WILK v R [2020] NZCA 172

WILK v R [2020] NZCA 172 [20 May 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA708/2018[2020] NZCA 172BETWEEN RALPH ALAN WILKAppellantAND THE QUEENRespondentHearing: 3 March 2020Court: Courtney, Ellis and Brewer JJCounsel: A G Speed and J-E Tulloch for AppellantM R Davie for RespondentJudgment: 20 May 2020 at 10 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Brewer J)Introduction[1] Mr Wilk pleaded guilty to one representative charge of supplying cocaine1 andto one representative charge of money laundering.2 He was sentenced by Peters J toeight years and five months' imprisonment.3 He now appeals that sentence contendingit 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.[2] Our task is to decide whether there is an error in Mr Wilk's sentence such thata lesser sentence should be imposed.Background[3] On 6 September 2016, Mr Wilk and his father came to New Zealand fromPoland. This was for the purpose of obtaining cocaine from a sailor who was on boarda vessel which had travelled from South America and which arrived in Auckland theday Mr Wilk and his father arrived.[4] The father met the sailor on 7 September 2016 and obtained four kilograms ofcocaine from him.[5] It is accepted Mr Wilk was acting under instructions from his father who wasthe leader of the enterprise. Mr Wilk assisted his father to supply two kilograms ofthe cocaine to a number of New Zealand-based persons.[6] On 22 September 2016, Mr Wilk and his father left New Zealand and returnedto Poland. They left behind, concealed, the remainder of the four kilograms ofcocaine.[7] On 6 November 2016, Mr Wilk and his father returned to New Zealand. Theirpurpose was to obtain money outstanding on the supply of two kilograms of cocaineand to arrange further supplies of that drug from the portion of the four kilograms theyconcealed on their first visit.[8] During this second visit Mr Wilk communicated by telephone with anunknown male using a telephone number with a prefix for Ecuador.[9] Mr Wilk was useful to his father partly because Mr Wilk speaks English andthe father did not. Intercepted telephone communications between Mr Wilk and theunknown male have the father's voice in the background presumably telling Mr Wilkwhat to say.[10] The unknown male asked Mr Wilk whether they would supply a further twokilograms of cocaine to the same unknown persons they had supplied previously inSeptember 2016. Mr Wilk and his father were amenable to this but they stipulatedthey would not supply the further two kilograms until the unknown persons paid themoney outstanding for the first two kilograms. This was stated to be NZD 90,000.[11] On 17 November 2016, police surveillance recorded another offender,a Mr Williams, handing Mr Wilk and his father a bag containing cash.[12] Eventually, the unknown persons who had bought the first two kilograms ofcocaine made full payment for it. A further two kilograms of cocaine was thensupplied to them.[13] On 20 November 2016, Mr Wilk left New Zealand. His father remainedbehind because there was further money to collect. It might well be that the supply ofthe further two kilograms of cocaine took place after Mr Wilk had left New Zealand.[14] 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.[15] Mr Wilk's father left New Zealand on 16 April 2017.[16] We pause to note that the date range to the representative charge of supplyingcocaine is between 6 September 2016 and 16 April 2017.[17] On 5 June 2017, Mr Wilk returned to New Zealand for the purpose ofcollecting cash hidden by his father at Bastion Point in Auckland.[18] On 20 June 2017, Mr Wilk was seen handing Mr Williams a bag which it waslater found contained NZD 51,800. Mr Williams's task was to remit the money toPoland.[19] On 7 July 2017, police executed a covert search warrant on Mr Wilk'sapartment and found NZD 116,100 and USD 10,000.[20] On 13 July 2017, Mr Wilk was arrested.[21] 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 remittedoverseas and NZD 7,878.80 was exchanged into different currencies.The sentence[22] Mr Wilk was charged originally with importing the cocaine and pleaded notguilty. On the morning of the trial (24 September 2018) the Judge was advised that atentative agreement had been reached by which the importation charge would bewithdrawn and the money laundering charges would be combined in onerepresentative 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 adiscount of 15 per cent for guilty pleas. The Judge accepted Mr Wilk was acting underinstructions from his father and that he played a secondary or lesser role compared tohis father. The Judge fixed the starting point to the representative charge of supplyingcocaine and did not impose an uplift for the money laundering charge. The Judge alsoindicated she would not impose a minimum period of imprisonment.