R v Swinton - [2023] NZHC 216

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2021-070-1570

[2023] NZHC 216

THE KING

v

MAURICE OLIVER SWINTON

Hearing: 17 February 2023

Appearances:

D J McWilliam for Crown C Harold for Defendant

Judgment:

17 February 2023

SENTENCING REMARKS OF LANG J

Solicitors:
Crown Solicitor, Rotorua

R v MAURICE OLIVER SWINTON [2023] NZHC 216 [17 February 2023]

[1] Mr Swinton, you appear for sentence having pleaded guilty to a charge of conspiring to import cocaine.1 The maximum sentence for that offence is 14 years imprisonment.

[2] You entered your guilty plea after accepting a sentence indication I gave you on 14 December 2022.2 My sentence indication will be attached to, and form part of, these remarks.

Background

[3] I do not intend to fully repeat the factual background to which I referred in the sentence indication. In short, you were an experienced stevedore working at the Port of Tauranga. You were engaged to work on the eastern, or Mt Maunganui, side of the harbour. You had no access to the container terminal at the Port on the western side.

[4] In January 2021 you were approached by two of the leaders of a conspiracy to import cocaine from South America. They believed a shipment of 200 kilograms of cocaine was to arrive on a vessel that was shortly to berth at the Port of Tauranga. However, they did not know when the vessel would arrive or where it would berth. They therefore sought your assistance in the event that the vessel berthed on the eastern side of the Port where you worked. Your role would be to retrieve the drugs from the vessel after it arrived. You were also encouraged to gain access to the container terminal on the other side of the harbour. As it turns out, no shipment of cocaine ever arrived and there is no evidence the drugs were ever despatched from South America to New Zealand. It is therefore difficult to gauge how far down the track the plan to import cocaine into New Zealand ever proceeded.

[5] It is clear, however, that you believed you would receive a significant reward for your efforts in retrieving the drugs when they eventually arrived in New Zealand. The police intercepted a cellphone call in which you told an associate you would be paid the sum of $250,000 and given a kilogram of cocaine for your efforts. You told your associate that your role was to “just pick up, go to smoko and go home”.

1 Misuse of Drugs Act 1975, s 6(2A).
2 R v Swinton [2022] NZHC 3418.

Sentence

[6] I selected a starting point of four years three months imprisonment.3 I did not apply any uplift to reflect aggravating factors because, although you have previous convictions, none is relevant to the present offending.

[7] I was prepared to apply a discount of ten months, or 20 per cent, to reflect guilty pleas. This reduced the sentence…

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 Swinton

Details

AGLC: R v Swinton [2023] NZHC 216
Case: [2023] NZHC 216
Decision Date: 17 February 2023

CaseChat Overview and Summary

The case of R v Swinton involved the defendant, Maurice Oliver Swinton, who pleaded guilty to conspiring to import cocaine. The maximum penalty for this offence under the Misuse of Drugs Act 1975 is 14 years imprisonment. The High Court of New Zealand at Rotorua presided over the sentencing hearing and judgment, which took place on 17 February 2023. The defendant was represented by counsel, with D J McWilliam appearing for the Crown and C Harold for the defendant.

The legal issues before the court included determining an appropriate starting point for sentencing, considering any applicable aggravating or mitigating factors, and assessing the extent to which the sentence should be reduced based on additional mitigating factors. The court also had to decide whether to grant any discount for time spent on electronic monitoring (EM) bail and to evaluate the relevance of the defendant's background and personal circumstances as presented in a section 27 report.

The court selected a starting point of four years and three months imprisonment, taking into account the defendant's role in the conspiracy and comparing it to the roles of other conspirators. No uplift was applied for aggravating factors, as none of the defendant's previous convictions were relevant to the present offence. However, a discount of ten months, or 20%, was applied for the defendant's guilty plea, reducing the sentence to three years and five months imprisonment. The court further considered additional mitigating factors presented in the section 27 report, including the defendant's upbringing, exposure to violence, drug use, and support from his whanau and iwi. Based on these factors, the court allowed an additional discount of eight months, resulting in a final sentence of two years and nine months imprisonment.

Orders