Winkels v Police
[2017] NZHC 2944
•29 November 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA
TĀMAKI MAKAURAU ROHE
CRI-2017-404-000324 [2017] NZHC 2944
BETWEEN TOBIAS WINKELS
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 27 November 2017 Appearances:
P Kaye for the Appellant
K Muirhead for the RespondentJudgment:
29 November 2017
JUDGMENT OF HINTON J
Counsel/Solicitors:
Peter Kaye, Barrister, Auckland
Meredith Connell, Auckland
WINKELS v NZ POLICE [2017] NZHC 2944 [29 November 2017]
Introduction
[1] The appellant, Mr Tobias Winkels, was sentenced to five years and five months’ imprisonment on 14 September 2017 by Judge Wharepouri in the Manukau District Court.1
[2] Mr Winkels was sentenced after pleading guilty to one charge of importing the class B controlled drug MDMA, commonly known as ecstasy.2 The maximum sentence for importing a class B controlled drug is 14 years’ imprisonment.3
[3] Mr Winkels appeals his sentence on the basis that the starting point of eight years’ imprisonment was manifestly excessive. He raises no other issue on appeal.
Factual background
[4] On 12 February 2017, Mr Winkels arrived at Auckland International Airport on board a flight from Perth, Australia. His city of origin was Prague, and he had travelled via Istanbul, Dubai, and then Perth before ending his journey in Auckland. Upon arrival in Auckland, he was referred to the Customs search area, where he was subject to a baggage search.
[5] A customs officer located three sealed plastic sleeves under a false base of
Mr Winkels’ suitcase, wrapped in duct tape and smeared with what appeared to be curry power.4
[6] All three bags were tested and returned positive results for MDMA.
[7] The overall quantity of MDMA seized was 2.9 kilograms, with 79 per cent purity. It amounted to 2.2 kilograms of pure MDMA. According to the Police
1 R v Winkels CRI-2017-092-1741 ruling of Judge A M Wharepouri, 14 September 2017; and
R v Winkels [2017] NZDC 20786.
2 Misuse of Drugs Act 1975, s 6(1)(a).
3 Misuse of Drugs Act, s 6(2)(b).
4 Judge Wharepouri noted that the powder was presumably to try to confuse drug detection dogs
(see R v Winkels [2017] NZDC 20786 at [3]).
summary of facts, the street value of the MDMA imported was between approximately
$1.1 and 1.25 million using 2016 figures.
District Court decisions
Judge Wharepouri’s sentencing decisions
[8] After setting out the agreed facts, Judge Wharepouri noted that Mr Winkels’ offending was motivated by personal financial gain. He also said the fact Mr Winkels was recruited to import the large quantity of MDMA indicated a larger network behind his offending, but there were no details of such a network or distribution plans, and he had to sentence Mr Winkels only on proven offending in line with the agreed summary of facts.
[9] Judge Wharepouri then referred to the relevant purposes and principles of sentencing, identifying deterrence as being likely to be the primary purpose. He also referred to R v Wallace and Christie, which is the leading sentencing authority for importation of class B controlled drugs.5
[10] The Judge recognised that a courier would be at the lowest end of culpability.6 (He also noted that a proper analysis of the role of an offender is looking at where they sit in the overall hierarchy, not the label of their role.)7
[11] Judge Wharepouri correctly summarised the three categories of offending in
Wallace as follows:8
The most serious category, category 1 is commercial activity on a major scale. These kinds of cases attract starting points of between eight and 14 years. The second category is the commercial manufacture or importation on a substantial scale reflecting sophistication and organisation of operations extended over a period of time though not involving massive quantities of drugs or prolonged dealing. These offences attract starting points of between five and eight years. Finally, category 3 presents commercial operations but smaller and attracting starting points of up to five years’ imprisonment.
5 R v Wallace and Christie [1999] 3 NZLR 159 (CA). The Court of Appeal confirmed in R v Wang [2014] NZCA 409 at [21] that R v Wallace and Christie remains the leading authority for offending involving class B controlled drugs.
6 R v Winkels [2017] NZDC 20786 at [9].
[12] Judge Wharepouri noted that the Crown sought a starting point of ten years’ imprisonment in category 1 of Wallace, and the defence sought a starting point of five years’ imprisonment, on the basis that the offending was at the bottom of category 2.
