R v Urlich HC Palmerston North CRI 2010-054-1694

[2010] NZHC 2237

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2010-054-001694

THE QUEEN

v

NEIL HERBERT URLICH

v

Hearing:         13 December 2010

Counsel:         E McCaughan for the Crown

P S Coles for the prisoner

Judgment:      13 December 2010

SENTENCING NOTES OF CLIFFORD J

[1]      Mr Urlich, you appear for sentence having pleaded guilty to one count of importing the Class C controlled drug commonly known as BZP.

[2]      The District Court declined jurisdiction to sentence you so that the matter could be dealt with in this Court.

[3]      The maximum sentence for this offending is eight years’ imprisonment.

R V URLICH HC PMN CRI-2010-054-001694 13 December 2010

Facts

[4]      The undisputed factual basis upon which I am to sentence you is as follows. [5]      On  17  October  2009  New  Zealand  Customs  intercepted  a  package  at

Auckland Airport.  The package was addressed to a Ms Lyn Loo, of 40 South Street, Palmerston North.  The contents of the package were declared on a certification of safe transport of chemical goods as being N-glycene tert-butyl ester.   With their suspicions  perhaps  aroused  by  that  chemical  reference,  Customs  checked  the contents of the package, which had been posted from China on 20 August 2009.  The package contained two plastic bags of a white crystallised substance, each bag weighing approximately two kilograms. The white substance was BZP.

[6]      On 26 October 2009 Customs intercepted another package originating from China addressed to Ms Lyn Loo at the South Street address.  The contents that time were  declared  as  being  creatine.    The  package  was  examined.    It  contained  a snaplock bag containing approximately two kilograms of BZP.

[7]      On Tuesday 3 November 2009, assisted by the Police, Customs attempted a controlled delivery at the South Street address.  That attempt was unsuccessful as no- one was there at the time.

[8]      The next morning a call was placed to DHL Couriers requesting that the package be redelivered.  Shortly after that the package was redelivered to 40 South Street, Palmerston North and accepted there by your partner.  Your partner identified herself as Ms Loo.  That is not her name.  She signed her name as Ms Loo on the courier receipt prior to accepting it.

[9]      Police  subsequently  undertook  a  search  at  the  South  Street  address. Seventeen clear gelatine capsules containing what was subsequently determined to be BZP were found in a car.  Those capsules each contained approximately .4 of a gram of BZP.

[10]     Some six  months later you were spoken to by  the Police.   You made a statement.     In  that  statement  you  said  that  you,  and  not  your  partner,  were responsible for the importation from China of the two packages that had been intercepted by Customs, the first of which had been delivered to the South Street address. You also admitted, as Mr Coles has said against your own interests:

(a)      ordering  and  receiving  from  China  in  August  2009  two  other packages,  one  containing  a  kilogram  of  BZP  and  the  second containing two kilograms of BZP; and

(b)      ordering from China, but never receiving, two further kilograms of

BZP.

[11]     In that statement you explained that you had discovered you could obtain BZP cheaply from China on the internet, at a cost of approximately $100 a kilogram. You had ordered the BZP from two separate suppliers, one being the person who had supplied the four kilograms intercepted by Customs, the other being the person who had supplied the two earlier packages ordered and delivered, and the third which you had ordered but never received.

[12]     As you have heard this morning, you said you used your partner’s computer to access the internet, using the email address [email protected].  That is your partner’s email address.  You said that you used the name Lyn Loo because that was a name of a previous tenant of your partner. You said that you transferred the money to China via Western Union.  Finally, you said that you had never sold the BZP, that as far as you were aware your partner did not take the BZP and that all that BZP was for your own use.  You put the BZP into capsules to use.  That is why capsules had been found in your partner’s Ford car.   In general terms, you said that you had decided to stockpile the BZP once you found how easy it was to acquire.

[13]     In response to a direct question from the Police you denied selling BZP.  In terms of your description of the purposes for which you required BZP, namely your own use, you also at that time denied supplying it to others.

[14]    The purpose of this morning’s disputed hearing was because the Crown indicated it considered that commerciality may be involved.  Commerciality involves more than mere supply.   It is supply for value.   That is probably the best way of summarising it.  On that basis you were in Court this morning. You filed an affidavit in which you stated that, contrary to what you explained to the Police at the time, you were giving the BZP away to others but you were not selling it.  You also stated in your affidavit that the reason the Police did not find any more BZP when they searched 40 South Street was because you had taken it away.  You explained this morning that you stored it in a plastic container, I take it, down by the Manawatu River somewhere.

[15]     In  terms  of  other  relevant  evidence,  Mr  McCaughan  has  confirmed  that Police enquiries have, in general terms, confirmed your explanation to the Police at the time as to the amounts of money involved in purchasing the BZP via Western Union.  The Police have also searched relevant computers and email addresses and have no other evidence of commerciality against you.  Although they have concerns as to the amount of money in your partner’s bank account, they do not submit to me this morning that that amount of money raises adverse inferences against you.

