial and you have acknowledged your responsibility for your offending at an early stage.  The Crown accepts that a discount of approximately 25 per cent is appropriate.   That is the

discount that I propose to apply in respect of your guilty pleas.

[16]     Your  counsel  have  both  submitted  that  you  will  suffer  more  than  other persons in your position by reason of the fact that you speak no, or little, English. This  will  undoubtedly  make  life  in  prison  more  difficult  for  you  than  would otherwise be the case.  As against that, however, you chose to deliberately import drugs into a foreign country, knowing that the consequences if you were caught would be severe.  You must have known that it could result in you spending time in prison in circumstances where you did not speak English.

[17]     Our Court of Appeal has emphasised that personal factors can be given little weight when offenders are sentenced in respect of significant drug-related activity.  I propose to give you such credit as I can, but I am not able to reduce the sentence greatly to reflect this factor.

[18]     I propose to reduce your sentence by three years and six months to reflect the factors that I have identified.  This means that the sentence to be imposed on you is one of nine years imprisonment.

Minimum term of imprisonment

[19]     Whenever   a   Court   sentences   an   offender   to   more   than   two   years imprisonment, it has the power under s 86 of the Sentencing Act 2002 to specify a minimum term of imprisonment that the offender must serve before being eligible to apply for parole.

[20]     The Crown says that principles of deterrence and denunciation in the present case mean that you should not be eligible to apply for parole until you have served one half of your sentence.

[21]     In R v Zhou[3]the Court of Appeal confirmed that in cases involving major drug dealing activity, the criteria for the imposition of a minimum term of imprisonment are usually likely to be satisfied.   That case, however, involved offenders who were involved in the distribution of drugs.  It did not relate to persons

fulfilling  the  role  of  couriers,  and  who  were  not  involved  in  the  planning  or

instigation of the offending.   Those who instigate and organise large scale importations of methamphetamine are obviously likely to be subject to an order that they serve a minimum term of imprisonment.    Likewise, extremely large importations may attract the same type of order.

[3] [2009] NZCA 365 at [18]

[22]     A survey of the authorities presented to me by the Crown suggests, however, that sentencing courts have not imposed minimum terms of imprisonment on offenders who have pleaded guilty to charges resulting from their roles as couriers or “mules”[4].  Having regard to that fact, I have decided not to impose a minimum term of imprisonment.

Sentence

[4] R v Araki HC Auckland CRI-2008-004-2758, 10 June 2008; R v Lau HC Auckland CRI-2008-092-

1296, 26 September 2009

[23]     On the charges to which you have pleaded guilty you are each sentenced to nine years imprisonment.

Lang J

Solicitors:
Crown Solicitor, Auckland

Public Defence Service, Auckland

Counsel:

Mr H Lawry, Auckland