R v Wilkie HC Wellington CRI 2007-085-6245
[2010] NZHC 1785
•11 October 2010
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2007-085-006245
THE QUEEN
v
TIMOTHY JOHN WILKIE
Counsel: G J Burston for Crown
I M Antunovic and C L Parkin for Prisoner
Sentence: 11 October 2010
NOTES ON SENTENCING OF GENDALL J
[1] Timothy John Wilkie, you appear for sentence having been found guilty by a jury in this Court on five counts of importing into New Zealand the Class A controlled drug methamphetamine. Having presided at the trial of yourself and Sara McSweeney the evidence is of course well known to me and I sentence you on the basis of the following facts.
[2] You were a serving prisoner at Rimutaka Prison during 2007 and became involved in an extensive and sophisticated drug importing operation, organised and operated out of that prison. Central to the operations was a Thai national named Aritut Sungsuwan, who was serving a term of imprisonment at Rimutaka for a sexual crime. He had contacts in Thailand and elsewhere and was involved with other serving prisoners in importing on demand, large quantities of
methamphetamine from Thailand into New Zealand. That demand came from at
R V WILKIE HC WN CRI-2007-085-006245 11 October 2010
least three separate groups apart from your syndicate and others involved in the importation. They involved Ian Nuku, Shane Ellis, Deryk Doar and Monica Klokstad and all have been sentenced for their involvement in separate importations. A schedule of the sentences imposed upon them, including the sentence that I imposed upon Sara McSweeney your associate, is to be annexed to my sentencing notes.
[3] You had been an inmate at Rimutaka Prison from 10 May to 19 October
2005. During that time you were in the same unit as Mr Sungsuwan. That term of imprisonment regrettably did not do anything to curb your criminal ways. Whilst on parole, and within four months of your release from that term, you committed further serious crimes. They included receiving a stolen Dukati motorcycle valued at
$35,000 which someone had stolen from a shipping container at Wellington wharf. You were apprehended travelling on it from Auckland towards Wellington having in your possession for supply 92 grams of methamphetamine, with a street value of approximately $100,000. Because you were caught red-handed there was no possible defence and you pleaded guilty. You were sentenced, it happened by me, to an effective term of five years’ imprisonment. So you returned to Rimutaka Prison and struck up a friendship and association, if it did not already exist, with Mr Sungsuwan. That was between March 2006 and May 2007. You were a recidivist criminal and had no intention of re-forming and quickly became involved in the importation of a very large quantity of methamphetamine.
[4] So between March and June 2007 you, through the agency and contacts of Mr Sungsuwan, were a central and critical figure in the importation of five packages of methamphetamine from Thailand, which totalled approximately 616 grams or
22 ounces and a street value in excess of $600,000. You and the Thai prisoner arranged the importation, he having the contacts in Thailand and a vital participant in the Wellington community a female named Piyaporn Paetmuangjan. Outside Rimutaka Prison you had the corresponding essential links. They were namely your former partner Sara Lee McSweeney and unquestionably another or others, who provided her with over $100,000 to provide the funds to be given to the Thai female and instructions as to places of delivery, and for transmission of the funds to Thailand to pay for the methamphetamine that was to be delivered. This was
delivered into New Zealand. There can be no doubt that the orders that you placed with or through Mr Sungsuwan were part of a plan or scheme that you had with a male drug dealer or dealers in the Hutt Valley community. You arranged for Ms McSweeney to meet the Thai female to give her the cash and addresses in the Hutt Valley and to which the methamphetamine packages were to be sent. Ms McSweeney had connections with a known drug dealer in the Hutt Valley. You were the father of her child and she visited you frequently and you were able to contact her at the home in which she was living through her landline and in respect of which you and only you, had permission to contact her. You had the opportunity to use illicit cellphones available to you, as well as to others in Rimutaka Prison and you had extensive cellphone contact with her.