[16]     Section 24 of the Sentencing Act 2002  provides that at  a disputed facts hearing aggravating facts have to be proved beyond reasonable doubt, and that other facts have to be proved on the balance of probabilities.

[17]     As I have already indicated, I do not find here that the Crown has established beyond reasonable doubt – that is so that I am sure – that you were supplying commercially, that is for value, any of the BZP that you have admitted importing. That is the basis, therefore, on which I will sentence you.

Sentencing process

[18]     In sentencing you I have to identify what is called the starting point sentence. That is the sentence that takes account of the nature of your offending itself, what you did.

[19]     I then have to consider aggravating and mitigating factors personal to you.

[20]     Finally, and in terms of the guilty plea, I have to take account of your guilty plea as the last step in this sentencing process.

[21]     I am guided by the principles of the Sentencing Act.   In my view these importantly  include  here  holding  you  accountable  for  and  denouncing  your offending, imposing a sentence that will be a deterrent both to you and to others, and also recognising the harm that can come from unlawful drugs.

The pre-sentence report

[22]     I have your pre-sentence report.  You are now 44 years old.  You have 32 previous convictions.  Most of those now date back some time and, as the Crown has accepted, I do not think they constitute an aggravating factor in your case.

[23]     I  also  have  the  letter  from  Mr  Baker  who  is  the  Chairman  of  the  te Runanganui o Taranaki Whanui.   He has described to the Court how you have recently reconnected with your Maori whanau and how that will provide a source of strength for you in the future and to help you address this offending.  I hope that it does.

Submissions

For the Police

[24]     Mr McCaughan, in terms of the submissions filed, noted the deliberate nature of this offending, the large amount of BZP involved and raised quite properly, and I think inevitably, the possible implication, given the amounts involved, that there was an element of commerciality here.  But I have already reached a view on that.

For the defence

[25]     For you, Mr Coles supported your submission that this was not commercial. He submitted, relative to other sentencings involving the Class C drug pseudoephedrine, that BZP does not have the connection with methamphetamine that pseudoephedrine does.  He submitted that a starting point sentence in the vicinity of three years would be appropriate.

Sentencing discussion

[26]     There is little guidance provided to courts sentencing for BZP importation. Other Class C drugs, such as cannabis and pseudoephedrine and sentences for the importation  of  those  drugs  or  their  supply,  can  be  expected  to  provide  some guidance.

[27]     As  regards  cannabis,  the  well-known  case  is  Terewi  and  that  deals  with offending involving cannabis  by identifying three categories of such offending.[1]

These were ranked  in  that  case  in  increasing seriousness  from  one to  three by reference to the factors of commerciality, scale and sophistication.   Category Two offending involves small-scale cultivation with a commercial purpose but limited actual sales, and generally attracts starting point sentences between two and four years.  Category Three offending involves large-scale growing with a considerable degree of sophistication and organisation, and generally attracts a starting point of four years or more.

[1] R v Terewi [1999] 3 NZLR 62

[28]     Pseudoephedrine offending has most notably involved the importation of that drug as a precursor to the manufacture of methamphetamine.   In that regard, importation of pseudoephedrine for that purpose is in my view a more serious type of offending than that involving the importation of BZP.

[29]     I  also  note  the  relevance  of  the  general  consideration  relating  to  the importation and supply of drugs, that a manufacturer is generally regarded by the courts as being more culpable than an importer, and an importer is more culpable than a supplier.

[30]     I  have  only  been  able  to  find  one  High  Court  decision  involving  BZP offending.  Justice Wild in the High Court imposed a sentence of two years and four months, down from a starting point of three years and six months, for offending involving some $26,000 of drugs, with clear commerciality in terms of sale for value.

[31]     Here, I think the most useful approach is to try to identify, relative to Terewi, the starting point band for your offending.

[32]     Category  Three  is  the  most  serious.     By  reason  of  my  finding  that commerciality was  not  involved,  I do  not  think  that  this  offending  falls  within Category Three.  The level of sophistication was relatively low.   The amount was large but  there was  also  no  actual  evidence of supply for value.    In  my view, therefore, the offending falls notionally within what is called Category Two, and would attract a starting point in the range of two to four years.  As you have already heard me say, I think the appropriate starting point here is three years and three months’ imprisonment.

[33]     I acknowledge your guilty plea.  I accept that the Court of Appeal’s decision in Hessell applies here,[2] notwithstanding the recent Supreme Court decision.  That is a technical issue Mr Urlich, but it means you get a full 33 per cent recognition for your guilty plea.

[2] R v Hessell [2009] NZCA 450.

[34]     On that basis you are sentenced to a term of imprisonment of two years and two months.

[35]     Thank you Mr Urlich, you may stand down.

“Clifford J”

Solicitors:   Crown Solicitor, Palmerston North for the Crown

P S Coles, 97 Broadway Avenue, Palmerston North for the prisoner