[23] Mr Wilk immediately accepted the sentence indication and pleaded guilty tothe two charges.[24] At sentencing on 18 October 2018, the Judge reduced the starting point of11 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 forMr Wilk, and to take account of his remorse.4[25] The discount for the pleas of guilty remained at 15 per cent.5The appeal[26] Mr Speed submits there are three errors in the sentence:4 At [7]–[11].5 At [12].(a) The Judge gave insufficient weight to Mr Wilk's limited role when sheset the starting point of 11 years' imprisonment.(b) The discount of one year (9 per cent) for Mr Wilk's personal mitigatingfactors was insufficient.(c) The discount of 15 per cent for the guilty pleas was inadequate.The starting point[27] There is no tariff guideline judgment for dealing in cocaine. The recentdecision of this Court in Zhang v R giving guidelines for methamphetamine relatedoffending, however, provides useful logic for determining culpability.6[28] First, the quantity of the drug involved is an important consideration in fixingculpability.7[29] In this case, four kilograms of cocaine were imported. According to thesummary of facts, Mr Wilk was directly involved in the supply of two kilograms fromthat importation during his first visit to New Zealand. Mr Wilk returned toNew Zealand partly for the purpose of assisting his father to supply the remaining twokilograms. He took part in the discussions with the unknown male about supplyingthe 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 moneyoutstanding on the supply of the first two kilograms had been paid. It is uncertainwhether the supply of the second amount of two kilograms took place before Mr Wilkleft the country on 20 November 2016.[30] There is no evidence Mr Wilk had withdrawn from the agreement to supply thesecond amount of two kilograms before he left New Zealand. Therefore, he was aparty to its supply. The quantity which is relevant to Mr Wilk's charge of supplyingcocaine is four kilograms.6 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.7 At [10(b)] and [104].[31] Second, Mr Wilk's role in the supplying of the cocaine is an importantconsideration in fixing his culpability. As this Court said in Zhang:8 Due regard to role enables sentencing judges to properly assess theseriousness of the conduct and the criminality involved, and thereby theculpability inherent in the offending in the holistic manner required by Tauekiand Hessell.[32] 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 hisfather and there was no element of commercial gain.[33] 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 whenhe first came to New Zealand with his father and the four kilograms ofcocaine were obtained.(b) Thereafter he supported his father and was involved in the supply of thefirst amount of two kilograms.(c) He further assisted his father through the laundering of some of the saleproceeds.(d) He returned to New Zealand with his father on the second occasion toassist with collecting outstanding payment from the sale of the firstamount of two kilograms and to assist with the supply of the secondamount 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 partyto the agreement to supply the second amount of two kilograms.8 Above n 6, at [118] (footnotes omitted).9 The Court of Appeal in Zhang v R sets out indicia for assessing role at [126].(f) He was trusted to carry large amounts of cash. Mr Wilk had $40,000in cash in his suitcase when he went to the airport to leave New Zealandthe second time.[34] 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 tocharges. His actions are relevant only in that they show the trust his father placed inhim and Mr Wilk's obvious commitment to the criminal enterprise. A relevantinference can be drawn that these traits existed during the first and second visits toNew Zealand.[35] 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 July2017. During this period Mr Wilk travelled to New Zealand on three occasionsstaying weeks at a time. He handled large sums of cash and his father remittedoverseas more than $600,000. It can be inferred that Mr Wilk's offending had acommercial motivation.