R v Wachnicki HC Auckland CRI-2011-004-015106

[2011] NZHC 1938

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-004-015106

THE QUEEN

v

MIROSLAW ADAM WACHNICKI

Hearing:         27 September 2011

Counsel:         S Waalkens for the Crown

J Scott for the prisoner

Judgment:      27 September 2011

SENTENCING REMARKS OF ASHER J

Solicitors/Counsel:

Crown Solicitor, DX CP24063, Auckland 1140. Email:  [email protected]

Public Defence Service, PO Box 90243, Auckland Mail Centre 1142. Email:  [email protected]

R V WACHNICKI HC AK CRI-2011-004-015106 27 September 2011

Introduction

[1]      Mr  Wachnicki  on  Wednesday,  8  June  2011  you  arrived  at  Auckland

International  Airport  on  a  flight  from  Bangkok.    In  your  digestive  tract  was

280.9 grams of methamphetamine in small pellets.  The street value of that amount of methamphetamine is somewhere between $168,540 and $280,900.  You were to be paid US$3,000 for this.

[2]      You appear to have lied about the reason for your visit to New Zealand.  You said it was to see the scenery and architecture and to look for a relative.  However, Customs staff were suspicious.  You consented to a CT scan and that revealed the pellets.

[3]      You did not deny your wrongdoing.   You said that the reason you were involved in importing methamphetamine in this way into New Zealand was that you had been persuaded to do so by people you had met in Thailand.  You mentioned some names but it seems you gave no detail that could assist the authorities in finding other offenders.  What is clear is that you agreed to be a mule, a courier, for these drugs and but for the vigilance of our Customs authorities you would have succeeded in importing into New Zealand this very significant amount of methamphetamine. You pleaded guilty and it is now my task to sentence you.

[4]      Methamphetamine  is  a  drug  that  causes  severe  behavioural  and  health problems for its users.   Through its effects on users it costs the New Zealand community very greatly and so there is a need to denounce what you have done and to deter other people from doing it.

[5]    The  maximum  sentence  for  importing  methamphetamine  is  life imprisonment, the most severe penalty available in New Zealand.   This is an indication of how seriously our community regards this offending.   The way in which sentencing for the offending should be approached is set out in the decision of

R v Fatu.[1]     That decision sets out four sentencing bands for cases involving the

[1] R v Fatu [2006] 2 NZLR 72 (CA).

importation of methamphetamine.   Given the undisputed amount that you had in

your body when you arrived in New Zealand you fall into band three, which is for the importing of large commercial quantities of between 250 and 500 grams.  The range of penalty varies from nine to 13 years’ imprisonment.  I have to decide where the starting point for your offending should be in that range.   I therefore fix this starting point without reference to your personal circumstances, which I consider at the second stage of the sentencing process.

Starting point

[6]      So where does your offending fit in terms of its culpability?   Given the amount involved, in the ordinary course of events, something more than nine years as a starting point would be warranted.  However, it is clear that you were acting as a courier,  a mule for this  methamphetamine.   The role played  by the offender is relevant in fixing the correct point within a band, and your role was at a low level, possibly the lowest level.  There presumably were middlemen involved in recruiting and  supplying  you,  and  organisers  and  principals  yet  above them.    Given  your comparatively lesser role I consider that the starting point should be at the lowest of the available range.

[7]      The Crown suggests nine to 10 years.  Your counsel proposes nine years.  I

fix the starting point at nine years’ imprisonment.

Personal factors

[8]      I now turn to factors relating to you personally.  These can involve an uplift if you have a relevant bad record for instance, or they can reduce the penalty if they can be seen properly as mitigating.

[9]      There are two things that Ms Scott has urged upon me on your behalf.  First, she submits that you should be accepted as a person of good character and as a first offender.  Secondly, she asks that I accept that you are truly remorseful.  The Crown does not contest your ability to rely on these mitigating factors, but does not accept that the 15 per cent discount asked for by Ms Scott is correct.  The Crown submits that the discount should be less than that.

[10]     In  terms  of  your  character,  the  New  Zealand  Police  have  checked  with Interpol and it seems that you have no record in Poland or Czechoslovakia.  Poland is your homeland although you have spent some time in Sweden.  You have reported to the probation officer that you have been consistently employed  through  your lifetime, and had been employed in an air-conditioning company before leaving Poland.

[11]     I  am  prepared  to  accept  that  there  should  be  a  discount  for  your  good character.  You have also told the probation officer that you are most remorseful for what you have done and this is also commented on by your counsel.  You appear to have impressed the probation officer as genuinely remorseful and on the material before me I am prepared to accept that is so.

[12]     You obviously regret what your offending is going to do to your life.  It is going to mean that you miss your daughter’s wedding and you will not see your elderly mother for some years.   These are severe penalties.   But that alone is not sufficient remorse.   What is required is a genuine appreciation and regret for the harm that your offending would do.   I am prepared to accept that you have that regret.

[13]     Before I turn to the amount of discount I propose to give for good character and remorse I turn to the third aspect of the sentencing which is the assessment of the discount you are entitled to for your plea of guilty.   You are entitled to that discount because by cooperating with the Police and indicating at the first reasonable opportunity a willingness  to  plead  guilty,  you  have saved  the State the cost  of prosecuting you at a defended trial.   However, it has to be said that the Crown is unlikely to have had any difficulty in establishing your guilt given that you were found with the methamphetamine in your body.  I do not consider a full 25 per cent discount to be warranted in these circumstances.

[14]     In the end I am going to reach a final sentence in this way.  From the nine year starting point I propose giving you a very generous discount for remorse and good character of 15 per cent.   In this  calculation  I also take into account the hardship of serving a sentence away from your home, family and friends, and in an

environment where you do not speak the language.  Fifteen per cent is a useful round figure for the purpose of the calculation and perhaps a fraction higher than might be warranted.  But I am not going to give you the full 25 per cent discount that I could for your guilty plea; rather a discount of approximately 22 per cent.   So the end figure that I determine is the fair sentence is a period of six years’ imprisonment.

Minimum term of imprisonment

[15]     Mr  Waalkens  for  the  Crown  submits  that  to  mark  the  gravity  of  your offending given the large amount of methamphetamine involved a minimum term is required.  The Crown relies on s 86 of the Sentencing Act 2002 and submits that the minimum term that you would normally serve of a third if a full parole is allowed, is insufficient.

[16]     Given the amounts involved that submission would be fully warranted if your role was not that of a mule or courier.  However, I have already commented on the lowly nature of your position in the chain.  There is also the apparent one-off nature of your offending and the fact that you are a Polish national and will serve your sentence in a prison far away from your family and in an environment where you do not speak the language.

[17]     These factors persuade me that the standard provisions in s 84(1) of the Parole Act 2002 and the minimum period of imprisonment that flows from them are sufficient to hold you accountable, to denounce your conduct and to deter you and other  persons.    I am  particularly mindful  of  the  fact  that  you  were  fortunately apprehended  before  any  harm  was  done  to  our  community  and  that  it  is  not necessary to protect the community from you as you are going to be deported.  So I decline to order a minimum term of imprisonment.

[18]     Mr Wachnicki, on this single charge of importing methamphetamine you are sentenced to six years’ imprisonment.

[19]     You are 51 years old and your life now is significantly changed through this act of stupidity.   I doubt whether you are a real criminal type, but you did a very,

very  foolish  thing.    You  placed  your  life  at  risk.    The  issue  that  I  have  been concerned with in this sentencing is that you placed our community at risk.   You must now serve this considerable period of time in a New Zealand prison for doing this.

[20]     Please stand down.

……………………………..

Asher J