[5] Just as Ms Paetmuangjan was a crucial link between Mr Sungsuwan and the methamphetamine suppliers in Thailand and Ms McSweeney, the latter was a vital link between you and the drug dealer in the Hutt Valley. I have no doubt that he and others outside the prison benefitted just as someone else was to benefit (at least according to your explanation) from the $100,000 worth of methamphetamine with which you had been caught on an earlier occasion and for which I was bound to return you to Rimutaka Prison. The jury’s verdicts make it clear that they found you to be a catalyst placing the orders for importations with Mr Sungsuwan and although others benefitted substantially, there could be no doubt that you had hoped to take eventual benefit from the drug importation operation.
[6] Large sums of money were involved, with the five packages having an agreed cash price to be transmitted to Thailand of $135,000. Four of the importations were successful and the final package although not being accepted, the deposit was paid. As I have said the evidence was that the total drugs imported may have had a street value of up to $600,000. After each successful importation another was to take place and that happened in respect of the fifth package, which involved 140 grams or five ounces.
[7] But one of the Thai operatives was arrested in Thailand and records that she had kept pointed to those involved in the importations in New Zealand. So the fifth package which was to be delivered to Ms McSweeney’s home in the Hutt Valley was
intercepted at the Auckland Mail Centre. Because of its delay in being delivered and she and others involved became alarmed and steps were taken to cover the tracks. I am satisfied that you and others knew through communications and the tracking of the package in Auckland that it was too risky for it to be accepted when delivered to her home. Indeed, Mr Sungsuwan had said in relation to an earlier importation, that if it was delayed then “they are not going to accept it” and that can only have arisen through your communication of that fact to him in prison. That of course related to another package which was not, however, rejected.
[8] But on 5 June 2007 the controlled delivery of the fifth package was attempted at the home of your former partner, Ms McSweeney. She was present along with a known drug dealer at that time. I am satisfied that you knew that it was likely to be delivered that day and that it was not going to be accepted. That is because amongst the wealth of material before the jury was evidence of texts (but not their content) sent by Ms McSweeney to cellphones to which you had access on four occasions between 9.00 and 9.32 on that morning of 5 June 2007. The attempted delivery was made at 11.30am and four minutes after that a further text was sent by Ms McSweeney to a phone in the prison to which you had access. By 4.45pm that day Ms McSweeney had text you on three further occasions and there was evidence of attempted phone calls from the phone you were using to her between 3.00 and
4.00pm that day. At 4.45pm you phoned her at her home from the Rimutaka Prison pay phone to her landline, that being a permissible contact to which only you would have access. All of this made it quite clear that you were in close contact or attempted contact with her on that day because you knew precisely what was going on. The Thai female was arrested that day but your associates on the outside were not. Steps were taken to dispose of cellphones and anything that might point to an association with the Thai female.
[9] It was only as a result of outstanding police investigations that evidence was obtained sufficient for you and Ms McSweeney to be charged. As was your right you said nothing then or subsequently and it was not until you gave evidence at your first trial, and again at the second trial, that any explanation was forthcoming from you. Naturally, you did not have to give any explanation or say anything. But I am satisfied that it was only when you had obtained full disclosure and discovery from
the prosecution that you were able to craft together and manufacture a story which you advanced to the jury in the witness box and which the jury rejected as a concoction and lies, given their verdicts. They were entitled to do so.
[10] You and Ms McSweeney were charged as parties to the importation and whilst it is clear that there were other drug dealing associates on the outside, and more senior to you, nevertheless you played a crucial and vital role in each importation and in placing the orders through Mr Sungsuwan and communicating with Ms McSweeney. You knew precisely what you were doing involving her as a crucial participant and you sought to obtain benefits in dealing or importing very large quantities of methamphetamine. You had dealt in drugs before and was serving a significant term of imprisonment for such dealing. But that did not deter you from continuing to be involved in large-scale importation from within the prison.
