R v Wilkinson

[2021] NZHC 185

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-004-007113

[2021] NZHC 185

THE QUEEN

v

NEIL JOHN WILKINSON

Hearing:	12 February 2021
Appearances:	K A Lummis & P Patanasiri for Crown A M M Ives for Defendant
Sentence:	12 February 2021

SENTENCE OF PAUL DAVISON J

Solicitors:

Crown Solicitor, Auckland

R v WILKINSON [2021] NZHC 185 [12 February 2021]

Introduction

[1]    John Neil Wilkinson at age 62 and having been found guilty by the jury at your trial in November last year, you appear before me for sentence on one charge of possession of the Class A controlled drug, methamphetamine, for supply.1

[2]    On 31 July 2019, Police executed a search warrant at a central city apartment where you were staying here in Auckland. In the wardrobe of the bedroom of the apartment the Police located a number of cardboard boxes containing a total of 193 kilograms of methamphetamine being a quantity valued at approximately $27,000,000 on the New Zealand market. The jury at your trial found that you were in possession of the methamphetamine, for the purpose of supplying it to others.

[3]    In sentencing you I must accept as proven, all of the facts which were essential to the jury’s finding of guilt.2 As the trial Judge I also am entitled to make factual findings based on the evidence at trial, where they are consistent with the jury’s verdict.3

Your offending

[4]    Mr Wilkinson, you are British national, and before coming to New Zealand you had lived and worked for around 30 years in Thailand making periodic return visits back home to England during that time. On 17 June 2019 you came to New Zealand from Thailand via Australia, arriving here shortly following the arrival of your co-offenders and countrymen, W and C who had previously both arrived during May 2019. You told New Zealand Customs that you had come here for a holiday.

[5]    However, rather than coming here for a holiday you were in fact here to participate in and play a role in the illegal operations of an international drug syndicate which had organised and carried out the successful importation of some 500 kilograms of methamphetamine into New Zealand which was held and awaiting distribution.

1      Misuse of Drugs Act 1975, s 6(1)(f); maximum penalty: life imprisonment.

2      Sentencing Act 2002, s 24(1)(b).

3      Section 24(1)(a); Edwardson v R [2017] NZCA 618 at [105]–[107].

[6]    Your airline ticket, hotel accommodation and living expenses were all paid for by the syndicate. Soon after your arrival you were contacted by your co-offenders and from your initial hotel out near Auckland International Airport you were relocated to a hotel in the central city. Over the following weeks you remained in Auckland and maintained contact with your co-offenders by using a cell phone which they had provided you with in order to exchange messages, and arrange meetings and you met regularly with them to socialise and receive directions and money to cover your ongoing accommodation and living expenses.

[7]    During this time C was staying in an inner city apartment where he had been concealing just under 200 kilograms of the methamphetamine which the drug syndicate had brought into New Zealand. On 19 July 2019 C departed Auckland for Australia, and you were given the responsibility of moving into the apartment and safeguarding the methamphetamine which was being stored there. You accordingly moved that day into the apartment that C had vacated, and you remained living there up until when you were located by Police and arrested there on 31 July 2019.

[8]    In the wardrobe of the bedroom, on the occasion of your arrest, the Police located eleven 52 litre capacity cardboard boxes each sealed with clear tape. One of the boxes had been opened, and inside it were 18 plastic containers. A New World shopping bag was also located in the wardrobe, and inside it was another plastic container. Each plastic container contained methamphetamine in crystalline form - assessed at 80 per cent purity. Approximately 193 kilograms of the Class A drug methamphetamine was found. And as I have already said, on the New Zealand market, this quantity is valued at approximately $27,000,000.

[9]    The weight of methamphetamine is a reasonable proxy for the extent of the social harm that would be caused by its supply in a given case, and is a reasonable indicator of the degree of commerciality.4 Methamphetamine is a pernicious and highly addictive substance the use of which invariably causes significant and enduring physical and psychological damage to those who become involved in its use and who inevitably also become caught up in the desperate and sordid criminal world of those

4      McDonald v R [2020] NZHC 1509 at [8], citing Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [187].

involved in its distribution and sale. The damage it causes extends well beyond those directly involved in using it and includes family and friends and indeed the whole community, who suffer the consequences of its distribution and use within our community. The estimated cost of the social harm to the New Zealand community that would be caused by the distribution of the quantity of methamphetamine that you were found to have in your possession for supplying others is nearly $240 million.5 While that harm is measured in dollars the human cost and damage to the lives of those caught up in or affected by its use is immeasurable.

