Winkels v Police - [2017] NZHC 2944

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 Respondent

Judgment:

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…

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 Winkels v Police

Details

AGLC: Winkels v Police [2017] NZHC 2944
Case: [2017] NZHC 2944
Decision Date: 29 November 2017

CaseChat Overview and Summary

Tobias Winkels appeals his sentence of five years and five months' imprisonment, imposed by Judge Wharepouri in the Manukau District Court on 14 September 2017. He was sentenced after pleading guilty to importing 2.9 kilograms of MDMA, with 79 per cent purity. The appeal focuses on whether the starting point of eight years' imprisonment was manifestly excessive. The High Court considers whether there was an error in the sentence and if a different sentence should be imposed. The Court finds that the starting point of eight years' imprisonment was not manifestly excessive, as the quantity of MDMA involved supports Judge Wharepouri's conclusion that the offending lies on the border between category 1 and 2 of Wallace, arguably higher. The appeal against sentence is dismissed.

The High Court's decision is based on a careful analysis of the cases relied on by both parties and the circumstances of Mr Winkels' offending. The Court agrees with the Crown that the case of R v Erenstein is directly comparable to the present case, with both involving similar quantities of MDMA and a one-off importation concealed in luggage. The Court also finds that the case of R v Kavaleros is not directly comparable due to the unknown quantity of MDMA involved in that case. The Court further agrees with the Crown that the case of R v Mitchell is not comparable due to the significantly lower quantity of MDMA involved in that case. The Court concludes that, considering the circumstances of Mr Winkels' offending, the starting point of eight years' imprisonment was not manifestly excessive.

Orders