Sentences of others
[11] Those involved in other syndicates received varying sentences. Ian Nuku, who was a primary importer originally operated from inside the prison and imported
215 grams of methamphetamine. The sentencing Judge took a starting point of
16 years imposing a final sentence of 12 years’ imprisonment; Monica Klokstad took over her deceased uncle’s importing operation but was herself a major importer of 230 grams. The Judge took a starting point of eight years and three months’ imprisonment and that was her sentence; Deryk Doar had one count of importing
121 grams and a starting point of five years was taken; Shane Ellis was charged with three counts of importing 260-280 grams of methamphetamine, and he provided a support role as a link between Mr Nuku and the Thai female. So he acted in a similar way to Sara McSweeney. A starting point of eight years’ imprisonment was taken but because of his poor criminal history a sentence of nine years’ imprisonment was imposed; your close associate Sara McSweeney, with her a starting point of 11 years was taken and no discount could be given to her for any guilty pleas. But given her personal and family circumstances and she had no previous convictions, a substantial discount was given leading to an eventual sentence of eight years’ imprisonment; the Thai female apprehended in
New Zealand was sentenced to six years’ imprisonment on 11 counts of importing methamphetamine totalling 980 grams. She could have expected a very substantial sentence with Clifford J taking a starting point of 15 years’ imprisonment. But for reasons that will be well known to you the end sentence was six years because of her immediate guilty pleas, assistance given to the police in bringing to trial and justice at least six persons involved in this serious criminal offending including you. It was only through her co-operation and volunteered assistance that led to the guilty pleas of Mr Nuku, Ms Klokstad and Mr Doar and the eventual conviction of Mr Ellis, Ms McSweeney and now you.
General comments on seriousness of offending
[12] I simply repeat my remarks concerning the drug methamphetamine that I made when sentencing Ms McSweeney. It is probably falling on deaf ears having been made earlier when sentencing you on a previous occasion, but they need to be said. I have no doubt that given your history and dealing in this drug you do not care what the Court may say. You have lived a lawless life since the age of 16 in 1992 and are an incorrigible criminal. You have 95 previous convictions. But you and other criminals involved in dealing with this drug need to hear, yet again, how dangerous it is. It is a pernicious dangerous drug which destroys the lives of individuals, families and communities. It is a curse and a very serious problem in our community. Responses to those who occupy the upper echelon of importing and supply must be stern. They callously exploit the customers for the sole motivation of profit which causes addiction, misery and leads in many instances to devastating other crimes.
Aggravating features
[13] I turn to the aggravating features of your offending. They include the number of importations for which you have been found guilty and the amounts involved, which are far in excess of those for which other New Zealand importers who have been convicted have been sentenced, they being at least double having a street value as I have said over $600,000. It is aggravating the importation plans were hatched from inside Rimutaka Prison with the use of unauthorised cellphones and
communications by you to those on the outside. Your conduct was derisory of the community indicating a total disregard for the penalties imposed upon you on previous occasions and your imprisonment for drug dealing in methamphetamine. It is particularly aggravating that you participated in organising the drug importations from prison and as I have said it is especially aggravating that you are serving a sentence of imprisonment imposed by this Court on 26 May 2006 for possession for supply of methamphetamine to a street value of $100,000.
[14] I have had access to and reviewed my sentencing remarks at this time, describing you then as having lived a lawless life, that offending also taking place shortly after having been released from prison, for sentences for crimes of threatening to kill and blackmail. You then had unpaid fines and reparation in excess of $35,000 and claimed to the probation officer then that you owed money to an associate so drove to Auckland to pick up methamphetamine for him, although when you were apprehended at least according to the police you said the methamphetamine was yours. You were very fortunate that the sentence then imposed was only five years. You have shown no motivation or inclination to change your criminal ways. As I have said, offending whilst in prison for these crimes is derisory and indicated a total disregard for messages inherent and the penalty that led to you to be imprisoned makes a mockery of the process of justice.
[15] As Simon France J said when sentencing Mr Nuku, there are indications you are at the highest end of a risk of reoffending, was willing to act in such a manner whilst in prison. The probation officer also says that you are a high risk of re- offending showing no remorse or insight. I agree. The community needs protection from you, and you need the strongest individual deterrent. Those who are in prison must be made aware that to organise offending that is to occur out in the community whilst they are in prison will attract heavy responses.
