The Queen v The Queen

[2006] NZHC 169

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2005-085-1037

THE QUEEN

v

R

Hearing:         3 March 2006

Appearances: P V Paino with E Hall for the prisoner

G J Burston with C Boshier for the Crown

Judgment:      3 March 2006

ORAL RULING NO. 2 OF MACKENZIE J

[1]      Counsel have discussed the position in the adjournment since my earlier ruling on this matter.  Dealing with each of the four matters which were raised, the position can now be summarised in the following way.

[2]      As to the number of importations, the Crown schedule shows those cases where more than one package was uplifted at the same time.  Where more than one package was uplifted at the same time, on some occasions those had entered the country through the importation system on different dates.  The essence of the matter is that it is accepted that in total there were importations amounting to 100 packages. Some of those entered the country on the same date and some of them were uplifted

at the same time.  Those details are contained in the schedule.  I do not regard there

R V R (NO. 2) HC WN CRI-2005-085-1037  3 March 2006

as being any factual issues on that score which are in dispute, and I proceed on the basis of the schedule.

[3]      The second matter is that of the quantity involved.  Mr Paino says that any dispute with the quantity would not exceed 5%.  That is, of the total quantity of GBL

- that is, 159.3 litres successfully imported and 47.7 litres intercepted, a total of 207 litres - the extent to which the defence would dispute that figure would not exceed

5% of that total quantity.  I indicate that I would not regard that difference, if it were to exist, as significant for the assessment of the overall criminality for sentencing purposes.   I propose to proceed to sentencing on this aspect on the basis that the figures may be variable to the extent that I have indicated.

[4]      The third matter was the estimate of value.  I indicated that I placed primary importance on quantity and regard the indications as to value as of some assistance but not as affecting the sentence.   I note that the Court of Appeal in R v Fatu (CA 415/04  18  November  2005),  in  setting  guidelines  for  methamphetamine offending, said:

[26]      We have opted for bands based on objective criteria in preference to those used in Wallace and Christie; this given the indeterminacy of the Wallace and Christie categorisations.  We have decided that the quantity of the drug involved in the offending (rather than anticipated monetary yields) provides the  most  helpful  measure  of  culpability.    There are  significant problems with using estimated monetary yields, as Mr Kaye pointed out in his submissions, see [18] above.  As well, the prices at which drugs are sold are heavily influenced by their availability. Sentencing by reference to monetary yield would produce the perverse result that the greater the availability of a particular drug the lower the associated sentencing levels, see R v Aroyewumi and Others (1995) 16 Cr App R(S) 213 at 215. As well, the  prices  paid  per  point  of  methamphetamine  vary  considerably.  The material most recently made available to the Court suggested a range of prices between $50 - $350 per point.

[5]      The fourth matter was the respective culpability of Mr R   and Mr Stark. Having heard from Mr Paino, I take the view that the issues which he raises go essentially to an assessment of the respective culpabilities of the two offenders rather than to a challenge to the actual involvement of Mr R   in the events, in respect of any aspects which would have a material effect in the assessment of his criminality. Accordingly, I do not consider that a disputed fact hearing is necessary on this aspect.

[6]      In view of the fact that all of the matters have now been resolved and can be dealt with in the way I have indicated, I propose to continue with sentencing today.

“A D MacKenzie J”

Solicitors:

Paino & Robinson, Upper Hutt, for the prisoner

Crown Solicitor, Wellington, for the Crown