Personal circumstances and background

[10]   The pre-sentence report prepared by the Department of Corrections states that you were born in England in February 1959 and in your own words you were “brought up very well” by your parents. After completing your secondary school education you commenced a bricklaying apprenticeship and you continued to work in that trade for over ten years. While in your twenties you met and married your first wife and you and she had a child together. In March 1985 your wife was tragically killed in an accident, and her death had a devastating effect upon you. In your words the tragedy turned your life “upside down at that point.” During the following five years you consumed excessive amounts of alcohol. In 1990 you went to Thailand for a holiday, and once there decided to stay, and you remained living in Thailand for the next 30 years and made a new life for yourself there including starting a new family. You have a Thai partner and together you have raised a daughter who is now studying at a university in Thailand.

[11]   You told the author of the pre-sentence report that whilst on a short holiday to Australia in 2019, you got into financial difficulties and as a result you were introduced by mutual friends to your co-offender hoping that an arrangement could be made to solve your financial problem. It would appear that this introduction led to you coming to New Zealand and your participation in the illegal drug operation with which your co-offender was also involved. In the course of your interviews with the author of the pre-sentence report you placed significant responsibility for your offending on your

5      The Ministry of Health “Drug Harm Index 2016” at [34] which estimates the social harm to be approximately $1,239,000 per kilogram of methamphetamine.

co-offender who you said had organised the drug operation. You explained that you agreed to become involved in the enterprise as a means of getting out of the financial difficulties you were in, and in order to access funds to purchase a return ticket back to the United Kingdom. You told the report writer that you were only here in New Zealand to pick up some money ($500,000) for somebody else.

[12]   However you also denied having knowledge that the boxes found in the apartment at the time of your arrest contained illicit drugs. I reject your denial of having knowledge that the boxes contained illegal drugs. The effect of the jury’s finding and verdict is that it was satisfied beyond reasonable doubt that you either had actual knowledge that the boxes contained methamphetamine or that you were reckless as to whether the boxes contained an illicit substance. Having regard to the circumstances in which you were recruited to come to New Zealand, your close association with your co-offenders after your arrival here, they being persons responsible for the transporting and concealing of the drugs in the boxes that were found in the apartment, and having regard to your occupation of the apartment where the boxes containing the methamphetamine were being stored, and your action of delivering a plastic box from within one of the cardboard boxes containing a kilogram of methamphetamine to W wrapped in a t-shirt, so as to conceal its true nature, I consider that there can be no other reasonable explanation for your actions other than you either well knew what was in the boxes was methamphetamine or at least some other illicit class A controlled drug or you were well aware of the circumstances which indicated that that was a real risk and you deliberately ignored those circumstances in a way which was quite unreasonable and unrealistic.

[13]   I note that this is your first involvement with New Zealand’s criminal justice system and that you have no history of any prior offending. Your offending and your presence before the Court today is due to your preparedness to be involved in the activities of your co-offenders in order to get yourself out of financial difficulties. You appear to have run a deliberate and conscious risk of being involved and were willing to be involved in the enterprise, and to ignore the harm and suffering that distributing the drug would cause, in order to gain financially so as to get yourself out of whatever financial difficulties you had found yourself in.

[14]   You have acknowledged your long-standing addiction to alcohol over the extended period that followed the death of your first wife. You have expressed your willingness to undertake rehabilitative programmes and interventions and that is to your credit. Having regard to your background and the circumstances which led to your participation in the offending, I consider that there is little risk of you re-offending in the future.

Approach to sentencing

[15]   I will commence the sentencing by determining an adjusted starting point for your offending, in accordance with the Court of Appeal’s guidance in the case of Zhang v R.6 In this decision, the Court of Appeal established five bands into which methamphetamine-related offending can be placed, having regard to the quantity of drug involved in the offending, and the Court set out a range of potential penalties for offending falling within each band. The Court confirmed that the quantity of the illegal drug is an important measure of culpability, as quantity is an indicator of the commerciality and of the harm it will cause to the community.7

[16]   However, the quantity of the methamphetamine involved in offending is not the sole determinant of culpability. I must also carefully consider your particular role in the offending. In Zhang, the Court of Appeal divided the role played by offenders into three distinct categories: lesser, significant, and leading. The nature of the role you played will inform my assessment of the gravity of the offending, and of where it should be placed within the band that I consider appropriate for the purposes of determining the appropriate sentence to be imposed upon you for your offending.

