R v Williams
[2018] NZHC 2731
•18 October 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-004-7162
[2018] NZHC 2731
THE QUEEN v
BRYAN WALTER THOMAS WILLIAMS
Hearing: 18 October 2018 Appearances:
J Murdoch for Crown
M S Gibson and S Brickell for Mr Williams
Sentence:
18 October 2018
SENTENCING REMARKS OF PETERS J
Solicitors: Meredith Connell, Crown Solicitor, Auckland
Counsel:M S Gibson, Auckland S Brickell, Auckland
R v WILLIAMS [2018] NZHC 2731 [18 October 2018]
[1] Mr Williams, you are for sentence having pleaded guilty to one representative charge of money laundering.
Offending
[2] Your offending arises from the matters for which I have just sentenced Mr Ralph Wilk. Put simply, as I understand it, your role was to deliver cash from those buying the Wilks’ cocaine to the Wilks themselves.
[3] You met one or both of the Wilks on various occasions between 17 November 2016 and 13 July 2017, during which time you gave them an estimated $400,000 in cash.
[4] You also assisted them in other ways, and involving other sums. First, the Wilks told you they would rather be paid in US, rather than New Zealand, dollars. On 18 November 2016, you told Mr Ryszard Wilk that, although it would not be possible to pay in US dollars, you might be able to arrange someone to convert the funds. When that did not work out, you indicated to the Wilks that you could convert the money or some of it yourself and, on 19 November 2016, you gave Mr Wilk the US dollar equivalent of NZ$15,000.
[5] Then, on 6 March 2017, you remitted €10,000 to an overseas bank account on the Wilks’ behalf, in two lots of €5,000.
[6] On 13 April 2017, the police executed a search warrant at your home in Whenuapai and in the course of that they found $15,000 cash in your car. This cash was also due to be given to the Wilks.
[7] On 20 June 2017, Mr Wilk was seen handing you a bag which was later discovered to contain $51,800. You were to remit this to Poland, although the police seized the cash before you could do so.
[8] All up, the cash involved in these various transactions which, in one way or another you had in your possession, totalled $481,000.
Personal circumstances
[9] Turning to your personal circumstances, Mr Williams you are a 53-year-old builder, living in Auckland.
[10] You have been employed by a building company for several years now and I have a reference here from a Mr Scott who speaks very highly of you and the value he places on you as a reliable, honest and dedicated employee.
[11] You have a lengthy criminal history, but it is fair to say the offending is at the lower end of the scale and you told the writer of the Provision of Advice to Courts report that you are no longer using illegal substances, plainly a change for the better if it is true. Your history is such that Corrections think you are at a medium to high risk of reoffending but you are not a violent person and so are assessed as being at low risk of causing physical harm to others.
[12] You and your wife have been together for a very long time – 27 years; you have two children; and, as I have said, are in employment.
Approach to sentence
Starting point
[13] The first step in sentencing you is to identify what we call the starting point which is the sentence considered appropriate for the particular offending.
[14] The second step is to take account of matters – aggravating or mitigating – that are personal to you.
[15] The third step is to give you the discount to which you are entitled for pleading guilty and in that way we arrive at the end sentence. The short point Mr Williams is that you will not know your sentence until I get to the end of this process.
[16] Money laundering is a serious offence, punishable by up to seven years imprisonment. Money laundering for those who supply class A drugs is particularly serious because it makes it so much easier for them to do business and to conceal the proceeds of their offending.
[17]The important facts in your case are:
(a)The sums involved. As I have said $481,000, of which only a very modest sum was converted – about $30,000 – plus another $51,800 that might have been on its way to Poland. The other $400,000 you simply carried it from point A to point B.
(b)The period of your offending which was sporadic but over a nine-month period;
(c)The principal offending was a significant criminal undertaking, entailing the supply of a large quantity of cocaine.
(d)Your role, which I have already described.
(e)Your knowledge – you knew this cash was from drug dealing. It is not a case of recklessness but a case of knowledge.
