Wilk v R - [2020] NZCA 172

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA708/2018
[2020] NZCA 172

BETWEEN	RALPH ALAN WILK Appellant
AND	THE QUEEN Respondent

Hearing:	3 March 2020
Court:	Courtney, Ellis and Brewer JJ
Counsel:	A G Speed and J-E Tulloch for Appellant M R Davie for Respondent
Judgment:	20 May 2020 at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brewer J)

Introduction

Mr Wilk pleaded guilty to one representative charge of supplying cocaine[1] and to one representative charge of money laundering.[2] He was sentenced by Peters J to eight years and five months’ imprisonment.[3] He now appeals that sentence contending it is manifestly excessive.
[1]Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a), maximum penalty life imprisonment.
[2]Crimes Act 1961, s 243(2), maximum penalty seven years’ imprisonment.
[3]R v Wilk [2018] NZHC 2704.
Our task is to decide whether there is an error in Mr Wilk’s sentence such that a lesser sentence should be imposed.

Background

On 6 September 2016, Mr Wilk and his father came to New Zealand from Poland. This was for the purpose of obtaining cocaine from a sailor who was on board a vessel which had travelled from South America and which arrived in Auckland the day Mr Wilk and his father arrived.
The father met the sailor on 7 September 2016 and obtained four kilograms of cocaine from him.
It is accepted Mr Wilk was acting under instructions from his father who was the leader of the enterprise. Mr Wilk assisted his father to supply two kilograms of the cocaine to a number of New Zealand-based persons.
On 22 September 2016, Mr Wilk and his father left New Zealand and returned to Poland. They left behind, concealed, the remainder of the four kilograms of cocaine.
On 6 November 2016, Mr Wilk and his father returned to New Zealand. Their purpose was to obtain money outstanding on the supply of two kilograms of cocaine and to arrange further supplies of that drug from the portion of the four kilograms they concealed on their first visit.
During this second visit Mr Wilk communicated by telephone with an unknown male using a telephone number with a prefix for Ecuador.
Mr Wilk was useful to his father partly because Mr Wilk speaks English and the father did not. Intercepted telephone communications between Mr Wilk and the unknown male have the father’s voice in the background presumably telling Mr Wilk what to say.
The unknown male asked Mr Wilk whether they would supply a further two kilograms of cocaine to the same unknown persons they had supplied previously in September 2016. Mr Wilk and his father were amenable to this but they stipulated they would not supply the further two kilograms until the unknown persons paid the money outstanding for the first two kilograms. This was stated to be NZD 90,000.
On 17 November 2016, police surveillance recorded another offender, a Mr Williams, handing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wilk v R

Details

AGLC: Wilk v R [2020] NZCA 172
Case: [2020] NZCA 172
Decision Date: 20 May 2020 at 10 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard the appeal of Ralph Alan Wilk against his sentence for supplying cocaine and money laundering. Wilk was sentenced to eight years and five months’ imprisonment by Peters J and appealed on the basis that his sentence was manifestly excessive. The appeal was heard by Courtney, Ellis, and Brewer JJ, with A G Speed and J-E Tulloch representing the appellant and M R Davie representing the respondent. The court dismissed the appeal on 20 May 2020.

The legal issues in the appeal were whether the starting point of 11 years’ imprisonment was too high, whether the discount for personal mitigating factors was too low, and whether the discount for guilty pleas was inadequate. The court assessed these issues in light of the principles of culpability, proportionality, and totality. The court concluded that the starting point was within range, the discount for personal mitigating factors was appropriate, and the discount for guilty pleas was within the range available to the Judge. The court also found that the end sentence of eight years and five months’ imprisonment was not manifestly excessive having regard to the totality of Wilk’s offending.

The court found that Wilk played a significant role in the overall offending, involving the supply of four kilograms of cocaine during two separate visits to New Zealand. Wilk assisted his father in remitting overseas a total of $17,856.72 and exchanging $7,878.80 into different currencies. Wilk was also prevented from carrying $40,000 in cash overseas in his suitcase. The court found that the starting point of 11 years’ imprisonment was within range and appropriate for the quantity of the drug involved and Wilk’s role in the offending. The court also found that the discount for personal mitigating factors was appropriate, given Wilk’s repeated offending by a mature man. The court found that the discount for guilty pleas was within the range available to the Judge, given that Wilk negotiated a deal favourable to himself and the charges to which he pleaded guilty were the strongest of the Crown’s charges. The court concluded that the end sentence of eight years and five months’ imprisonment was not manifestly excessive having regard to the totality of Wilk’s offending. The appeal was therefore dismissed.

Orders