[17]   Once I have determined the adjusted starting point, I will then adjust that starting point to take account of the aggravating and mitigating factors personal to you.8 By this process I will arrive at an end sentence to be imposed.

[18]   Finally I will consider whether a minimum period of imprisonment should be imposed upon you, pursuant to s 86 of the Sentencing Act 2002.

6      Zhang v R, above n 4.

7 At [104].

8      Moses v R [2020] NZCA 296.

Sentencing purpose and principles

[19]   Mr Wilkinson the purposes of sentencing you are to hold you accountable for the harm done by your offending to the community and to promote in you a sense of responsibility for and an acknowledgment of that harm. The sentence to be imposed is also intended to denounce your conduct and to deter you and any other persons from committing the same or a similar offence. In determining the sentence to be imposed I must apply the principles of sentencing set out in s 8 of the Sentencing Act 2002 including having regard to the gravity and the seriousness of your offending, together with the seriousness of the type of offence compared with other types of offences as indicated by the maximum penalties prescribed, and I must impose a sentence near to the maximum prescribed for the offence where the offending is near to the most serious of cases for which the penalty is prescribed, unless circumstances relating to you make that inappropriate. Also included within the matters to be taken into account are any particular circumstances relating to you that mean that a sentence that would otherwise be appropriate, would in your case be disproportionately severe.

[20]   The quantity of methamphetamine involved here of 193 kilograms, places your offending Mr Wilkinson, well within band five of the Zhang categories, meaning that the stipulated range of starting points for a sentence to be imposed upon you is between 10 years’ imprisonment and life imprisonment.9

[21]   However, as I have said, the quantity of the drug involved in the offending is not the sole determinant of culpability. A defendant’s role in the offending, is a fundamental element in the assessment of an offender’s culpability. The more significant the role played by an offender the higher their degree of criminality and level of culpability. The Court of Appeal in Zhang has divided the role played by offenders into three categories described as: “lesser, significant, and leading”. The role of an offender will inform the Court’s assessment of the gravity of the offending and where it should be placed within the band for the purposes of determining the condign sentence for that offending. The Court of Appeal observed that in assessing

9      Zhang v R, above n 4, at [125].

role, sentencing judges may find it helpful to consider the table composed of indicia adapted from the United Kingdom (UK) Sentencing Council.10

Step one – The starting point

Crown submissions – starting point

[22]   Ms Lummis for the Crown submits the appropriate starting point in your case is a sentence of 23 years’ imprisonment. She submits that you played a role falling somewhere between the “lesser” and “significant” roles described in Zhang as you were an: “essential cog in the wheel of the drug syndicate’s New Zealand operations.”11 Her submission is founded upon the basis that you:

(a)were     found    in     possession     of    a     significant     quantity     of methamphetamine, this being 193 kilograms;

(b)the reason that you were in possession of this quantity of drugs was because you had been promised some form of future gain;

(c)you had travelled to New Zealand at the syndicate’s direction;

(d)you had safeguarded the $27 million worth of methamphetamine for some 12 days in the apartment where you were temporarily residing;

(e)you were responsible for distributing some of the methamphetamine to your co-offender W;

(f)and, your accommodation, travel and other essential costs were paid for.

[23]   Ms Lummis acknowledges that whilst you did not have access to an encrypted “cypher” phone as did your co-offender, you nevertheless had been equipped with a standard mobile phone purchased for the purposes of communications with your

10     Zhang v R, above n 4, at [126].

11     Crown submissions at [4.6].

co-offender in connection with the operation, as well as communicating in relation to facilitating your offending. Ms Lummis also acknowledges that you did not direct others involved in the operation, and you had no influence over the superiors involved in the operation or organisation.

[24]   Ms Lummis directs me to several previously decided cases involving methamphetamine sentencings including that of your co-offender,12 which she submits provide a guide to the starting point I should apply in your case.

Defence submissions – starting point

[25]   Your counsel, Ms Ives, submits that the appropriate starting point I should adopt should be in the vicinity of 18 – 20 years’ imprisonment. She submits that you played what should be assessed as being a “lesser” role in the organisation and offending because you:

(a)Were convicted on the basis of recklessness, as opposed to you having actual knowledge of the presence of the methamphetamine in the hotel room.

(b)You also had limited culpability in the context of the broader operation because:

(i)You performed what was a limited function in the syndicate, by occupying the apartment for 12 days; and taking only one box of methamphetamine to your co-offender by delivering it to him from the apartment to the apartment building’s lobby.

(ii)You were engaged in the syndicate through pressure, or that your involvement was a product of your own naivety, and that you were perhaps exploited (she notes that you appear to have relied upon your expenses only being paid every few days, and that you were only moved into the apartment where the

12     R v W [2020] NZHC 1369; R v White [2020] NZDC 10351; R v Care [2020] NZHC 2137; R v

Tran [2020] NZHC 2633; and McDonald v R [2020] NZHC 1509.

methamphetamine was being held once your co-offender C had left to travel to Australia). Ms Ives submits that this appears to have been more as a result of a command that you received, than a request.

(iii)Ms Ives further says that it appears that you did not receive any financial gain in the nature of remuneration.

(iv)Ms Ives says that your inability to influence those above you in the syndicate’s hierarchy and your lack of knowledge of the broader scale of the syndicate’s methamphetamine operation are all indicia of the level of your culpability, indicating a lesser role and lesser culpability should be the conclusion that I reach.

(c)Ms Ives says that the Crown submission that you were an “essential cog” for the syndicate, and that your role could be described as “significant” are unsubstantiated. She submits you had no operational or management function and you could not influence others in the syndicate. I agree and accept that submission, that you were unable to influence others in the syndicate.

The starting point I shall adopt

[26]   Possession of methamphetamine for supply carries a maximum sentence of life imprisonment,13 and as I have already said having regard to the quantity involved in your offending, your offending falls well within band five of the Zhang bands where the threshold is two kilograms of methamphetamine.14 The 193 kilograms of methamphetamine located in the apartment with its estimated $27 million street value and its potential harm to the community, in the order of $240 million, is a clear indication of the gravity of your offending and you, as I have said, clearly fall within band five.15

13     Misuse of Drugs Act 1975, s 6(1)(f); maximum penalty life imprisonment.

14     Zhang v R, above n 4, at [125].

15     Ministry of Health “Drug Harm Index 2016” at 34.

[27]   I have regard to analogous cases in setting the starting point and note that Zhang, although a tariff judgment, provides that such is not a substitute for “flexibility and discretion in setting sentences”16:

(a)Your co-offender W,17 received an end sentence of nine years, seven months’ imprisonment and a fifty per cent minimum term of imprisonment for his involvement in the importation of the methamphetamine with which you were involved. In his case I adopted a starting point of 24 years’ imprisonment.

(b)In Wan v R18 the offending involved 19.1 kilograms of methamphetamine. The offender’s role was characterised as being that of a lesser: “catcher” role; however there was an expectation of profit; the offender had little knowledge of the rest of the operation in that case. It was held the offender was not exploited in the same way an addict would be. A starting point of 15 years was applied, as was a 10 per cent discount to recognise his youth, previous good character, rehabilitative prospects, and the hardship upon him as a foreign national serving a sentence here in New Zealand. Applying those discounts resulted in an end sentence being imposed of 13 years and six months’ imprisonment.

(c)In Su v R,19 where an offender’s conduct was analogous in terms of role, in that case he being a courier and storeman, acting under direction, where he did not receive financial gain (although he was paid in methamphetamine), a significantly lower quantity (233 grams) was involved and the Court placed the offending in band two). There the Court adopted a starting point of five years’ and six months’ imprisonment and a discount was applied of 10 per cent for addiction. However in that case the offender’s addiction was determined as not

16     Zhang v R, above n 4, at [120].

17     R v W [2020] NZHC 1399.

18     Wan v R [2020] NZCA 328.

19     Su v R [2020] NZCA 128.

being causative of his offending. The end sentence in that case was a five year term of imprisonment.