[13] The Judge reviewed the cases put forward by both counsel. He referred to R v Erenstein, relied on by the Crown, where a starting point of 10 years was set for the importation of 3 kilograms of MDMA.9 He considered the Erenstein offending to be more serious than the present offending, on the basis that it occurred “on a much greater scale and the quantity of MDMA imported by [Mr Winkels] was less.”10
[14] Judge Wharepouri also noted R v Kavaleros, which the defence submitted was relevant.11 In that case the defendant had been found guilty of three charges of importing and four charges of supplying MDMA. There was no evidence of the quantity of MDMA imported or sold, but Courtney J inferred that the quantities were significant. The starting point in that case was six years for the importing charges.
[15] Judge Wharepouri then said that Mr Winkels was a courier in a single importation, which he considered was perhaps a further significant distinguishing feature from Erenstein. His Honour noted that there may have been a large commercial operation in the background, but such an operation had not been disclosed in the summary of facts.12
[16] Judge Wharepouri categorised the offending in the following way:13
There is no doubt that this was a significant importation but perhaps not carried out on a major scale. I see your offending falling on the border between category 1 and 2 of Wallace. It was deliberate, planned and highly premeditated. It was also motivated by greed although to what degree is unclear. This is because you admitted that you involved yourself in the importation in return for payment but the amount is still unknown.
9 R v Erenstein HC Auckland S26/03, 21 November 2003.
10 R v Winkels [2017] NZDC 20786 at [14].
11 R v Kavaleros HC Auckland CRI-2009-404-384, 12 August 2011.
12 R v Winkels [2017] NZDC 20786 at [17].
[17] Taking all of those matters into account, including R v Erenstein and R v Kavaleros and other decisions to which he had been referred, Judge Wharepouri adopted a starting point of eight years’ imprisonment.14
[18] From that starting point, Judge Wharepouri gave a 25 per cent discount for Mr Winkels’ early guilty plea, a three-month discount for youth, a three-month discount for previous good character and a three-month discount for hardship that Mr Winkels would suffer by being incarcerated in a foreign country with no family support. The end sentence he then reached was five years and three months’ imprisonment.15
[19] Counsel for the New Zealand Customs Service requested the matter be recalled to address two errors relating to the guilty plea discount and the quantity of MDMA involved in the offending.
[20] Upon recall, Judge Wharepouri observed that he had incorrectly applied the guilty plea discount before allowing for any personal mitigating or aggravating factors, contrary to the approach in Hessell.16 When applying the approach from Hessell, the end sentence was five years and five months’ imprisonment.17
[21] In relation to the other error, he clarified that the total amount of pure MDMA involved in Mr Winkels’ offending was 2.2 kilograms, but the total amount of MDMA seized was 2.9 kilograms with a purity of 79 per cent.18 Judge Wharepouri also noted in his further ruling that Mr Winkels was concerned with ensuring Judge Wharepouri had read his letter of remorse. Judge Wharepouri stated that he did not consider Mr Winkels’ letter of remorse merited a discount because it reflected his remorse relating to his present situation, not the offending itself.19
Approach on appeal
14 R v Winkels [2017] NZDC 20786 at [19].
15 At [19] and [21].
16 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
17 R v Winkels CRI-2017-092-1741 ruling of Judge A M Wharepouri, 14 September 2017 at [5].
18 At [7].
[22] An appeal against sentence is brought under s 244 of the Criminal Procedure Act 2011. In this case this Court is the first appeal court. The approach to be taken to the appeal is set out in s 250(2) of the Criminal Procedure Act, which provides that the Court must allow the appeal if satisfied that:
(a) for any reason, there is an error in the sentence imposed on conviction;
and
(b) a different sentence should be imposed.
[23] In any other case, the Court must dismiss the appeal.20
[24] The Court of Appeal in Tutakangahau v R confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.21 Under the Summary Proceedings Act, there had to be an error vitiating the lower Court’s original sentencing discretion. The appeal proceeded on an “error principle.” To establish an error in sentencing, it had to be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.22
[25] Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentence appeals.23
[26] This Court on appeal will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.24
Parties’ submissions
20 Criminal Procedure Act 2011, s 250(3).
21 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
22 R v Shipton [2007] 2 NZLR 218 (CA) at [138].
23 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33] and [35].
