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…
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- Winkels v Police [2017] NZHC 2944
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- [2017] NZHC 2944
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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