(d)In R v Leung20 Justice Moore adopted a starting point of 26 years and six months regarding one of the offenders Mr Chiu, who had played a leading role in the importation of 157 kilograms of methamphetamine. Mr Chiu’s co-offender Mr Chiang, who purchased equipment and moved boxes to facilitate the importation of 109 kilograms of methamphetamine, was sentenced on the basis of a 21 year starting point.

(e)In McDonald v R21 this Court upheld a minimum period of imprisonment of seven years and a sentence of 13 years and nine months’ imprisonment, Mr McDonald having been sentenced in the District Court (which had adopted a starting point of 23 years) for his possession of 137.5 kilograms of methamphetamine for supply. In that case the offender was 42 years old, was a first time offender, and was considered to have played a low level but “significant” role.22

(f)In R v Tran23 I adopted a starting point of 21 years’ imprisonment, with Mr Tran having been convicted of possessing 109.6 kilograms of methamphetamine for supply. Mr Tran’s role was at the higher end of the “lesser” category, being more substantial than that of a mere catcher.

(g)I also note that in the District Court case of R v White, where Mr White was involved in the storage and concealment of 210 kilograms of methamphetamine, being part of the same 500 kilogram importation involved in the operation in which you took part, the Court adopted a starting point of 22 years. Mr White was responsible for concealing boxes containing methamphetamine behind a false wall at his business premises and was paid $20,000 a month over a period for doing so. He

20     R v Leung [2019] NZHC 3299.

21     McDonald v R [2020] NZHC 1509.

22     Zhang v R, above n 4, at [125] and [126].

23     R v Tran [2020] NZHC 2633.

had not been told what was inside the boxes and he subsequently assisted with the loading of the boxes onto a trailer at the request of his associates.

[28]   Mr Wilkinson, a condign and stern sentence is necessary to discourage the “pernicious trade” in methamphetamine.24 Having regard to the circumstances of your offending and to the comparable cases that have been cited to me and that I have referred to, I consider you to have performed a “lesser” role. However given the significant quantity of methamphetamine which you were found to have in your possession, and your action of distributing some of the methamphetamine to your co-offender, I shall adopt a starting point of 22 years’ imprisonment.

Stage 2: adjustment for personal mitigating and aggravating circumstances

Crown submissions

[29]   Ms Lummis for the Crown submits that the Crown are not aware of any aggravating factors personal to you. I agree.

[30]   Ms Lummis submits that you ought not receive any discount for remorse, due to the finding of guilty that came at the conclusion of your trial. Your equivocations in the pre-sentence report are a further factor, says Ms Lummis, including the blame you appear to have directed at your co-offender and your statement that you were only here in New Zealand to pick up some money for somebody else, that you were supposed to pick up $500,000.25

Defence submissions

[31]   Ms Ives on your behalf submits there are “a number of mitigating factors personal [to you] which allow [me] to give you a meaningful discount of your sentence.” She draws my attention to your age and ill health. In addition, she submits you have an exemplary record of good character, as evidenced by your lack of any previous criminal convictions either in New Zealand, the United Kingdom, or

24     Zhang v R, above n 4, at [19], with reference to R v Radich [1954] NZLR 86 (CA) at 87.

25     PAC report, at 4.

Thailand. Ms Ives highlights your personal tragedy and how that affected your life and how your offending is, as evident by the contents of the letters of support written by members of your family and friends, entirely out of character for you. Ms Ives also refers to your mother’s advanced age as being a factor to be accounted for in not imposing a disproportionately severe sentence on you. She also refers to the impact of the current COVID-19 pandemic and its restrictions on travel internationally, which is likely to affect you in a disproportionate manner and in general terms, and the fact that as a foreign national serving a lengthy term of imprisonment in New Zealand, that will be a hardship to you, greater than were you to be a New Zealand resident who was imprisoned here.

