R v Wilk - [2018] NZHC 2704

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-004-7162

[2018] NZHC 2704

THE QUEEN

v

RALPH ALAN WILK

Hearing: 18 October 2018

Appearances:

J Murdoch for Crown A G Speed for Mr Wilk

Sentence:

18 October 2018

SENTENCING REMARKS OF PETERS J

Solicitors: Meredith Connell, Crown Solicitor, Auckland Counsel: A G Speed, Auckland

R v WILK [2018] NZHC 2704 [18 October 2018]

Introduction

[1] Mr Wilk, you are for sentence on two representative charges, one of being a party to the supply of a Class A controlled drug (cocaine), and the other of engaging in money laundering transactions knowing or believing that all or part of the cash was the proceeds of an offence.1

[2] I gave you a sentence indication on 24 September 2018 on the two representative charges.2

[3] You accepted the indication immediately. I entered the convictions and ordered a Provision of Advice to Courts (“PAC”) report.

[4] At the Crown’s request, I am to discharge you on all remaining charges and I do that now.

[5] I shall not repeat what I said in the sentence indication because I am attaching a copy to this note. But it is enough to say when I gave the indication, I had an agreed summary of facts and very helpful submissions from both the Crown and Mr Speed.

[6] Since then, I have received the PAC report. It makes for disappointing reading in the sense that it confirms what is said in the summary of facts, namely that your father brought you into this offending and now has left you here to face the consequences. This is very unfortunate because but for this offending you seemed to be doing very well.

Starting point

[7] For the reasons given in the sentence indication, I adopted a starting point of 11 years’ imprisonment. That took account, to the extent possible, the fact that you were acting under your father’s direction. I declined to increase the starting point for the separate money laundering offending for the reasons set out in the indication.

1 Misuse of Drugs Act 1975, s 6(1)(d) and (2)(a); and Crimes Act 1961, s 243(2).
2 R v Wilk [2018] NZHC 2514.

[8] I did not then make any reduction to the starting point for personal factors although of course I reduced it by 15 per cent to take account of your guilty pleas.

[9] Mr Speed has now proposed that I should give you a further, modest, discount for prior good character and also for the fact that you will find it more difficult to serve a sentence away from your home country.

[10] I have read now the reports of your compliant, probably fair to say model, behaviour in prison and the manner in which you have taken advantage of the opportunities open to you in prison to increase your skills and learn what you can. I also have read your letter, which I accept is…

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 Wilk

Details

AGLC: R v Wilk [2018] NZHC 2704
Case: [2018] NZHC 2704
Decision Date: 18 October 2018

CaseChat Overview and Summary

Ralph Alan Wilk was sentenced by Peters J in the High Court of New Zealand Auckland Registry for his involvement in the supply of a Class A controlled drug, cocaine, and money laundering. The court adopted a starting point of 11 years' imprisonment, which was reduced to 10 years after considering the defendant's prior good character, his remorse, and the fact that he would be serving his sentence away from his home country. The court also considered the defendant's compliant behaviour in prison and the opportunities he had taken to improve himself. The final sentence was eight years and five months' imprisonment for the drug supply charge, to be served concurrently with one year for the money laundering charge. The court did not impose a minimum period of imprisonment as the defendant would be deported upon completion of his sentence.

The court was required to decide on the appropriate starting point for the sentence, taking into account the quantity of drugs involved, the defendant's role in the offending, and the need for deterrence and denunciation. The court also had to consider the defendant's guilty pleas and any mitigating factors, such as his prior good character and the fact that he would be serving his sentence away from his home country. The court had to balance these factors against the seriousness of the offending and the need to hold the defendant accountable for his actions.

The court's reasoning was based on the agreed summary of facts, which showed that the defendant was acting under the direction of his father, who had brought him into the offending. The court took into account the defendant's remorse, his compliant behaviour in prison, and the support he had received from his family. The court also considered the fact that the defendant would be deported upon completion of his sentence, which meant that he posed no further risk to the community. The court concluded that a sentence of eight years and five months' imprisonment was appropriate, taking into account all the relevant factors.

Orders