Walter v Police

[2018] NZHC 192

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-431

[2018] NZHC 192

BETWEEN

MICHAEL WALTER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	19 February 2018
Appearances:	N Chisnall for Appellant H Max for Respondent
Judgment:	19 February 2018

(ORAL) JUDGMENT OF LANG J

[on appeal against sentence]

WALTER v NEW ZEALAND POLICE [2018] NZHC 192 [19 February 2018]

[1]                 Mr Walter pleaded guilty in the District Court to charges of importing the Class B drug MDMA, commonly known as ecstasy, and importing the Class C controlled drug ketamine. On 27 October 2017, Judge Wharepouri sentenced Mr Walter to five years six months and two weeks imprisonment on both charges.1

[2]                 Mr Walter appeals against sentence on the basis that the Judge applied an overall starting point that was too high, and failed to provide him with adequate discounts to reflect mitigating factors.

The facts

[3]                 Mr Walter pleaded guilty after having received a sentence indication that he declined. The summary of facts on which he was sentenced states that on 2 February 2017 he arrived at Auckland International Airport on a flight from Melbourne, Australia. He had earlier travelled from Germany via Abu Dhabi to Melbourne.

[4]                 When Mr Walter arrived in Auckland, he was subject to a baggage check. The customs officer who examined his suitcase noticed that it appeared to still be heavy even after the contents had been removed. He then subjected the suitcase to an x-ray examination. This revealed a hidden compartment within the base of the suitcase in which four vacuum sealed bags had been placed. A sample taken from one of these immediately tested positive for a controlled substance. It was later determined that three of the sealed bags contained MDMA, and the remaining bag contained ketamine.

[5]                 The MDMA had a purity of between 77 and 82 per cent. This  meant  that  Mr Walter had imported between 1.5 and 1.6 kilograms of pure MDMA having a street value of between $550,000 and $672,000. The ketamine was found to have a purity level of approximately 70 per cent. This meant Mr Walter had imported 250 grams of pure ketamine, having a street value of $150 per gram. It is now agreed that the street value of the ketamine was $37,500. In this respect both counsel acknowledge that the

1      R v Walter [2017] NZDC 24380.

summary of facts contained an error, because it recorded the street value of the ketamine as being $54,150.

The sentence

[6]                 The Judge took a starting point of seven years imprisonment on the MDMA charge. He then added an uplift of 12 months to reflect the charge relating to the importation of ketamine. From the end starting point of eight years imprisonment he made an allowance of three months to reflect Mr Walter’s previous good character, two months for efforts he had made whilst on remand to rehabilitate himself and two months to reflect the fact that he will be required to serve a sentence of imprisonment in a country far removed from Bali, where he normally resides.

[7]                 The Judge then applied a discount of 25 per cent to reflect guilty pleas. This produced the effective end sentence of five years six months and two weeks imprisonment.

The uplift to reflect the ketamine charge

[8]                 On Mr Walter’s behalf, Mr Chisnall submits that the Judge erred in adding an uplift of 12 months to reflect the ketamine charge after selecting a starting point of seven years imprisonment on the MDMA charges. He does not challenge the starting point of seven years imprisonment on the MDMA charge, and that is understandable given the fact that the maximum sentence on the MDMA charge is one of 14 years imprisonment. Mr Chisnall submits the Judge erred, however, in uplifting the starting point on that charge by a further 12 months to reflect the ketamine charge.

[9]                 Mr Chisnall points out that Judge Wharepouri also sentenced another offender from the same operation as that with which Mr Walter was involved. In Winkels v Police, the Judge sentenced an offender who had imported approximately

2.2 kilograms of MDMA into New Zealand approximately one month after Mr Walter had imported drugs into this country.2 Judge Wharepouri took a starting point of eight years imprisonment in the case of Mr Winkels.

2      R v Winkels [2017] NZDC 2078, upheld on appeal; Winkels v New Zealand Police [2017] NZHC 2944.

[10]              Mr Chisnall submits that it would be wrong in principle for the Judge to adopt the same effective overall starting point in respect of both offenders in circumstances where Mr Winkels had imported a significantly greater quantity of a Class B drugs than Mr Walter.

[11]              I understand the logic of Mr Chisnall’s argument. I cannot say, however, that an uplift of one year would ordinarily be outside the available range. The offence of importing Class C controlled drugs carries a maximum sentence of eight years imprisonment.3 An uplift of 12 months to reflect the importation of 250 grams of a Class C drug would not ordinarily attract appellate scrutiny.

