Wilk v R
[2020] NZCA 172
•20 May 2020 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA708/2018 [2020] NZCA 172 |
| BETWEEN | RALPH ALAN WILK |
| AND | THE QUEEN |
| Hearing: | 3 March 2020 |
Court: | Courtney, Ellis and Brewer JJ |
Counsel: | A G Speed and J-E Tulloch for Appellant |
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 Mr Wilk and his father a bag containing cash.
Eventually, the unknown persons who had bought the first two kilograms of cocaine made full payment for it. A further two kilograms of cocaine was then supplied to them.
On 20 November 2016, Mr Wilk left New Zealand. His father remained behind because there was further money to collect. It might well be that the supply of the further two kilograms of cocaine took place after Mr Wilk had left New Zealand.
Mr Wilk’s checked-in luggage was searched covertly before his plane left. NZD 40,000 in cash was found in his suitcase hidden in four Chinese noodle packets. New Zealand Customs seized the cash without Mr Wilk being aware of the fact.
Mr Wilk’s father left New Zealand on 16 April 2017.
We pause to note that the date range to the representative charge of supplying cocaine is between 6 September 2016 and 16 April 2017.
On 5 June 2017, Mr Wilk returned to New Zealand for the purpose of collecting cash hidden by his father at Bastion Point in Auckland.
On 20 June 2017, Mr Wilk was seen handing Mr Williams a bag which it was later found contained NZD 51,800. Mr Williams’s task was to remit the money to Poland.
On 7 July 2017, police executed a covert search warrant on Mr Wilk’s apartment and found NZD 116,100 and USD 10,000.
On 13 July 2017, Mr Wilk was arrested.
So far as the money laundering charge is concerned, although representative, 13 occasions are particularised in which a total of NZD 17,856.72 was remitted overseas and NZD 7,878.80 was exchanged into different currencies.
The sentence
Mr Wilk was charged originally with importing the cocaine and pleaded not guilty. On the morning of the trial (24 September 2018) the Judge was advised that a tentative agreement had been reached by which the importation charge would be withdrawn and the money laundering charges would be combined in one representative charge. Mr Wilk asked for a sentence indication on the proposed deal. The Judge agreed and indicated a starting point of 11 years’ imprisonment with a discount of 15 per cent for guilty pleas. The Judge accepted Mr Wilk was acting under instructions from his father and that he played a secondary or lesser role compared to his father. The Judge fixed the starting point to the representative charge of supplying cocaine and did not impose an uplift for the money laundering charge. The Judge also indicated she would not impose a minimum period of imprisonment.
Mr Wilk immediately accepted the sentence indication and pleaded guilty to the two charges.
At sentencing on 18 October 2018, the Judge reduced the starting point of 11 years’ imprisonment by one year to take account of Mr Wilk’s prior good character, the fact that as a foreign national serving a prison sentence would be more difficult for Mr Wilk, and to take account of his remorse.[4]
[4]At [7]–[11].
The discount for the pleas of guilty remained at 15 per cent.[5]
The appeal
[5]At [12].
Mr Speed submits there are three errors in the sentence:
(a)The Judge gave insufficient weight to Mr Wilk’s limited role when she set the starting point of 11 years’ imprisonment.
(b)The discount of one year (9 per cent) for Mr Wilk’s personal mitigating factors was insufficient.
(c)The discount of 15 per cent for the guilty pleas was inadequate.
The starting point
There is no tariff guideline judgment for dealing in cocaine. The recent decision of this Court in Zhang v R giving guidelines for methamphetamine related offending, however, provides useful logic for determining culpability.[6]
[6]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
First, the quantity of the drug involved is an important consideration in fixing culpability.[7]
[7]At [10(b)] and [104].
In this case, four kilograms of cocaine were imported. According to the summary of facts, Mr Wilk was directly involved in the supply of two kilograms from that importation during his first visit to New Zealand. Mr Wilk returned to New Zealand partly for the purpose of assisting his father to supply the remaining two kilograms. He took part in the discussions with the unknown male about supplying the remaining two kilograms to the purchasers of the first amount of two kilograms. Mr Wilk was party to the agreement that this supply would take place once the money outstanding on the supply of the first two kilograms had been paid. It is uncertain whether the supply of the second amount of two kilograms took place before Mr Wilk left the country on 20 November 2016.
There is no evidence Mr Wilk had withdrawn from the agreement to supply the second amount of two kilograms before he left New Zealand. Therefore, he was a party to its supply. The quantity which is relevant to Mr Wilk’s charge of supplying cocaine is four kilograms.
Second, Mr Wilk’s role in the supplying of the cocaine is an important consideration in fixing his culpability. As this Court said in Zhang:[8]
… Due regard to role enables sentencing judges to properly assess the seriousness of the conduct and the criminality involved, and thereby the culpability inherent in the offending in the holistic manner required by Taueki and Hessell.
[8]Above n 6, at [118] (footnotes omitted).
Mr Speed submits that Mr Wilk, subordinate to his father, played a lesser role — really just acting as translator.[9] He submits Mr Wilk was only involved to assist his father and there was no element of commercial gain.
[9]The Court of Appeal in Zhang v R sets out indicia for assessing role at [126].
In our view, Mr Wilk played a significant role in the overall offending:
(a)At the latest, Mr Wilk became aware of the scale of the offending when he first came to New Zealand with his father and the four kilograms of cocaine were obtained.
(b)Thereafter he supported his father and was involved in the supply of the first amount of two kilograms.
(c)He further assisted his father through the laundering of some of the sale proceeds.
(d)He returned to New Zealand with his father on the second occasion to assist with collecting outstanding payment from the sale of the first amount of two kilograms and to assist with the supply of the second amount of two kilograms.
