Thackray v The Queen

[2016] NZCA 23

IN THE COURT OF APPEAL OF NEW ZEALAND

CA11/2015
[2016] NZCA 23

BETWEEN	DAVID JONATHAN THACKRAY Appellant
AND	THE QUEEN Respondent

Hearing:	10 February 2016
Court:	Miller, Fogarty and Toogood JJ
Counsel:	K H Maxwell for Appellant I R Murray for Respondent
Judgment:	22 February 2016 at 10.00 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Toogood J)

1. Following a trial in the Auckland District Court, Mr Thackray was convicted by a jury of importing from Chile just under one kilogram of the Class A controlled drug cocaine.[1]  He was liable to a maximum penalty of life imprisonment.  On 15 December 2014, Judge Andrée Wiltens sentenced him to 12 years’ imprisonment.[2]  He appeals against that sentence on the ground that it was manifestly excessive.

The facts

[1]Misuse of Drugs Act 1975, ss 6(1)(a) and 6(2)(a).

[2]R v Thackray DC Auckland CRI 2014-092-556, 15 December 2015.

1. A courier named Peter Koeman carried the drugs into New Zealand in the form of 100 pellets, each containing approximately 10 g of cocaine.  Mr Koeman swallowed some of the pellets but hid most of them inside a travel pillow.  When he arrived at Auckland International Airport, he expected to be met by someone who would collect the drugs and pay him $10,000 for his services.  Mr Koeman was intercepted by customs officers, however, and 939.4 g of cocaine was recovered.

2. CCTV footage showed Mr Thackray in the arrivals area at the airport when Mr Koeman’s flight arrived.  Mr Thackray, an Australian citizen, waited at the airport for about five hours before returning to his hotel.  Later in the day, Mr Thackray went to an internet café and searched for Mr Koeman’s name on Google.  Evidence at trial established that, prior to the importation, Mr Thackray had communicated with various people in Thailand and South America and there was evidence that Mr Thackray had sent funds to South America to pay for Mr Koeman’s flight to New Zealand. 

The District Court

1. In determining the appropriate sentence, Judge Andrée Wiltens accepted the Crown’s suggested starting point of 12 years’ imprisonment, although he considered it to be lenient.  The Judge took as a reference point the starting point of 11 years’ imprisonment that had been applied for Mr Koeman, whom the Judge described as a mere courier.  In contrast, the Judge considered Mr Thackray to be involved to a far greater degree and to have had far more responsibility within the organisation responsible for the importation.  He based that view on the evidence he heard at trial.

2. Although it appears there was no direct evidence about what was to happen once Mr Koeman passed through New Zealand Customs carrying the drugs, the Judge inferred from the fact of Mr Thackray’s involvement in the organisation of the importation, and the fact he was waiting at the airport to meet Mr Koeman’s flight, that Mr Thackray would either be paying Mr Koeman the expected fee of $10,000 for his involvement or would be taking him to someone who would make the payment.  The Judge also considered that Mr Thackray would be involved in some way in the recovery of the drugs. 

3. The Judge declined to uplift the sentence on account of Mr Thackray’s previous convictions in Australia.  As to mitigating factors, he rejected the submission that Mr Thackray’s Australian citizenship meant he would have a hard time in prison.

The appeal

1. Ms Maxwell challenges the Judge’s sentence as being manifestly excessive because the starting point was too high and the Judge should have given credit for mitigating factors.  Counsel submits there was no proper basis for the Judge to differentiate between the involvement of Mr Thackray and Mr Koeman in the offending, arguing that the Judge had no direct evidence that Mr Thackray would be involved in paying Mr Koeman or recovering the drugs from him, and that the Judge was not entitled to draw inferences to that effect.

2. As to mitigation, Ms Maxwell argues that the Judge failed to give credit for personal factors, including the lack of any relevant criminal history, expressions of remorse and the fact that without a support network of family or friends in New Zealand the sentence will be a harsh one.

Discussion

1. We are satisfied that the Judge was entitled to draw the inferences he did as to the likely involvement of Mr Thackray in the recovery of the drugs after Mr Koeman’s arrival, and his involvement in payment to the courier.  Having presided over the trial, the Judge was entitled to give weight to the evidence of Mr Thackray’s involvement in the preparation for the importation and to infer that he would not have waited at the airport for five hours if his only purpose was to greet Mr Koeman.  As the Judge said, the guilty verdict means the jury was satisfied Mr Thackray knew Mr Koeman was bringing controlled drugs into this country.  It is evident from the background facts that Mr Koeman was a mere functionary while Mr Thackray was more of an organiser.  Uplifting the sentence by one year to distinguish between the roles of the two offenders was justified.

2. As Ms Maxwell properly conceded, personal mitigating factors are usually given little weight in sentencing for serious drug offending, which this was.[3]  While it may be accepted that Mr Thackray does not have family in New Zealand, that alone does not justify any discount from what is a proper sentence.  In our view the Judge was right to focus on the need for deterrent sentences for serious drug offending of this kind.

Result

[3]R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [12].

1. The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent