The Queen v Stark

[2006] NZCA 190

IN THE COURT OF APPEAL OF NEW ZEALAND

CA104/06

THE QUEEN

v

ROBERT JOHN STARK

Hearing:25 July 2006

Court:O'Regan, Goddard and Gendall JJ

Counsel:P H Surridge for Appellant

S B Edwards for Crown

Judgment:31 July 2006 

JUDGMENT OF THE COURT

ALEAVE TO APPEAL OUT OF TIME IS GRANTED.

BTHE APPEAL IS ALLOWED.

CTHE SENTENCE IMPOSED IN THE HIGH COURT IS QUASHED AND IN ITS PLACE A SENTENCE OF THREE YEARS SIX MONTHS IS IMPOSED IN RESPECT OF EACH OF THE 13 CHARGES, TO BE SERVED CONCURRENTLY.

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REASONS OF THE COURT
(Given by Gendall J)

[1]       This is an appeal against a sentence of four years imprisonment imposed upon the appellant having pleaded guilty to 10 charges of importing a class B drug, two charges of conspiring to import such a drug and one charge of possession of a class B drug for supply.  All of the convictions related to the importation and the conspiracy to import, and possession for supply of the class B drug GLB, commonly known as “Fantasy”. As a party to a serious conspiracy to import (and to successfully do so) the class B drug over a period of about 15 months, the appellant was sentenced to a term of four years imprisonment.  He appeals against that sentence.

Essential facts

[2]       The background facts show that the appellant and another man named Justin Rys developed a system for importing “Fantasy” from a European destination.  It took place over a 15-month period.  Large amounts were imported through various devices, generally through the use of international couriers.  The amount imported was in liquid form concealed in bottles or cans addressed to fictitious people and addresses on the Kapiti Coast near Wellington.  Those addresses had been obtained and supplied by the appellant.  Packages sent to the addresses were uplifted, after delivery by a courier, by the appellant.  Approximately 165 litres of the drug was imported successfully over a total of 100 events, and the drug itself had an estimated street value of something between $1m-$2m.  The appellant’s associate conspirator was a body builder who used some of the drug for his own physical enhancement but, beyond any doubt, large amounts were distributed and sold to addicts and users on the street.  The appellant, himself, was addicted to the drug and received amounts of the drug having an estimated value of $30-$50,000.  That represented his reward for participating in the scheme.

Assistance to Police

[3]       After his arrest, the appellant made a full confession and signified his intention to plead guilty.  He identified the principal co-conspirator as Justin Rys.  He gave significant information to the police to enable inquiries to be undertaken.  He assisted with an electronic interception that targeted the co-conspirator Rys and he was co-operative in assisting the police apprehend the major player.  He signed a deposition outlining the degree of his offending and that of Mr Rys and indicated a willingness to give evidence at any future hearing involving the co-conspirator. 

[4]       The sentencing judge, Wild J, was aware of all of this, as well as the anticipated co-operation of the appellant, when he sentenced him.  Of course, the Judge could not know whether or not the appellant would keep his promise to later give evidence.  The sentencing judge imposed a sentence of four years imprisonment noting the serious facts which condemned and implicated both the appellant and Mr Rys.  The Judge accepted that the appellant was a middleman in the conspiracy hierarchy, with Rys being the principal offender and prime mover.

High Court sentence

[5]       The Judge had before him affidavit evidence as to the very serious deleterious effects of the drug Fantasy and observed how dangerous and potentially damaging it was.  He used as a guide to the range of sentence to be imposed the well-known Court of Appeal decision in R v Wallace and Christie [1999] 3 NZLR 159 (CA). The Judge placed the activities of the appellant as in the middle range of the major importation of class B drug, as well as being a retailer. He said that the appellant’s personal circumstances could be given very little weight in the circumstances of the serious and prolonged criminal activity. Despite the appellant not being the mastermind, it was sophisticated conspiracy. The Judge said that he proposed to take into account the guilty plea, confession and the co-operation provided by the appellant to the police.

[6]       The Judge took as a starting point a term of eight years imprisonment and allowed a discount to reflect what he said was the appellant’s co-operation and assistance to the police and guilty pleas.  It was obvious to the Judge that that assistance enabled the major player, Justin Rys, to be apprehended.  The appellant’s assistance included the willingness to later give evidence against the co-conspirator and, as events later turned out, the appellant did give evidence at the preliminary hearing of the charges against Rys.  Thereafter Rys pleaded guilty and his indictment did not have to proceed to trial.

Submissions

[7]       On behalf of the appellant Mr Surridge submitted that the Judge fixed the starting point of eight years at too high a level.  He said the Judge also gave insufficient discount for the exceptional features that applied. 

[8]       He submitted that the Judge was not able to reflect in the sentencing process possible future actions of the appellant which meant that, in the light of information now known, the allowance is now insufficient.

[9]       Mr Surridge further submitted that because of the appellant’s assistance to the police he has had to be placed under the Witness Protection Scheme and the time that he spends in prison is more harsh than otherwise would have been the case because of the security measures that have had to be imposed.

Discussion

[10]     It is well established that reductions in sentences may and should be given for assistance to the authorities in the detection and conviction of other offenders and it may apply even when that assistance is given after the initial sentence is imposed;  see R v Accused (CA293/92) (1993) 10 CRNZ 397, 402, Crime Appeal CA224/91 20 September 1991.  This would be particularly the case where there is a risk or danger to the person or those close to him or her in providing the assistance and information.  As was said in R v C CA319/99 25 November 1999 at [12]:

It is necessary to weigh the assistance given with the type and seriousness of the offending, the sentence that otherwise would be appropriate, the nature and value of the assistance, the situations in which it is given and the consequences.  In the end the sentence must be that which is appropriate in light of all of the circumstances including any assistance to the authorities.

[11]     We think the starting point of eight years adopted by the Judge was appropriate and well within the range.  This was a concerted ongoing conspiracy where major quantities of a dangerous drug were imported and a starting point which reflected the insidious and dangerous nature of the trade, the commercial dealing justified a starting point of eight years.  That reflected the appellant’s lesser role in the conspiracy which is apparent from the eventual sentence of Rys who was sentenced to 10½ years imprisonment although he faced 11 charges of importation and one of money laundering.  The reality, however, was that it was Rys together with the appellant who conspired over a lengthy period through an intricate scheme to import drugs and the major or prime mover although Rys, could not have achieved his ends without the appellant’s active involvement or assistance.

[12]     The real issue is whether the discount of 50% for the guilty plea and co-operation and assistance in apprehending and prosecuting Rys was sufficient.  We think that in the circumstances that were placed before the Judge it was.  It was a meaningful and very large discount.  However, the Judge was not to know, and could not give an allowance for the fact, that the appellant might make good his promise to give evidence against Rys. The Judge could not factor that contingency into the sentencing process. 

[13]     Now that that has happened, and realistically to have influenced the decision of Rys to plead guilty we think some further allowance now has to be given.  The assistance the appellant offered was high.  It put him in some jeopardy which it is said continues.  Evaluation of the value or worth of such assistance and the significance of it to the prosecution must always be a matter of measured assessment.  Whether or not such led to the apprehension of other criminals, as well as to further evidence against those already apprehended are to be weighed on the scales.  For the matters not able to be known to the sentencing judge, we consider a further allowance is required which we fix at 10%.  Having said that, we emphasise that because a prisoner is prepared to give evidence against a co-conspirator, whilst deserving of some discount, does not of itself require that such be outside the bounds of realism.  That is because it is necessary that a deterrent aspect be reflected for co-conspirators involved in major drug importation.

[14]     In the end the further allowance of 10% is appropriate by reason of the fact that the appellant made good upon his offer to give evidence.  He fulfilled it to the preliminary hearing stage.  We think that requires to be reflected in the ultimate sentence, in what can widely be regarded as an exceptional case.

Result

[15]     Accordingly, leave to appeal out of time is granted, the appeal is allowed, the sentence imposed in the High Court is quashed, and in its place a sentence of three years six months is imposed in respect of each of the 13 charges, to be served concurrently.

Solicitors:
Surridge & Co, Wellington for Appellant
Crown Law Office, Wellington