(e)As to the former, he was present when Mr Williams handed over cash. As to the latter, he spoke directly to the unknown male and was party to the agreement to supply the second amount of two kilograms.
(f)He was trusted to carry large amounts of cash. Mr Wilk had $40,000 in cash in his suitcase when he went to the airport to leave New Zealand the second time.
Mr Wilk travelled to New Zealand for a third time on 5 June 2017. Nothing that he did after his return and before he was arrested has given rise to charges. His actions are relevant only in that they show the trust his father placed in him and Mr Wilk’s obvious commitment to the criminal enterprise. A relevant inference can be drawn that these traits existed during the first and second visits to New Zealand.
Mr Wilk was a businessman aged 29 years or so when these events took place. The events spanned a period from 6 September 2016 to Mr Wilk’s arrest on 13 July 2017. During this period Mr Wilk travelled to New Zealand on three occasions staying weeks at a time. He handled large sums of cash and his father remitted overseas more than $600,000. It can be inferred that Mr Wilk’s offending had a commercial motivation.
We have reviewed relevant comparator cases and will refer to two: Clarke v R[10] and Agwu v R.[11]
[10]Clarke v R [2013] NZCA 473.
[11]Agwu v R [2015] NZCA 619.
Mr Clarke was one of six people involved in the distribution of almost three kilograms of cocaine. He had no role in importing the drugs to New Zealand, and was involved in the operation for only three days. This Court found that the nine year starting point adopted in the High Court could not be faulted (although it was ultimately reduced to eight years to promote parity with Mr Clarke’s co-offenders).[12]
[12]Clarke v R, above n 11, at [24] and [32].
Mr Agwu imported 4.5 kilograms of cocaine via post. He was assessed as being the head of the New Zealand branch of what was an organised, international commercial venture. This Court found the 18 year starting point to be stern but within range.[13]
[13]Agwu v R, above n 12, at [8].
We assess Mr Clarke’s role as a lesser one than Mr Wilk’s. Mr Agwu’s role was a greater one. Mr Wilk’s starting point is unremarkably within the range between their starting points.
It is also useful to look at bands established in Zhang as a cross-check. The bands cannot be applied directly to offending involving cocaine because there has been no authoritative assessment of the social harm done by cocaine as was undertaken in Zhang in relation to methamphetamine. But, both are Class A drugs and the same penalties apply. This Court very recently took a similar approach in an appeal relating to the importing of cocaine.[14]
[14]de Macedo v R [2020] NZCA 132 at [6]. The Court left open the question whether any distinction should be drawn between cocaine and methamphetamine.
Band five of Zhang applies to quantities greater than two kilograms. The starting point range is 10 years to life imprisonment.[15] Again, a starting point of 11 years in respect of four kilograms seems unremarkable.
[15]Zhang v R, above n 6, at [125].
We conclude that a starting point of 11 years’ imprisonment was available to the Judge, particularly since the Judge (no doubt with totality in mind) did not impose an uplift for the money laundering charge. Mr Wilk’s role was significant and prolonged. We note that in de Macedo v R the Court adopted an 11-year starting point for a person who imported 2.4 kilograms of cocaine even though he was assessed as having a lesser involvement in the importation.[16]
Discount for personal mitigating factors
[16]de Macedo v R, above n 15, at [21].
Mr Speed refers to the High Court decision of R v Cutler where personal mitigating factors similar to Mr Wilk’s factors resulted in a discount of 20 per cent.[17]
[17]R v Cutler [2019] NZHC 2737.
We consider the Judge gave a discount within the range available to her. We note in particular that this was repeated offending by a mature man. The fact that some six months after the offending Mr Wilk returned to New Zealand to retrieve and launder a large sum of money concealed at Bastion Point by his father goes against a more fulsome discount.
Discount for guilty pleas
Mr Speed submits the deal that was negotiated at the commencement of the trial changed the charge picture so significantly that Mr Wilk should be regarded almost as though he had entered his pleas of guilty at the first available opportunity. In particular, Mr Speed points out that at the time the deal was done the lead charge was importing the cocaine. That charge was withdrawn. The deal avoided the need for a lengthy trial saving judicial time and resources. Mr Speed submits a discount of 20 per cent for the guilty pleas was called for.
Mr Wilk negotiated a deal favourable to himself. He had always faced the charge of supplying cocaine. The money laundering charges were consolidated into a single representative charge (it does seem that two charges were not proceeded with). Further, Mr Wilk did not accept the deal until he had received the sentence indication. The charges to which he pleaded guilty were the strongest of the Crown’s charges.
Under these circumstances we find the discount of 15 per cent was within the range available to the Judge and was appropriate.
Decision
An appeal against sentence necessarily requires an assessment as to whether there has been an error such that a different sentence should be imposed. However, the focus must be on the end sentence. Where a defendant appeals on the basis his sentence is manifestly excessive then any error of the Judge in fixing the sentence will not matter if the end sentence is not manifestly excessive.
We stand back and consider whether the end sentence of eight years and five months’ imprisonment is manifestly excessive. In our view, it is not having regard to the totality of Mr Wilk’s offending. The offending involved the supply of four kilograms of cocaine carried out during two separate visits to New Zealand. Large sums were obtained. On the first visit, Mr Wilk assisted his father on 13 occasions to remit overseas a total of $17,856.72 and to exchange $7,878.80 into different currencies. He was prevented from carrying $40,000 in cash overseas in his suitcase. This was significant and commercial offending. The sentencing purposes of denunciation and deterrence have to be emphasised.[18]
[18] Sentencing Act 2002, s 7(1)(e)–(f).
The appeal is therefore dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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