The Queen v Peric

[2007] NZCA 471

IN THE COURT OF APPEAL OF NEW ZEALAND

CA286/07
[2007] NZCA 471

THE QUEEN

v

MILADIN PERIC

Hearing:18 October 2007

Court:Chambers, Randerson and Williams JJ

Counsel:P J Kaye for Appellant

J M Jelas for Crown

Judgment:30 October 2007 at 2.30 pm

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.

BThe sentence of 7 years 3 months imprisonment is quashed and a sentence of 6 years 3 months imprisonment is substituted.

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REASONS OF THE COURT

(Given by Randerson J)

[1]       The appellant was sentenced to 7 years 3 months imprisonment after pleading guilty in the High Court to one charge of importing the class A controlled drug cocaine.  The sentencing Judge, Asher J, adopted a starting point of 11 years 3 months imprisonment which he then reduced by 35 per cent to 7 years 3 months in view of the appellant’s early guilty plea, lack of previous convictions, positive references and remorse.

[2]       Subsequent to the appellant’s sentencing, his counsel learned that the appellant had offered assistance to the police prior to sentencing.  It seems Crown counsel was not aware of this fact at the time of sentencing and it is clear that the issue was not drawn to the attention of the Judge.

[3]       The sole issue on this appeal is whether the discount adopted by the Judge would have been greater had he been aware of the assistance rendered by the appellant.

[4]       In a letter provided by the police to the appellant’s counsel after the sentencing it is confirmed that the appellant agreed to travel with police and customs officers to a Pacific country in an attempt to make a controlled delivery of cocaine to a man named by the appellant.  The New Zealand Police sought assistance from the Australian Federal Police because it was believed the intended final destination of the drugs was in Sydney.  For reasons which have not been given to us, the assistance of the Australian Federal Police was not available and the controlled delivery was abandoned.  However the intended recipient of the controlled delivery was spoken to by the police in the Pacific nation and his details were forwarded to the Australian Federal Police. 

[5]       The police commented in the letter provided to counsel that while the appellant was “caught red handed”, the assistance he provided had proved “valuable”.  Had the Australian Federal Police been able to co-operate, the letter indicated that an international ring of drug couriers could have been identified. 

[6]       Against this background, Mr Kaye submitted on the appellant’s behalf that an additional discount of 10 to 15 per cent was appropriate.  That would result in a total discount of 45 to 50 per cent.  For the Crown Ms Jelas acknowledged it would not be inappropriate for a discount of this level to be allowed. 

[7]       This Court has indicated on a number of occasions that substantial discounts may be expected where assistance is provided to the authorities in drug trafficking cases.  Much depends on the level of assistance but overall discounts reflecting early guilty pleas and substantial assistance to the authorities have resulted in discounts of up to 60 per cent: R v Hadfield CA337/06 14 December 2006 and R v Shaida and Graaf [2007] NZCA 43.

[8]       This case does not call for a discount of that order, which would normally only follow when the offender gives evidence for the Crown.  But we accept that some additional discount is warranted given the appellant’s willingness to expose himself to the risk of taking part in a controlled delivery to a person whose identity he disclosed to the police.  But for the unavailability of assistance from the Australian Federal Police, the appellant’s actions may have resulted in the identification of one or more offenders engaged in international drug trafficking.

[9]       In the circumstances, we consider an additional discount of 10 per cent is appropriate and would have been allowed if the appellant’s assistance to the authorities had been drawn to the attention of the sentencing Judge at the time of sentencing.

[10]     A total discount of 45 per cent amounts to five years imprisonment which results in an end sentence of 6 years 3 months imprisonment.  The appeal is allowed and the existing sentence quashed.  A sentence of 6 years 3 months imprisonment is substituted.

Solicitors:
Crown Law Office, Wellington