R v Walsh - [2023] NZHC 680

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2021-070-1570

[2023] NZHC 680

THE KING

v

RYAN DUKE PARAONE WALSH

Hearing: 30 March 2023

Appearances:

D P Coulson for the Crown A G Speed for the Defendant

Date:

30 March 2023

ORAL JUDGMENT OF PALMER J

[1] Mr Ryan Walsh, now aged 28, has been found guilty by a jury of the offence of conspiring to import cocaine, which carries a maximum penalty of 14 years’ imprisonment.1 Today I decide whether he should be discharged without conviction or, if convicted, what his sentence should be.

What happened?

[2] In 2021, when he was 26, Mr Walsh was living with his partner across the road from his partner’s mother’s house where his partner’s brother, Mr Tama Waitai, was staying on parole. Mr Waitai had been released from prison at the end of 2020 after serving a lengthy sentence.

1 Misuse of Drugs Act 1975, s 6(2A).

R v WALSH [2023] NZHC 680 [30 March 2023]

[3] Mr Waitai, and his associate Mr Tangaroa Demant, had agreed with a Mexican- based organised criminal group to import a large quantity of cocaine into New Zealand. The plan was that, when a ship docked at the port of Tauranga, they would remove from it a shipping container that would contain cocaine, before any customs inspection. They had a man working on the Mt Maunganui side of the port to help with that, Mr Maurice Swinton. But they needed a man working on the Tauranga side, in case the ship berthed there. Mr Waitai, Mr Demant, and Mr Swinton all pleaded guilty to conspiring to import cocaine, on the basis that the quantity would be around 200 kilograms.

[4] Mr Walsh did not know Mr Waitai until Mr Waitai got out of prison. The jury heard three intercepted phone conversations between Mr Demant and Mr Waitai, which also involved Mr Walsh, on 31 January 2021, 7 February 2021, and 12 February 2021. Mr Walsh was not involved in the whole of these conversations. And it is not clear from those conversations exactly what he knew about their plans. But he did agree to help them find someone to help them with whatever they were planning. He mentioned an uncle and then a workmate or a workmate’s friend at the port.

[5] Mr Walsh’s evidence at trial was that he was trying to impress his partner’s brother. He felt pressured and a bit intimidated. He was trying to get onside with his partner’s family, and was just making it up to fit in. His evidence was that he did not know anyone who could help them, there was no uncle at the port, he never intended to find anyone to help them, he never made any inquiries, and he had no knowledge of any drugs.

[6] Indeed, there is no evidence Mr Walsh ever did find anyone to help the other conspirators. And the plan never proceeded.…

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 Walsh

Details

AGLC: R v Walsh [2023] NZHC 680
Case: [2023] NZHC 680
Decision Date: 30 March 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Tauranga Registry, the case of R v Walsh involved Ryan Duke Paraone Walsh, who was found guilty by a jury of conspiring to import cocaine. The court was tasked with deciding whether Walsh should be discharged without conviction or, if convicted, what his appropriate sentence should be. Walsh was accused of assisting a conspiracy to import a large quantity of cocaine into New Zealand, a plan that was never executed. Walsh claimed he was pressured by his partner's family to participate but did not actually know the specifics of the plan and did not intend to follow through.

The court examined whether a discharge without conviction was appropriate under Section 11(1)(a) of the Sentencing Act 2002. The court considered several factors, including the gravity of the offending and the potential consequences of a conviction on Walsh and his family. The court noted that Walsh's involvement was minimal, the conspiracy was in its early stages and did not proceed, and there was no evidence that Walsh knew the specifics of the plan or intended to participate further. Additionally, Walsh had a difficult upbringing marked by substance abuse and violence but had turned his life around, achieving stability and success in his career as a commercial diver. A conviction, the court found, would have severe consequences for Walsh's career and family life, potentially undoing years of hard work and progress.

After weighing these factors, the court concluded that the consequences of a conviction were out of proportion to the gravity of Walsh's offending. The court exercised its discretion to discharge Walsh without conviction, taking into account the mitigating circumstances of his case and the low risk of reoffending. The court urged Walsh to avoid any future involvement in criminal activity for the sake of himself, his family, and society.

Orders