[27] Mr Kaye, for Mr Winkels, submits that Judge Wharepouri erred in categorising Mr Winkels’ offending on the border of categories 1 and 2 of Wallace. Mr Kaye submits that the appropriate category is the low end of category 2. Mr Kaye relies on R v Kavaleros and R v Mitchell for this proposition.25
[28] As noted above, R v Kavaleros was briefly mentioned in Judge Wharepouri’s decision, but I will canvass it now in further depth. In Kavaleros, the defendant had been found guilty on three counts of importing and four counts of supplying MDMA. Courtney J noted that the offending was part of a sophisticated commercial operation involving the importation of large quantities of ecstasy pills. The operation had been underway for some time, and had a high degree of commerciality. In April 2008, the police had found US$240,000 and NZ$120,500 in another offender’s bank vault. In May, the vault contained US$60,000 and NZ$335,500. In June, there was approximately NZ$200,000, and in July just over NZ$150,000. Courtney J considered this to be evidence of large quantities of MDMA being imported, and considered that for individuals at higher levels in the operation, their offending was within category 1 of Wallace. She considered that the defendant’s involvement in four importations brought his offending into category 2 of Wallace, and she imposed a starting point of six years for the importation charges, but uplifted that by six months to take into account the totality of the offending. There was no record of the quantity of MDMA involved in the defendant’s offending.
[29] Mr Kaye submits that the starting point in this case was excessive in light of Kavaleros, particularly because of the lack of any evidence of a sophisticated commercial operation in the summary of facts in this matter.
[30] In R v Mitchell, the defendant was sentenced on two charges of importing MDMA, one charge of supplying methamphetamine as a class B controlled drug, and one charge of supplying methamphetamine as a class A controlled drug.26 The defendant had opened Post Office boxes for receiving imported drugs from Canada.
He was responsible for the New Zealand end of the operation. The amount of MDMA
25 R v Kavaleros HC Auckland CRI-2009-404-384, 12 August 2011; R v Mitchell HC Auckland CRI-
2004-044-6481, 7 October 2005.
26 Methamphetamine was re-categorised as a class A controlled drug, rather than a class B controlled drug, on 30 May 2003 by the Misuse of Drugs (Changes to Controlled Drugs) Order 2003.
involved in the importation offending was approximately 59 grams. Potter J took the
importation offences as the lead offences, and categorised the offending as being at the low end of category 2 of Wallace, imposing a starting point of five years’ imprisonment for them, and uplifting by six months for the supply offences. Potter J considered that the offending involved a good degree of sophistication and premeditation, and she characterised the defendant as being a crucial player, albeit on a lesser scale than his co-defendants.
[31] Mr Kaye submits that Mitchell also supports a finding that the starting point
Judge Wharepouri adopted was manifestly excessive.
[32] The Crown submits that these two cases are distinguishable from Mr Winkels’ offending, Kavaleros on the basis that it involved an unknown quantity of MDMA, and Mitchell because it involved 59 grams of pure MDMA, compared to the 2.2 kilograms of pure MDMA involved in this matter.
[33] The Crown also submits that Erenstein is directly comparable, contrary to Judge Wharepouri’s assessment. The Crown submits that the total amount of MDMA seized in this matter is almost the same as that in Erenstein; Erenstein involved three kilograms and the present case involved 2.9 kilograms, each being 79 per cent purity. Both are very significant amounts.
[34] The Crown says that quantity is a better indication of criminality than estimated street value (the estimated street value in Erenstein being significantly higher than the present case). Mr Kaye agrees that street value is not a reliable indicator.