Personal Mitigating Features

[32]   Mr Wilkinson, as I have noted, at 62 years of age you have not previously been involved with the criminal justice system either here or in the United Kingdom or in Thailand. This record provides an indication of your good character. The letters of support I have received from your family and friends support that conclusion. Good character is a mandatory assessment for me to make under the provisions of the Sentencing Act.26 The Court of Appeal has stated:27 “Persons who have shown themselves as generally law-abiding citizens of good character are usually entitled to invoke their creditable record in mitigation when they come before the Courts.” Further:28 “[T]he justification for the discount for first offenders rests partly on recognition of human fallibility, and partly on respect for people’s ability to respond to the censure expressed in the sentence.” For your extensive record of good character29 and the fact this offending behaviour appears to have been an aberration, and having regard to your age at 62 years, I shall allow a 10 per cent discount from your sentence.

[33]   A discount may also be appropriate to reflect the particular challenges an offender ordinarily resident overseas will face when coping with cultural and social

26     Sentencing Act 2002, s 9(2)(g).

27     R v Howe [1982] 1 NZLR 618 (CA) at 629.

28     Taylor v R [2017] NZCA 574 at [24], citing Andrew Ashworth Sentencing and Criminal Justice

(6th ed, Cambridge University Press, Cambridge, 2015) at 211-212.

29     Manwaiti v R [2013] NZCA 88 at [18].

issues in a New Zealand Prison. I am however also mindful of the importance of maintaining parity in sentencing offenders, whether they originate from other countries or from within New Zealand. Consistency in sentencing is a key objective of the process.30 There is however appellate guidance stating that:31 “the isolation of, and denial of family support to, foreign nationals imprisoned for drug offending may be treated as a mitigating factor when it makes the sentence harder than usual to bear.” The Court of Appeal has observed: “discounts for foreign national status in cases of drug importation have been modest, as the offending is such that it carries an inherent risk of imprisonment for a lengthy period in a foreign country.”32 On the basis of this guidance, I determine that a moderate further five per cent discount is appropriate for your sentence.

[34]   Linked, but separate to this, I shall also account for the inability of your family to visit you during the period of imprisonment in the foreseeable future due to the restrictions of COVID-19 on the freedom of people and ability of people to travel internationally. In this regard I am guided by a recent Court of Appeal decision,33 which upheld a modest discount, accounting for a foreign national offender, being imprisoned here and separated from his overseas family and unable to be visited by his relatives. Mr Wilkinson, your family, or much of them, reside in the United Kingdom. Others reside in Thailand. It is unlikely your family will be able to visit you, due to the restrictions associated with COVID-19 and the travel restrictions that have been imposed by various countries. On that account I shall allow a further five per cent discount to your sentence.

[35]   These discounts then combine to produce a total discount of 20 per cent, which I shall allow from the starting point of your sentence.

30     R v Zhou [2009] NZCA 365 at [26].

31     Zhang v R, above n 4, at [163].

32     Keino v R [2019] NZCA 457 at [59].

33     Hayden v R [2020] NZCA 369 at [57].

Minimum Period of Imprisonment

Crown submissions

[36]   Ms Lummis for the Crown submits that I ought to impose a minimum period of imprisonment given the significant quantity of drugs and the commercial nature of your offending, and that this is a case warranting such a minimum period of imprisonment  for  the  purposes  of  accountability,  deterrence  or  denunciation.  Ms Lummis references your co-offender being required to serve a minimum period of imprisonment and submits that the sentence imposed upon you should apply parity in terms of the sentencing outcome as between you and your co-offender in this regard. Ultimately, Ms Lummis submits that a minimum period of imprisonment of 40 to 50 per cent may be considered necessary to meet the requisite principles of sentencing and the objectives of a minimum period of imprisonment.

Defence submissions

[37]   Ms Ives on your behalf submits that notwithstanding the significant quantity of methamphetamine which you were in possession of, your role and culpability was so minor, that a punitive minimum period of imprisonment is not necessary in your case. I do not accept that submission. The quantity of methamphetamine involved in your offending is a very significant consideration in this context of a minimum period of imprisonment. Ms Ives relies on R v White34 and Wan v R.35 I distinguish those cases on the basis of quantity. In White, a similar quantity as yours, but it involved some personal factors that had persuaded the Judge that in that case a minimum period of imprisonment was not justified. Ms Ives submits your personal mitigating factors militate against the imposition of a minimum period of imprisonment. In the alternative, she submits that were I to find a minimum period of imprisonment is necessary, it ought to be no greater than 40 per cent of your sentence.