[12]              I acknowledge, however, that there has been no detailed consideration in this Court or the Court of Appeal of the starting points to be applied in relation to the importation of Class C controlled drugs. Ms Max for the Crown has referred me to two cases in which starting points of around three years imprisonment have been selected in cases involving the importation of Class C controlled drugs. In Fraser v R, the Court of Appeal upheld a starting point of three years imprisonment for the importation of a Class C controlled drug valued at $21,600.4 In McDonald v Crown Law this Court imposed a sentence of three years and four months imprisonment for the importation of $54,500 worth of Class C controlled drugs.5 Standing on its own, therefore, it would seem that Mr Walter’s offending would inevitably attract a starting point in excess of one year’s imprisonment.

[13]              The Judge made a significant error, however, when setting out the factual basis on which he sentenced Mr Walter. The Judge observed that the ketamine had a street value of $338,000. That is almost ten times the value of the drugs as now agreed by the Crown.

[14]              I consider that this error may well have affected the manner in which the Judge addressed the issue of the uplift. Had he been aware of the true street value of the

3      Misuse of Drugs Act 1975, ss 6(1)(a) and 6(2)(c).

4      Fraser v R [2013] NZCA 250.

5      McDonald v Crown Law [2016] NZHC 339.

ketamine, I consider it likely he would have adopted a significantly lower uplift to reflect that aspect of Mr Walter’s offending.

[15]              I therefore propose to adjust the starting point in respect of the ketamine charge by halving it to arrive at an uplift of six months to reflect that charge. This produces an end starting point of seven years six months imprisonment before taking into account mitigating factors.

Mitigating factors

[16]              Mr Chisnall advances two challenges to the overall discount of seven months applied by the Judge to reflect mitigating factors. First, he submits that the Judge ought to have provided a greater discount than three months to reflect previous good character. In this context Mr Chisnall relies on the fact that Mr Walter has a successful and worthwhile business career in Bali, and he has not previously offended.

[17]              I do not accept that the Judge fell into error in this regard. Allied to the discount given for good character was the discount applied to reflect rehabilitative efforts made in prison. It is difficult to see what rehabilitative efforts would have been worthy of recognition, because this offending was a one-off incident for commercial gain. It is therefore difficult to see how Mr Walter could take meaningful rehabilitative steps to guard against future offending of that type. When the two discounts are added together they produce an overall discount of five months, or approximately five per cent. I do not consider the Judge was obliged to go further than that to reflect the issue of good character.

[18]              Next, Mr Chisnall submits that the Judge ought to have applied a greater discount to reflect the fact that Mr Walter will be required to serve his sentence in a foreign prison far removed from his friends and family in Bali. The courts routinely provide modest discounts to reflect this factor. This recognises the principle that a foreign offender serving a sentence in a New Zealand prison may well feel a sense of isolation. Often this will flow from an inability to understand the English language and to communicate with other prisoners and staff. It may also reflect the fact that the offender will be serving a sentence of imprisonment in a cultural environment far removed from his or her own. This means that the offender will be required to adhere

to different customs and to consume food vastly different from that consumed in his or her home country.

[19]              There is, however, another side to this argument. If significant discounts are provided to reflect this factor, it may be easier for foreign recruiters to persuade couriers to travel to this country bringing drugs with them. For that reason the courts have traditionally been cautious about the level of discount to be applied. Any departure from that practice would, in my view, need to be sanctioned, if not led, by the appellate courts in New Zealand. I therefore do not consider the Judge was required to give any greater discount to reflect the fact that Mr Walter will be required to serve his sentence in a New Zealand prison.

Result

[20]              It follows that the end starting point is reduced to seven years six months imprisonment. From that sentence seven months must be deducted to reflect the mitigating factors the Judge identified. A further discount of 21 months is available to reflect guilty pleas, calculated at 25 per cent. This produces an end sentence of five years two months imprisonment.

Result

[21]              The sentences imposed on both charges are quashed. In their place, I impose a sentence of five years two months on the charge of importing MDMA and a sentence of five months imprisonment on the charge of importing ketamine. Both sentences are to be served concurrently.

Lang J

Solicitors:

Crown Solicitor, Auckland N Chisnall, Auckland