The Queen v Tshisa

[2006] NZCA 236

IN THE COURT OF APPEAL OF NEW ZEALAND

CA507/05

THE QUEEN

v

TSHILIOIZI JEFFREY TSHISA

Hearing:22 August 2006

Court:Chambers, Randerson and John Hansen JJ

Counsel:P J Davey for Appellant

M A Corlett for Crown

Judgment:31 August 2006 at 11 am

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by John Hansen J)

[1]       The appellant was indicted on one representative count of importing cocaine into New Zealand, five counts of exporting cocaine from New Zealand, and one count of importing methamphetamine into New Zealand.  Both cocaine and methamphetamine are class A controlled drugs.  He pleaded guilty to the importation of cocaine, four of the counts of exporting cocaine, and the count of importing methamphetamine.  On count 6, one of the exporting charges, he was discharged pursuant to s 347 of the Crimes Act 1961.

[2]       In the Auckland High Court Baragwanath J sentenced him to 13 years’ imprisonment on each of the cocaine charges, and eight years six months’ imprisonment for importing methamphetamine.  All sentences were concurrent.  Baragwanath J also imposed a minimum period of imprisonment of six and a half years (50%). 

Background

[3]       Between October 2003 and January 2004 the appellant arranged to import over two kilograms of cocaine into New Zealand.  He made arrangements for a number of people in South Auckland to receive packages from Brazil.  The cocaine was concealed in the covers of children’s books.  The appellant and his partner would collect the packages, paying recipients between $200 and $500 per package.  The potential street value of the cocaine was between $2.184 million and $3.64 million.

[4]       Between August 2003 and February 2004 the appellant arranged for three couriers, including his partner, to make four export drug runs into Australia.  The amount involved was 2.8 kilograms of cocaine with a street value of between $2.520 million and $3.920 million.

[5]       As a result of an interception warrant issued by the High Court, the Police became aware of communications between the appellant and a person in Thailand.  In the last of these, in August 2004, the appellant was advised a package had been sent to a specified address in Auckland.  New Zealand Customs intercepted this package, and it was found to contain a woman’s aluminium makeup case.  Concealed in a hollowed out cavity beneath the lining of the base of the case was a small plastic package containing methamphetamine.  It had a street value of between $60,000 and $100,000.

The sentence

[6]       Baragwanath J reviewed relevant authority and placed this offending towards the top end of class A drug offences.  The Judge accepted that in the whole of the Brazil/New Zealand/Australian operation it was unlikely that the appellant was the international mastermind.  But he recorded it was common ground that in New Zealand the appellant was the head of both the import and export activities.  He found the appellant to be the prime mover in New Zealand with clear links to those despatching the drugs from overseas. 

[7]       The Judge stated:

[16]     In R v Liava’a CA175/98 17 August 1998 importations of cocaine concerned over 4kgs shown on analysis to average 60 percent pure cocaine.  The Court of Appeal recorded and endorsed the Crown’s submission that the decisions indicated a top level for class A drug offending on a large commercial sale as in the vicinity of 16 to 18 years.  The context there was the conduct within New Zealand.

[17]     The sentence in R v Curtis [1980] 1 NZLR 406 was 16 years for importation of at least 2 kgs of heroin. That offending related to importation only. It was there said:

[W]hether or not you are at the top of the tree you must be in its highest branches

Metaphors, while helpful, have to be kept in context and, as I have said, I do not place you as a prime mover of the whole of the business between Brazil and Australia.

[18]     Nevertheless the sustained nature of your offending, the fact that there was organised and successful importing through a mechanism and group of people whom you got together and organised in successful exporting, they are couriers whom you assembled, and the addition of methamphetamine offending which is discrete in many ways, leads me to accept the Crown’s submission that a starting point of the range  of 16 to 18 years is appropriate

[8]       The Judge took a starting point of 17 years in prison, and allowed a deduction of four years for the guilty plea, coupled with expressions of remorse, giving a sentence on each of the cocaine counts of 13 years’ imprisonment. 

Submissions

[9]       Mr Davey referred to the decision of this Court in R v Davis & Collinson CA440/04 20 October 2005, and accepted the sentencing ranges for the categories of class A offending set out in that case.  In fact, he was relying on the categories set out in R v Wickremasinghe HC AK T013408 28 March 2003 as set out in R v Davis & Collinson at [49].

[10]     However, he argued that the overall starting point adopted of 17 years by the Judge was too high.  While he accepted the appellant played the main role in New Zealand, he submitted that the Judge was wrong in classifying his offending at the top level.  Mr Davey submitted his role was that of an intermediary who received a fee for acting as a conduit in moving cocaine between Brazil and Australia, and no more.  He submitted that the case of the appellant should be distinguished from those who reap the substantial profits of the illicit drug trade.

[11]     He also submitted that the Judge was wrong to treat the export of drugs into Australia as an aggravating factor, submitting it was irrelevant on the basis of R v Prickong [1990] 1 NZLR 5 (CA).

[12]     He further submitted the starting point of 11 years for the methamphetamine charge was excessive and that, based on the sentencing bands in R v Fatu [2006] 2 NZLR 72, a starting point of between three and a half and ten years was appropriate.

[13]     Mr Davey took no issue with the allowance for the guilty plea and remorse, but submitted that if the correct starting point of around 13 years had been adopted the appropriate final sentence should have been in the range of ten to 11 years.

[14]     Notwithstanding that there is no disparity argument raised, he submitted that this would be consistent with the sentencing of Mr Davey (one of the couriers) to six and a half years’ imprisonment and Ms Topia, the appellant’s partner, to eight years nine months’ imprisonment.

[15]     Finally, he submitted that the non-parole period should remain at fifty per cent of any reduced sentence.

[16]     For the Crown Mr Corlett submitted that the starting point adopted by Baragwanath J was correct.

[17]     He submitted that the real focus of inquiry should not be whether there were other persons higher up in the hierarchy than the appellant, but what it was the appellant was responsible for.

[18]     He submitted the appellant’s role was crucial to the importation into New Zealand of more than two kg of cocaine, and the exportation of some 2.8 kg to Australia (predominantly being the same cocaine previously imported).  Mr Corlett submitted that the appellant appeared to have been solely responsible within New Zealand for the importation of the methamphetamine.  As he put it:

There is no one else in New Zealand who could possibly rival the appellant in terms of being the prime mover of the drugs.

[19]     He also submitted that it was obvious that those who were primarily responsible at the international level must have reposed considerable trust and confidence in the appellant, which supported the Judge’s assessment of his culpability.

[20]     Mr Corlett also submitted that the appellant’s submissions were misconceived.  He accepted the appellant was not responsible for the manufacture and exporting of drugs from Brazil, but he was not being sentenced for that.  He was for sentence for importing the drugs into New Zealand and exporting them to Australia.  Mr Corlett submitted it was clear the appellant was the prime mover in relation to that, and the other recipients played quite minor roles.

Discussion

[21] We are satisfied that the approach of the sentencing Judge set out at [7] above is correct.

[22]     In our view, Mr Davey has incorrectly focused his submissions on the appellant’s place amongst the hierarchy of this drug dealing cartel.  In R v Liava’a & Ors CA175/98-179/98 17 August 1998 this Court stated at 4:

When comparing different Class A drug for sentencing purposes, care is needed in relation to the basis of such comparison.  While the case may be such that no general distinction can properly be made between heroin and cocaine, weight or volume must be considered in light of how particular drugs and formulations of them are administered, purity, potency and the like.  Value, if capable of accurate assessment, generally could be expected to reflect those factors, but experience has shown how difficult it is to obtain reliable values for quantities of narcotics.  And in all cases the circumstances of the offending are to be considered.

We take the view that the Judge was right when he regarded the decisions to date as indicating a top level for Class A drug offending on a large commercial scale in the vicinity of 17 – 18 years.  In the course of argument Mr France accepted that to be the case.  No doubt, in cases having features of grave aggravation even higher sentences will be open and will attract even the maximum of life imprisonment as has already occurred with some repeat offenders, but we are not here concerned with such a case.

[23]     The primary focus in sentencing for class A drug offending must be the seriousness of the offending and the culpability of the offender.  This is established by reference to the number of offences, the quantity, quality and value of the drugs involved, and the extent of the offender’s involvement.

[24]     In this case the importation count was representative.  There were a large number of individual importations during the period covered by the indictment.  The appellant imported cocaine in excess of two kg with a purity of 60 to 80%.  The estimated street value was between $2.184 million and $3.640 million.  The methamphetamine had a street value of between $60,000 and $80,000.  In relation to the export counts it appears the Judge may well have been generous to the accused as the summary of facts gives a higher figure than that taken by him.  Approximately 2.8 kilograms was exported with a street value of between $2.520 million and $3.920 million.

[25]     The extent of the appellant’s involvement is made clear by the matters referred to in the Crown’s submission at para 11:

11.1recruiting a number of people to act as recipients of packages containing drugs.

11.2collecting some of the packages of drugs from the recipients and paying them for their trouble.

11.3recruiting Topia to act as a drug courier to Australia.

11.4recruiting Davey to act as a recipient of packages containing drugs.

11.5instructing Davey in relation to the procedure to be adopted on receipt of a courier package from Brazil.

11.6recruiting Davey to act as a drug courier to Australia on two occasions.

11.7arranging and paying for the travel for Davey’s two drug runs to Australia.

11.8liasing with Australian contact (Onwuji) in relation to the arrival and movements of Davey on the second drug run.

11.9recruiting Apisai to act as a drug courier to Australia.

11.10arranging and paying for the travel of Apisai’s drug run to Australia.

11.11liasing with Australian contact (Onwuji) in relation to the arrival of Apisai in Australia

11.12arranging for the importation of methamphetamine.

[26]     In the light of those accepted facts we are in agreement with Baragwanath J’s assessment of the appellant’s role as the prime mover in New Zealand.   Such an assessment was inevitable.  We do not accept the submission that because there is no evidence that the appellant shared in the profits of this invidious trade he is to be treated more leniently.  There are two reasons for this.  The first is that it is usually impossible for the authorities to ascertain who received the profits from an international drug cartel.  Given the ability of the appellant to pay for airline tickets, accommodation and other matters, he clearly had access to considerable sums of money.  The second is that those who accept responsibility to organise large scale drug importing, or exporting, must expect to suffer the obvious consequences, notwithstanding there is no proof of actual profit to them.

[27]     Nor do we accept the submission that the fact the drugs were not for consumption in New Zealand, but for export to Australia, is either a mitigating or a neutral feature.  The reality is the appellant pleaded guilty to four counts of exporting class A drugs.  As Baragwanath J noted:

It must not be thought the New Zealand Courts will allow this country to be used as an entrepôt for the receipt of imported drugs and their export and treat the transaction as though it were only an import one.

[28]     Liava’a was a case involving approximately four kilograms of cocaine averaging 60% purity.  There were four importations.  That may be contrasted with the present case where there was a slightly lesser amount of the drug, but representative counts of importing and the three counts of exporting.  As well, the purity here was between 60 and 80%.

[29]     The representative nature of the importations is relevant to culpability.  See R  v Xie CA397/05 8 August 2006.  In Liava’a this Court said that a starting point before allowances for mitigating factors of 15 to 16 years for principal offenders in the most serious category must be regarded as below the level indicated by the authorities.

[30]     We are satisfied, therefore, that given the large scale nature of this importation and export, the appellant’s critical role in this and the discrete methamphetamine offending, the starting point of 17 years was clearly available to the sentencing Judge.

[31]     It follows that the sentence is not manifestly excessive and the appeal is dismissed.

Solicitors
Crown Law Office, Wellington