Discussion

34     R v White [2020] NZDC 10351

35     Wan v R [2020] NZCA 328.

[38]   The Court of Appeal in Zhang emphasised that minimum periods of imprisonment must not be imposed as a matter of routine or in a mechanistic sort of way.36 The Court said that as a general rule, lengthy minimum periods of imprisonment are properly reserved for cases involving significant commercial dealing. The present is clearly such a case involving significant commercial dealing. The Court of Appeal further observed that it is:37 deterrence, denunciation and accountability that are likely to be at the forefront of decisions in drug cases involving the imposition of minimum periods of imprisonment.

[39]   Section 86 of the Sentencing Act 2002 relevantly provides that where a court imposes a sentence of more than two years’ imprisonment it may at the same time that it imposes sentence, order that an offender serve a minimum period of imprisonment that is longer than the period otherwise applicable under s 84(1) of the Parole Act 2002 if satisfied that that period is insufficient for the purpose of: holding the offender accountable for the harm done to the community by the offending; denouncing the offender’s conduct; deterring the offender or others from committing the same offence or a similar offence; or protecting the community from the offender.

[40]   Mr Wilkinson, I consider that your offending is sufficiently serious that serving the standard minimum period of one-third of your sentence before becoming eligible for release on parole would be insufficient38 to hold you to accountable for the harm done to the community by your offending.39 Given that you do not pose any significant risk of re-offending, the imposition of a minimum period of imprisonment is not necessary to protect the community from you on that account.40 While the Court will appropriately hesitate to impose a minimum period of imprisonment upon a defendant who presents a low likelihood of re-offending,41 I have nevertheless decided to impose a minimum period of imprisonment upon you. I do so because of your willing participation in a substantial commercial-scale drug importation operation which had the potential to cause very serious social damage to the New Zealand community.42

36     Zhang v R, above n 4, at [169].

37 At [171].

38     R v Brown [2002] 3 NZLR 670, (2002) 19 CRNZ 534 (CA) at [35].

39     Sentencing Act 2002, s 86(2)(a).

40     Section 86(2)(d)

41     Prasad v R [2020] NZCA 483 at [32]

42     Zhang v R, above n 4, at [263].

You were prepared to play a supporting role in this major drug operation in order to secure some financial benefit. Whilst your role as a temporary custodian of the methamphetamine was well below that of the more active and significant participants in the operation, nevertheless at the time you had sole responsibility for safeguarding the drugs in the apartment. You were playing an essential and important role in terms of the overall operation of the offending.

[41]    In my view your level of participation in such a major drug importation operation renders the standard parole period inadequate for the purposes of punishment, denunciation, and deterrence of others. For the sentence imposed to function as an effectivexx deterrence, it must send a clear message to anyone, including foreign nationals, contemplating becoming involved in the importation and distribution of commercial quantities of Class A controlled drugs into New Zealand, that their involvement in such an operation will render them liable to serve significant sentences of imprisonment here in New Zealand before becoming eligible for release on parole.

[42]   To be eligible for release after one third of your sentence, which in your case would be less than six years, would in my view constitute an insufficient response to your offending in the eyes of the community, a minimum period of imprisonment is required to confer a degree of reality on the sentence that I am shortly to impose upon you.43 Your personal mitigating factors are not so compelling as to require recognition by the Court by deciding not to impose a minimum period of imprisonment on you.44 I have determined to apply and impose a minimum period of imprisonment in your case of seven years, being 40 per cent of the sentence that I shall impose.

End sentence

[43]   Applying a 20 per cent discount to the sentencing starting point I have adopted, 22 years, will yield an end sentence of 17 years’ and six months’ imprisonment.

43     R v Gordon [2009] NZCA 145 at [15].

44     Shaw v R [2016] NZCA 110 [25]; and Fleming v R [2011] NZCA 646 at [22].

Sentence

[44]Please stand.

[45]   Mr Wilkinson: on the charge of possession of the Class A controlled drug, methamphetamine, for supply, I sentence you to 17 years and six months’ imprisonment.

[46]I impose a minimum period of imprisonment upon you of seven years.

[47]You may stand down.

[48]   I make an order pursuant to s 32(1) of the Misuse of Drugs Act 1975 for the forfeiture of all articles found to be in your possession at the time of your arrest.

Paul Davison J