[16] You have 95 previous convictions, including multiple for violent offending, a number for drug offending and possession of weapons and firearm. They comprise significant personal aggravating features. There are no mitigating features either personally or in relation to the offending. You are not entitled to a discount for having pleaded guilty but of course it was your right to proceed to trial as you did.
You were very ably represented and were fortunate, however, the Court ruled against the Crown leading propensity evidence of your methamphetamine drug dealing conviction, or to allowing the Crown to cross-examine you as to multiple serious dishonesty offences. It was my view that the introduction of that evidence would have risked unfair prejudice to you so as to impede a fair trial.
[17] The starting point taken for Mr Nuku was 16 years’ imprisonment and he obtained a significant discount for his guilty plea. When I say starting point that is what the Judge said, but in fact the starting point was of course 11 years with a five years uplift because he was a serving prisoner. In terms of R v Fatu[1] you fall squarely into band four, namely importing large commercial quantities – 500 grams or more. The starting point for the sentencing band is 12 years to life imprisonment. As the Court of Appeal said, those bands apply to all who import methamphetamine and:
[1] R v Fatu [2006] 2 NZLR 72 (CA).
Obviously the more significant the role of the offender in any importation, the closer the appropriate sentence will be to the top end of the relevant sentencing band.
[18] I agree with Mr Antunovic that in your case a proper initial starting point is
13 years’ imprisonment. The aggravating features of offending whilst in prison for a drug dealing offence together with your substantial criminal history require an uplift of a total of four years’ imprisonment. I am not double counting the uplifting factors. There are two and they are separate. First, the feature that requires a significant uplift of three years is for offending such as this whilst in prison. I add a further one year additional uplift for your dreadful criminal history. That is an uplift of four years’ imprisonment from a starting point of 13 years, so a final sentence of
17 years’ imprisonment, I am satisfied, is appropriate in your case. The Crown had submitted a final sentence of between 18 and 20 years’ imprisonment was necessary incorporating a proportionate uplift of five years as was imposed for Mr Nuku. But in the end sentencing is not a mathematical proportionate exercise. The Court must stand back and look at what the final sentence imposed is so as to properly meet all the principles of sentencing. I think 18 to 20 years is a little too high. But 17 years’
imprisonment is necessary.
[19] A minimum non-parole period is required. A message must be loud and clear that this derisory conduct by criminals cannot be tolerated and must be met with a stern response and that message cannot be compromised. The relevant criteria is whether the offending is sufficiently serious to take the offence out of the ordinary range of this offending, which in my view it is and the community needs protection from you. So a term considerably more than one-third of a finite sentence must be served. I fix it at nine years’ imprisonment.
Final sentence
[20] Accordingly, on each of the five charges of importing methamphetamine you are sentenced to concurrent terms of imprisonment of 17 years. Those sentences are to commence from today. I direct that you serve a minimum of nine years’
imprisonment before you are eligible to be considered for release on parole.
J W Gendall J
Solicitors:
Crown Solicitor, Wellington
I M Antunovic, Wellington for Prisoner
OPERATION EARLE SENTENCES
NAME COUNTS AMOUNT PLEA START SENTENCE NON-PAROLE
| Piyaporn | Importing Class A (x11) | 980 grams | Guilty | 15 years | 6 years | – |
| Ian NUKU | Importing Class A (x3) | 215 grams | Guilty | 16 years | 12 years | 7 years |
| Monica KLOKSTAD | Importing Class (x3) Conspiracy to import (x1) | 230 grams | Guilty | 11 years | 8 years 3 months | 4 years |
| Shane ELLIS | Importing Class A (x3) | 260-280 grams | Not Guilty | 8 years | 9 years | 4½ years |
| Deryk DOAR | Importing Class A (x1) | 121 grams | Guilty | 5 years | 5 years | – |
| Sara McSWEENEY | Importing Class A (x5) | 616 grams | Not Guilty | 11 years | 8 years | 4 years |
0
0
0