[36] We have reviewed relevant comparator cases and will refer to two: Clarke v R10and Agwu v R.11[37] Mr Clarke was one of six people involved in the distribution of almost threekilograms of cocaine. He had no role in importing the drugs to New Zealand, and wasinvolved in the operation for only three days. This Court found that the nine yearstarting point adopted in the High Court could not be faulted (although it wasultimately reduced to eight years to promote parity with Mr Clarke's co-offenders).12[38] Mr Agwu imported 4.5 kilograms of cocaine via post. He was assessed asbeing the head of the New Zealand branch of what was an organised, internationalcommercial venture. This Court found the 18 year starting point to be stern but withinrange.1310 Clarke v R [2013] NZCA 473.11 Agwu v R [2015] NZCA 619.12 Clarke v R, above n 11, at [24] and [32].13 Agwu v R, above n 12, at [8].[39] We assess Mr Clarke's role as a lesser one than Mr Wilk's. Mr Agwu's rolewas a greater one. Mr Wilk's starting point is unremarkably within the range betweentheir starting points.[40] 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 hasbeen no authoritative assessment of the social harm done by cocaine as was undertakenin Zhang in relation to methamphetamine. But, both are Class A drugs and the samepenalties apply. This Court very recently took a similar approach in an appeal relatingto the importing of cocaine.14[41] Band five of Zhang applies to quantities greater than two kilograms. Thestarting point range is 10 years to life imprisonment.15 Again, a starting point of11 years in respect of four kilograms seems unremarkable.[42] We conclude that a starting point of 11 years' imprisonment was available tothe Judge, particularly since the Judge (no doubt with totality in mind) did not imposean uplift for the money laundering charge. Mr Wilk's role was significant andprolonged. We note that in de Macedo v R the Court adopted an 11-year starting pointfor a person who imported 2.4 kilograms of cocaine even though he was assessed ashaving a lesser involvement in the importation.16Discount for personal mitigating factors[43] Mr Speed refers to the High Court decision of R v Cutler where personalmitigating factors similar to Mr Wilk's factors resulted in a discount of 20 per cent.17[44] We consider the Judge gave a discount within the range available to her. Wenote in particular that this was repeated offending by a mature man. The fact that somesix months after the offending Mr Wilk returned to New Zealand to retrieve and14 de Macedo v R [2020] NZCA 132 at [6]. The Court left open the question whether any distinctionshould be drawn between cocaine and methamphetamine.15 Zhang v R, above n 6, at [125].16 de Macedo v R, above n 15, at [21].17 R v Cutler [2019] NZHC 2737.launder a large sum of money concealed at Bastion Point by his father goes against amore fulsome discount.Discount for guilty pleas[45] Mr Speed submits the deal that was negotiated at the commencement ofthe trial changed the charge picture so significantly that Mr Wilk should be regardedalmost 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 chargewas importing the cocaine. That charge was withdrawn. The deal avoided the needfor a lengthy trial saving judicial time and resources. Mr Speed submits a discount of20 per cent for the guilty pleas was called for.[46] Mr Wilk negotiated a deal favourable to himself. He had always facedthe charge of supplying cocaine. The money laundering charges were consolidatedinto a single representative charge (it does seem that two charges were not proceededwith). Further, Mr Wilk did not accept the deal until he had received the sentenceindication. The charges to which he pleaded guilty were the strongest of the Crown'scharges.[47] Under these circumstances we find the discount of 15 per cent was within therange available to the Judge and was appropriate.Decision[48] An appeal against sentence necessarily requires an assessment as to whetherthere has been an error such that a different sentence should be imposed. However, thefocus must be on the end sentence. Where a defendant appeals on the basis hissentence is manifestly excessive then any error of the Judge in fixing the sentence willnot matter if the end sentence is not manifestly excessive.[49] We stand back and consider whether the end sentence of eight years and fivemonths' imprisonment is manifestly excessive. In our view, it is not having regard tothe totality of Mr Wilk's offending. The offending involved the supply of fourkilograms of cocaine carried out during two separate visits to New Zealand. Largesums were obtained. On the first visit, Mr Wilk assisted his father on 13 occasions toremit overseas a total of $17,856.72 and to exchange $7,878.80 into differentcurrencies. He was prevented from carrying $40,000 in cash overseas in his suitcase.This was significant and commercial offending. The sentencing purposes ofdenunciation and deterrence have to be emphasised.18[50] The appeal is therefore dismissed.Solicitors:Crown Law Office, Wellington for Respondent18 Sentencing Act 2002, s 7(1)(e)–(f).