The Queen v David John Blaikie

[2002] NZCA 166

IN THE COURT OF APPEAL OF NEW ZEALAND CA 91/02

THE QUEEN

V

DAVID JOHN BLAIKIE

Hearing:	16 July 2002
Coram:	McGrath J Robertson J Gendall J
Appearances:	J H Wiles for the Appellant J M Jelaś for the Crown
Judgment:	17 July 2002

JUDGMENT OF THE COURT DELIVERED BY GENDALL J

1. The appellant was found guilty in the High Court at Auckland of conspiracy to import into New Zealand a controlled drug.  The nature of the drug involved was unknown, although either Class A or Class B.  The appellant was sentenced on the basis that it was a high value drug which, had the conspiracy to import been implemented, would have yielded something in excess of $800,000.  He was sentenced to five years imprisonment and appeals against that sentence.

2. The appellant had earlier been found guilty by another jury in the District Court of possession of Class B methamphetamine for supply.  He was then sentenced, on 27 July 2001, to a term of two years 10 months imprisonment.  His sentence of five years imprisonment was imposed in the High Court on 11 February 2002.

3. Upon sentencing the Judge said that he did not propose to impose a cumulative term, and directed that the sentence of imprisonment being imposed was to run from that date, 11 February 2002.  The Judge said:

   I will not sentence you to a cumulative term of imprisonment but the sentence that I will impose on you will run from today and will take into account the time that you have already spent in prison.

4. Counsel for the appellant argued that the effect of the Judge’s sentence was to impose a concurrent sentence but the outcome for the appellant is that he does not obtain the full benefit of a concurrent sentence.  It was contended that if the appellant had been sentenced to five years imprisonment earlier then his eligibility for parole and release would have been earlier than now arises.  Currently his parole eligibility date is 16 July 2003 with a final release date of May 2005.  We are told that if a calculation of a prison term for five years was made beginning on 27 June 2001 (though this date is an error because he was originally sentenced on 27 July 2001) and a parole eligibility date of 26 March 2003 arises and a final release date of 31 August 2004 is calculated.  The difference is, for parole eligibility, therefore said to be four months and for final release date it is said to be nine months.

Background

1. The conspiracy to import drug conviction on which the appellant was sentenced involved serious large scale drug offending.  Whilst the Judge accepted that the appellant was not the prime participant in the conspiracy, he being a man named Karpivicius, nevertheless the conspiracy or plan was carefully contrived and the appellant played rather more than a minor role.  He was very much a lieutenant to the extent of travelling overseas to pursue an errant courier, who had been engaged by the conspirators.  On its own the conspiracy conviction warranted a substantial term of imprisonment.  There were no real mitigating features and no allowance could have been given to the appellant for a guilty plea.  Any delay in the matter proceeding to trial arose inevitably out of the not guilty plea and matters proceeding to the Court of Appeal.

2. The conviction for possession for supply of methamphetamine arose out of facts that came to light upon eventual apprehension on the conspiracy charge.  It was a matter separate however from the conspiracy.  However the sentencing Judge was required to look at the two crimes on a totality basis reflecting this in the ultimate sentence imposed.  We do accept that submission that he intended the sentences to be truly concurrent in the sense that Mr Wiles suggests.  The sentence on the conspiracy charge could not be backdated, and if not to be cumulative, would take effect from the date of its imposition.  However in fixing that term the Judge said he took into account the time already served.  That is what he was required to do.  It was a period of approximately six months.  He did not, as Mr Wiles submits, sentence the appellant on the basis that the five year term would have been the appropriate concurrent sentence if imposed at the time on which the appellant was earlier was sentenced.

3. The proper approach is well known.  What is required is for the sentencing Judge to place himself in the hypothetical position so as to fix what would be appropriate were sentence being imposed on all offences at the earlier time.  The sentence has to reflect the totality of the offending at that time: for example see R v Crime Appeal CA375/91 (CA375/91, 28 February 1992); R v Bowen (CA64/92, 28 May 1992).  The resulting sentence is to be tested against the hypothesis of a single sentencing for all convictions.  That is what we consider the Judge has done.

4. Viewed in that light, a sentence of six years imprisonment would have been well justified had sentencing taken place on the earlier date.  When fixing a term of five years imprisonment we do not see the Judge was doing anything other than reflecting that if it had been imposed earlier it would have been for five years six months.  That is clear from his remarks that he would take into account time already spent in prison.

Judgment

1. The sentence imposed was fully justified and the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington