The Queen v Zygmunt Suwala

[2003] NZCA 211

IN THE COURT OF APPEAL OF NEW ZEALAND

CA454/02

THE QUEEN

v

ZYGMUNT SUWALA

Hearing:25 August 2003

Coram:Glazebrook J
Fisher J
O'Regan J

Appearances:  R A A Weir and J R C Lees for Appellant

M F Laracy for Crown

Judgment:28 August 2003 

JUDGMENT OF THE COURT DELIVERED BY O’REGAN J

[1]       Mr Suwala pleaded guilty in the District Court to one charge of possession of a Class B controlled drug (amphetamine), for supply.  He was sentenced to a term of imprisonment of 7½ years.  He has appealed to this Court against that sentence, on the ground that it was manifestly excessive.

[2]       Mr Suwala is Polish, but he travelled to New Zealand on a Swedish passport.  On 25 July 2002, he arrived at Auckland Airport, having travelled from Sweden.  He was searched, and was found to have almost 1 kilogram of amphetamine contained in rubber washing gloves concealed underneath the inner sole of each of his boots.  The amphetamine was about 72% pure, and the police estimated that if it were cut to a 10% purity it would have a street level value of about $750,000.

[3]       The Crown accepted that Mr Suwala had pleaded guilty to the charge at an early opportunity.

[4]       In the District Court, the Judge recounted the facts outlined above.  He referred to the pre-sentence report in which it was stated that Mr Suwala was a courier who had agreed to bring the amphetamine to New Zealand for a fee of $10,000.  He noted that the maximum penalty for the charge was 14 years imprisonment and outlined the sentencing principles of deterrence, denunciation and protection of the community from drugs.  He mentioned the degree of premeditation and planning involved in the commission of the offence, which he described as an aggravating circumstance.  He accepted the submission by Mr Suwala’s counsel that the offending was not sophisticated in relation to other similar offending, but said that this lack of sophistication did not detract from the fact that this was a planned and premeditated action. 

[5]       The Judge referred to the starting point of eight years imprisonment, which he said had been accepted by Mr Suwala’s counsel.  He noted the Crown had submitted for consideration a number of cases in which higher starting points had been taken for the importation cases to which the Crown referred.  He said that the starting point in importation cases to which the Crown referred was between 9 and 12 years, whereas in the case of R v Yee (CA169/01, 29 November 2001), involving possession for supply, the starting point was eight years.  He therefore took that as the starting point in the present case because he said it incorporated a consideration of the aggravating factors.

[6]       The Judge then considered the mitigating circumstance, noting that the early plea of guilty had saved costs and work for the police and the authorities.  He gave a discount of six months as credit for the guilty plea and sentenced Mr Suwala to a term of imprisonment of 7½ years.

[7]       In this Court, counsel for the appellant argued that the Judge was right to reach a starting point of eight years, based on R v Yee but had failed to give adequate credit for the mitigating circumstances, being the early guilty plea, the lack of sophistication in the operation and the low level of involvement.  He argued that the discount of approximately 7% for the early guilty plea was too low and a discount of approximately two years should have been given, thus reducing the sentence to a term of imprisonment of six years.

[8]       Counsel for the Crown accepted there was inadequate recognition of the guilty plea in the credit which the Judge gave to Mr Suwala, but said this did not mean the sentence was manifestly excessive.  The Crown submission was the Judge should have adopted a higher starting point of 10 years, and if such a starting point had been adopted and a generous 25% discount had been given for a guilty plea, the end result would have been a term of 7½ years, which was what the Judge imposed.

[9]       In our view, Crown counsel was right to concede that the discount for the early guilty plea was too low.  We are satisfied that even in cases where conviction is almost inevitable (as it was in this case), it is appropriate to recognise an early guilty plea by a meaningful reduction in sentence.  If that is not done, there is a real risk that offenders facing a very strong Crown case will still put the Crown to proof, because there is little to be lost by doing so, and a possibility, no matter how slight, of a not guilty verdict.  However, we are satisfied that the Judge was entitled to take the view that the lack of sophistication in the offending, and Mr Suwala’s limited role, were not additional mitigating factors in view of the degree of premeditation and the significant amount of drugs involved.

[10]     That means that the focus of this appeal is on the question of whether the final sentence of 7½ years was manifestly excessive.  That turns on the issue of whether a higher starting point may have been appropriate.

[11]     As already indicated, the District Court Judge relied on the decision of this Court in R v Yee.  That was a case of possession for supply of a Class A drug, cocaine, which had been sent from Peru and which was intercepted by Customs.  It had an estimated street value of $950,000.  Mr Yee was convicted after a jury trial.  This Court observed that it was difficult to assess the culpability of Mr Yee – he could have been high in the distribution chain or simply a courier for others, but this Court found the Judge was not obliged to minimise his role.  The sentencing Judge had set a starting point of eight years.  As there were no mitigating factors, he sentenced Mr Yee to eight years imprisonment.  This Court found the sentence was within the range available to the Judge and dismissed the appeal.

[12]     Crown counsel in this case argued that Mr Suwala’s culpability was better considered in relation to cases involving charges of importing, given that his possession of the drugs was as a result of his involvement in their importation into New Zealand.  We were referred to the following cases:

a)R v Watkins (CA 354/97, 26 February 1998).  The Court accepted that a starting point of nine years was appropriate in relation to a count of importing a Class B drug, MDMA/ecstasy, with an estimated street value of about $470,000.

b)R v Lam (CA 282/02, 22 October 2002).  This also involved importation of MDMA/ecstasy.  The appellant was stopped at Auckland Airport in the course of importing ecstasy tablets having a value assessed at between $425,000 and $850,000.  In the District Court a starting point of 12 years was taken, and a 2½ year discount was allowed because of a prompt guilty plea.  In this Court, the appeal against sentence was dismissed.  The Court observed both the starting point and ultimate sentence were consistent with earlier authorities, and justified by the gravity of the offending.

c)R v Chan (High Court Auckland, T0123402, 5 February 2003, Laurenson J).   Again, this was a case involving the importation of ecstasy.  The estimated value was between $1.2m and $1.6m.  The appellant was a courier, but as with the present case, the Judge considered there had been a high level of premeditation.  The High Court Judge took a starting point of 13 years reduced to eight years in view of the mitigating factors, including a guilty plea.  The Judge also imposed a minimum non-parole period of 4½ years.

d)R v Scanlan (CA 556/99, 12 April 2000). Mr Scanlan had been convicted of importing MDMA, conspiring with others to supply MDMA and attempting to possess MDMA.  He was sentenced to eight years imprisonment on the first count and convicted and discharged on the remaining counts.  This Court said in view of the credit given to Mr Scanlan for his lack of previous convictions for drug offending, the sentencing Judge must have commenced from a starting point of 9 or 10 years, and found that was within the range.  The Court dismissed the appeal against sentence.

[13]     Having considered all of those cases, we accept the submission of Crown counsel that a starting point of 10 years would have been appropriate in the present case, given the large amount of drugs involved, the high street value, and that Mr Suwala’s possession of the drug resulted from his having imported it.  Mr Suwala’s culpability should be measured by reference to importation cases, because his possession resulted from the importation of the drugs, and the offence with which he was charged has the same maximum penalty as that for importation.  Allowance of a discount for the early guilty plea of approximately 25% would have resulted in a sentence of 7½ years, which was the sentence imposed by the District Court.  In our view, therefore, the sentence was not manifestly excessive.

[14]     For those reasons, we dismiss the appeal.

Solicitors:
Crown Law Office, Wellington