[35] The Crown points to further similarities between Erenstein and this case, such as the offending in both being premeditated, involving a one-off importation of MDMA concealed in luggage, and the role of each defendant being as a courier. The Crown submits that both Erenstein and this case involved an extremely high level of importation and represented commercial activity on a major scale. The Crown also submits that Judge Wharepouri’s reasons for distinguishing Erenstein are not borne out. In particular, Judge Wharepouri initially sentenced Mr Winkels on the basis that he imported 2.2 kilograms of MDMA, and said that this case involved a smaller
quantity of MDMA than Erenstein, as a basis for distinguishing the two. The Crown points to Judge Wharepouri’s clarification in his further ruling that the total amount involved here was 2.9 kilograms, which is almost the same amount as that imported by Mr Erenstein.
[36] On the basis that Erenstein is directly comparable, and a starting point of
10 years’ imprisonment was imposed in that case, the Crown submits that a starting point of eight years’ imprisonment in this case was not manifestly excessive.
Analysis
[37] I agree with the points made by the Crown in relation to Erenstein. While it is not apparent on the face of Erenstein, it can be drawn from the sentencing notes of
Mr Erenstein’s co-offenders, that Erenstein involved 2.3 kilograms of pure MDMA, similar to the 2.2 kilograms in the present case.27 I agree with counsel that the significantly higher estimated street value at the time of the Erenstein offending is not material.
[38] Judge Wharepouri also considered that Mr Winkels’ being involved in only one instance of importation may be a distinguishing feature. On the facts of Erenstein, the defendant was charged in relation to only one instance of importation, so that is not a valid point of distinction.
[39] Judge Wharepouri observed that a distinguishing feature of the two cases is their scale. Mr Erenstein was charged alongside two co-offenders and there was information regarding the wider operation he was involved in, whereas the Police summary of facts here does not comment on the wider operation. However, Harrison J made no reference to the size of the wider operation. Further, while the category descriptions in Wallace are a little ambiguous, I consider the prevailing factor must be quantity, not size of operation, given category 2 is described as “not involving massive quantities of drugs”. Put differently, “major scale” (category 1 in Wallace) includes
major quantity.
27 R v Kadosh CA367/04, 15 April 2005; R v Quinlan CA68/05, 4 December 2005.
[40] If it were relevant, I would consider that commerciality and scale are involved here, given the quantity of drugs, the method of concealment and the route Mr Winkels took.
[41] The similarities between the two cases, and the starting point of 10 years’ imprisonment in Erenstein supports the view that, at the least, the starting point of eight years’ imprisonment here was not manifestly excessive.
[42] I should add that Mr Kaye submits also that the starting point in Erenstein may have been agreed, (and the case is therefore not reliable precedent). While agreement between counsel is a possibility, on the face of the judgment, it is clear Harrison J turned his mind to the point, and the finding has been at least implicitly approved by the Court of Appeal in Kadosh and Quinlan.28
[43] I do not consider I can safely draw a comparison with Kavaleros. It is limited by the fact that the quantity of MDMA was not known. Courtney J had to act with little information. I do not consider that it is appropriate to rely on that case to find that a starting point of eight years’ imprisonment was manifestly excessive. Further, Courtney J’s view was based on the sums of money in a co-offender’s bank account. That does not necessarily reflect the quantity of MDMA involved in Mr Kavaleros’ offending. At best, Kavaleros would indicate that a lower starting point than in Erenstein might be appropriate. Consistent with that, the starting point of eight years adopted by Judge Wharepouri was lower than the 10-year starting point in Erenstein.
[44] I agree with the Crown that Mitchell is not comparable on the basis that the quantity of MDMA involved was so much less than in the present circumstances. Fifty-six grams cannot compare with 2.2 kilograms.
[45] As the Court noted in Wallace, because fixing the culpability of offenders requires close assessment of the facts of the particular case, comparisons with other cases must be drawn with care.29 With that in mind, after considering the cases
referred to above and the circumstances of Mr Winkels’ offending, I do not consider
28 R v Kadosh CA367/04, 15 April 2005; R v Quinlan CA68/05, 4 December 2005.
29 R v Wallace and Christie [1999] 3 NZLR 159 (CA) at [21]-[22].
that the starting point set was manifestly excessive. While there is no evidence as to the scale of the operation Mr Winkels was involved in, the quantity involved supports the conclusion Judge Wharepouri reached that this offending lies on the border between category 1 and 2 of Wallace, in fact arguably higher.
Result
[46] The appeal against sentence is dismissed.
------------------------------------------------------- Hinton J
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