[18] Your counsel, Mr Gibson, submits that the appropriate starting point is no more than two years, six months’ imprisonment. He submits that you were merely a “money carrier” and that your lifestyle and the state of your financial affairs is evidence that you gained nothing of significance for your actions. The extent to which you benefited is unclear. You have acknowledged receiving at least two payments of $1,000 each. Frankly that is trivial given the risks you were taking. Mr Gibson also points out that you had no connection with other members of the Wilks’ wider group or links to any other group or gang.
[19] Crown counsel contends in her submissions that three years is an appropriate starting point. But quite rightly she accepts that, although overall you were in possession of several hundreds of thousands of dollars, the amount of money that you actually laundered was modest. In fact, the Crown calculates the sum exchanged to be in the region of NZ$30,726. The balance of some $450,000 is substantial and is still relevant, but the modest sum actually laundered is an important matter to bear in mind. Crown counsel very fairly acknowledged this morning that her proposed three-
year starting point would be at the top of the range, bearing in mind all the matters to which I have just referred.
[20] As you will have heard me say when I was speaking to counsel, I have read all the cases to which they have referred me and more besides.1 I have put the greatest weight on those where modest sums were laundered and tried to work from that to an appropriate starting point bearing in mind the additional sums you actually had passing through your hands.
[21] In R v Simanu, the Court adopted a starting point of two years, six months for one offender, who seems to have laundered almost $280,000 and a starting point of one year, eight months for another. That lower starting point was in respect of an offender involved in laundering $85,000.
[22] I have also had regard to R v Beckham and R v Henry. The relevant starting point in Beckham, for Ms Taylor, was two years, and was two years, six months for Ms Henry in a case involving more than $300,000.2
[23] As I say, I have also read all the cases that I have been referred to by counsel but they tended to me to involve much more substantial sums and I have discounted them accordingly.
[24] Having regard to these cases, and bearing in mind the modest sum you exchanged or remitted and the lack of financial reward, I consider a starting point of between two years and two years, six months would be appropriate and I would take that mid-point of that of two years, three months.
Personal factors
[25] Turning now to personal factors relevant to you, the Crown do not seek an uplift for your prior convictions and I do not propose to give you one. Plainly, however, your history rules out a discount for prior good character.
1 R v Wallace CA415/98, 16 December 1998; R v Sorby HC Auckland T22561, 30 May 2003; R v Simanu HC Auckland CRI-2008-004-20453, 16 December 2010; R v Beckham HC Auckland CRI-2008-404-29112, 12 August 2011; R v Henry [2015] NZHC 1684; R v Parao [2016] NZHC 1105; R v Chase [2018] NZHC 1022; R v Le [2018] NZHC 2199.
2 R v Beckham, above n 1; and R v Henry, above n 1.
[26] I propose to increase the starting point because you offended on parole. As I said to counsel, I think three months for that is too high simply because every increase or discount to a starting point has to be kept proportionate. So, as I said to counsel, I propose to add one month for the offending on parole.
[27] Mr Gibson also urged that you should receive a discount for assistance given to the police. Whether that assistance was offered or proved to be of value has been hotly contested this morning. In the circumstances and, on the information I have got, I am not able to reduce the starting point for assistance. I have offered Mr Gibson a disputed-facts hearing on that matter but he has declined that in the circumstances.
Guilty plea
[28] Your guilty plea came on the eve of the trial but that was the same for Mr Wilk. I gave him a discount of 15 percent and that is what I am going to give you.
[29] The end result of all of this is that I am at an end sentence of a fraction under two years. That means I have to decide whether to impose a sentence of home detention or to impose a sentence of imprisonment. I have decided to impose a sentence of home detention. The reason for this is that you have largely been compliant with prior sentences; you are in employment; you have a child who could well do with your assistance at home; and I am required to impose the least restrictive sentence appropriate in the circumstances.
Sentence
[30]So, for that reason would you stand please.
[31] On the representative charge of money laundering, I sentence you to 12 months’ home detention at 9 Trig Road, Whenuapai, Auckland. That is to be served on the standard conditions.
[32] I discharge you on all remaining charges, being two charges of money laundering and one charge of participating in an organised criminal group, as set out in the Crown Charge Notice dated 25 September 2018.
[33]Thank you. Please stand down.
Peters J
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