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 to one of three years five months imprisonment. I indicated that you may be able to seek credit for other mitigating factors at sentence. My role now is to determine whether, and if so to what extent, the sentence should be further reduced to reflect additional mitigating factors.

Other mitigating factors

Time spent on EM bail

[8]    You spent 84 days on EM bail between 11 May and 29 July 2022. You breached the terms of your EM bail during that period on two occasions. The second occasion resulted in you being injured after shots were fired at you during an altercation. Obviously this was a significant breach and you were arrested and remained in custody thereafter.

[9]    The Court has the ability to apply a discount where an offender has spent a period on remand subject to restrictions of EM bail. However, I do not consider a remand of 84 days to be a lengthy or significant period. The alternative would have been for you to remain in prison. Furthermore, the Court is entitled to take into account the extent to which an offender has complied with the terms of his or her EM bail. The fact that you accumulated two breaches, one of them significant, within less than three months is obviously a significant factor. I do not propose to apply any discount to reflect the time you spent on EM bail.

3 At [8].

Section 27 report

[10]   Your counsel has tendered a report under s 27 of the Sentencing Act 2002. This reveals that in many respects you had a good upbringing until your parents separated when you were 11 years of age. During this period you showed sporting prowess in a number of fields and particularly rugby. There were also no reported issues in relation to your schooling. However, issues of violence arose after you began living with your father, because your father inflicted significant violence on you on a regular basis.

[11]   You also became involved in cannabis use at the age of 14 years and subsequently began using methamphetamine.

[12]   Your father died in 2018 and this was clearly a traumatic time for you. It appears to have coincided with an increase in drug use and significant problems within your relationship. This led to you receiving a sentence of imprisonment in 2019 for charges involving domestic violence. It is likely, in my view, that your involvement in the present offending began at a time when you were vulnerable to the approaches of others because of these factors. However I do not consider the issues raised in the s 27 report to establish a strong link between the present offending and those issues.

[13]   In addition, however, the report identifies the fact that you have strong support from your whanau and within your iwi. Although you have lost your job at the Port of Tauranga, it seems you will return to a highly supportive environment where you should be able to obtain meaningful employment. I am therefore satisfied your rehabilitative prospects are accordingly greater than is often seen in cases of this type. I propose to allow a further discount of eight months, or approximately 14 per cent, to reflect the factors identified in the s 27 report.

Sentence

[14]   Mr Swinton, on the charge to which you have entered a guilty plea you are sentenced to two years nine months imprisonment.

[15]Stand down.

Lang J

NOTE: PUBLICATIOIN OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS

PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE

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 3418

THE KING

v

MAURICE OLIVER SWINTON

Hearing:  14 December 2022

Appearances:              D Coulson for Crown C Harold for Defendant

Indication:                  14 December 2022

SENTENCE INDICATION OF LANG J

Solicitors:

Crown Solicitor, Rotorua

[1]                 Mr Swinton faces a charge of conspiring to import cocaine.4 His trial in this Court is scheduled to commence on 13 February 2023.

[2]                 Mr Swinton now seeks a sentence indication. This is an indication of the sentence he would receive if he entered a guilty plea in the near future. If he declines to accept the indication  and is  found guilty at  trial, the trial  Judge will sentence  Mr Swinton on the basis of the facts as the Judge finds them to be.

Background

[3]                 The sentence indication is given on the basis of an agreed summary of facts. This reveals that Mr Swinton was an experienced stevedore who worked at the Port of Tauranga. He was employed to work on the Mt Maunganui or eastern side of the harbour. He had no access to the container port on the western side of the harbour.

[4]                 Mr Swinton was approached by Mr Demant and Mr Waitai, 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 due to berth at the Port of Tauranga. They did not know exactly when the ship would arrive or where it would berth. They sought Mr Swinton’s assistance in the event that the ship berthed on the eastern side of the port. They also encouraged him to gain access to the container port on the other side of the harbour.

[5]                 As matters transpired, the shipment never arrived. There is no evidence that any cocaine was put on a ship for conveyance to New Zealand and no evidence of money changing hands. Furthermore, there is no evidence that Mr Swinton knew of the total quantity of cocaine that was likely to be involved in the shipment. However, some indication of the scale of the enterprise from his perspective can be gained from the fact that he told an associate during an intercepted cellphone call that he was going to be paid $250,000 and given a kilogram of the cocaine for the advice that he was giving and his assistance in retrieving the cocaine from the container once it was offloaded from the vessel. He said to his associate that his role was “just pick up, go to smoko, and go home”.

4      Misuse of Drugs Act 1975, s 6(2A): maximum sentence 14 years imprisonment.

Starting point

[6]                 The amount of cocaine that was to be imported was clearly very significant and would fall at the upper end of the scale in terms of seriousness. However, as I have already observed, there is no evidence the cocaine was ever loaded onto a ship that was destined to berth at the Port of Tauranga. It therefore cannot be said that the conspiracy was at an advanced stage.

[7]                 The greatest assistance in selecting the starting point is to be gained from the starting points selected for other persons involved in the same conspiracy. The leading figure in the conspiracy was Mr Demant. He accepted a sentence indication in which a starting point of  seven  years  imprisonment  was  selected  on  the  charge  that  Mr Swinton faces.5  In the same indication the Judge selected a starting  point for   Mr Waitai on the conspiracy charge of five years imprisonment.6

[8]                 I consider Mr Swinton’s role in the conspiracy was considerably less than that of either Mr Waitai or Mr Demant. He was a functionary at the lower level of the organisation whose role was to provide advice and practical assistance in retrieving the drugs from the container once it arrived at the Port. His role was extremely important because he provided the other conspirators with access to a restricted area of the port that they would not otherwise have had. However, he played no part in planning the importation and there is no suggestion that he was to receive a share in the profits. Rather, he was to be paid a fee, albeit a substantial one, and was to receive a considerable amount of cocaine for his efforts. His role would fall between that of “lesser” and “significant” identified in Zhang v R.7 I therefore select a starting point of four years threes months imprisonment.

Aggravating factors

[9]                 Mr Swinton has previous convictions but none of these are relevant for present purposes. There would therefore be no uplift to reflect previous convictions.

5      R v Demant [2022] NZHC 2954 at [44].

6 At [75].

7      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

Mitigating factors

[10]             The only mitigating factor for which I am prepared to give credit at this stage would be that for guilty plea. Mr Demant and Mr Waitai received a discount of 20 per cent for guilty pleas in the sentence indications given to them on 10 November 2022.8 Both counsel agree the same discount should be available to Mr Swinton. I would therefore apply a discount of ten months to reflect guilty plea. This would reduce the sentence to one of three years five months imprisonment.

[11]             Mr Swinton may be able to seek credit for additional mitigating factors at sentencing. For present purposes, however, the indicated sentence is one of three years five months imprisonment.

Time for acceptance

[12]             Ms Harold is to file and serve a memorandum no later than 5 pm on Wednesday 21 December 2022 advising whether Mr Swinton accepts the indication. If he does, he will be arraigned in the High Court at Rotorua on Friday 23 December 2022 at     9 am.

Lang J

8      R v Demant, above n 2, at [54] and [82].