WINKELS v NZ POLICE [2017] NZHC 2944

WINKELS v NZ POLICE [2017] NZHC 2944 [29 November 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2017-404-000324[2017] NZHC 2944BETWEEN TOBIAS WINKELSAppellantAND NEW ZEALAND POLICERespondentHearing: 27 November 2017Appearances: P Kaye for the AppellantK Muirhead for the RespondentJudgment: 29 November 2017JUDGMENT OF HINTON JCounsel/Solicitors:Peter Kaye, Barrister, AucklandMeredith Connell, AucklandIntroduction[1] The appellant, Mr Tobias Winkels, was sentenced to five years andfive months' imprisonment on 14 September 2017 by Judge Wharepouri in theManukau District Court.1[2] Mr Winkels was sentenced after pleading guilty to one charge of importing theclass B controlled drug MDMA, commonly known as ecstasy.2 The maximumsentence 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 ofeight years' imprisonment was manifestly excessive. He raises no other issue onappeal.Factual background[4] On 12 February 2017, Mr Winkels arrived at Auckland International Airporton board a flight from Perth, Australia. His city of origin was Prague, and he hadtravelled 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 wassubject to a baggage search.[5] A customs officer located three sealed plastic sleeves under a false base ofMr Winkels' suitcase, wrapped in duct tape and smeared with what appeared to becurry 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 centpurity. It amounted to 2.2 kilograms of pure MDMA. According to the Police1 R v Winkels CRI-2017-092-1741 ruling of Judge A M Wharepouri, 14 September 2017; andR 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 decisionsJudge 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 Winkelswas recruited to import the large quantity of MDMA indicated a larger network behindhis offending, but there were no details of such a network or distribution plans, and hehad to sentence Mr Winkels only on proven offending in line with the agreed summaryof facts.[9] Judge Wharepouri then referred to the relevant purposes and principles ofsentencing, identifying deterrence as being likely to be the primary purpose. He alsoreferred to R v Wallace and Christie, which is the leading sentencing authority forimportation 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 theysit in the overall hierarchy, not the label of their role.)7[11] Judge Wharepouri correctly summarised the three categories of offending inWallace as follows:8The 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. Thesecond category is the commercial manufacture or importation on asubstantial scale reflecting sophistication and organisation of operationsextended over a period of time though not involving massive quantities ofdrugs or prolonged dealing. These offences attract starting points of betweenfive and eight years. Finally, category 3 presents commercial operations butsmaller 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 offendinginvolving class B controlled drugs.6 R v Winkels [2017] NZDC 20786 at [9].7 At [9].8 At [10]. See R v Wallace and Christie [1999] 3 NZLR 159 (CA) at [30]-[32].[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 fiveyears' 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 vErenstein, relied on by the Crown, where a starting point of 10 years was set for theimportation of 3 kilograms of MDMA.9 He considered the Erenstein offending to bemore serious than the present offending, on the basis that it occurred "on a muchgreater 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 wasrelevant.11 In that case the defendant had been found guilty of three charges ofimporting and four charges of supplying MDMA. There was no evidence of thequantity of MDMA imported or sold, but Courtney J inferred that the quantities weresignificant. 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 singleimportation, which he considered was perhaps a further significant distinguishingfeature from Erenstein. His Honour noted that there may have been a largecommercial operation in the background, but such an operation had not been disclosedin the summary of facts.12[16] Judge Wharepouri categorised the offending in the following way:13There is no doubt that this was a significant importation but perhaps notcarried out on a major scale. I see your offending falling on the borderbetween category 1 and 2 of Wallace. It was deliberate, planned and highlypremeditated. It was also motivated by greed although to what degree isunclear. This is because you admitted that you involved yourself in theimportation 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].13 At [18].[17] Taking all of those matters into account, including R v Erenstein and R vKavaleros and other decisions to which he had been referred, Judge Wharepouriadopted a starting point of eight years' imprisonment.14[18] From that starting point, Judge Wharepouri gave a 25 per cent discount for MrWinkels' early guilty plea, a three-month discount for youth, a three-month discountfor previous good character and a three-month discount for hardship that Mr Winkelswould suffer by being incarcerated in a foreign country with no family support. Theend sentence he then reached was five years and three months' imprisonment.15[19] Counsel for the New Zealand Customs Service requested the matter be recalledto address two errors relating to the guilty plea discount and the quantity of MDMAinvolved in the offending.[20] Upon recall, Judge Wharepouri observed that he had incorrectly applied theguilty plea discount before allowing for any personal mitigating or aggravating factors,contrary to the approach in Hessell.16 When applying the approach from Hessell, theend sentence was five years and five months' imprisonment.17[21] In relation to the other error, he clarified that the total amount of pure MDMAinvolved in Mr Winkels' offending was 2.2 kilograms, but the total amount of MDMAseized was 2.9 kilograms with a purity of 79 per cent.18 Judge Wharepouri also notedin his further ruling that Mr Winkels was concerned with ensuring Judge Wharepourihad read his letter of remorse. Judge Wharepouri stated that he did not consider MrWinkels' letter of remorse merited a discount because it reflected his remorse relatingto his present situation, not the offending itself.19Approach on appeal14 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].19 At [6].[22] An appeal against sentence is brought under s 244 of the Criminal ProcedureAct 2011. In this case this Court is the first appeal court. The approach to be taken tothe appeal is set out in s 250(2) of the Criminal Procedure Act, which provides that theCourt 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 notintended to change the previous approach taken by the courts under theSummary Proceedings Act 1957.21 Under the Summary Proceedings Act, there had tobe an error vitiating the lower Court's original sentencing discretion. The appealproceeded on an "error principle." To establish an error in sentencing, it had to beshown that the Judge in the lower Court made an error whether intrinsically or as aresult 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 rangethat can properly be justified by accepted sentencing principles. Whether a sentenceis manifestly excessive is to be examined in terms of the sentence given, rather thanthe process by which the sentence is reached.24Parties' submissions20 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].24 Ripia v R [2011] NZCA 101 at [15].[27] Mr Kaye, for Mr Winkels, submits that Judge Wharepouri erred in categorisingMr Winkels' offending on the border of categories 1 and 2 of Wallace. Mr Kayesubmits that the appropriate category is the low end of category 2. Mr Kaye relies onR v Kavaleros and R v Mitchell for this proposition.25[28] As noted above, R v Kavaleros was briefly mentioned in Judge Wharepouri'sdecision, but I will canvass it now in further depth. In Kavaleros, the defendant hadbeen 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 operationinvolving the importation of large quantities of ecstasy pills. The operation had beenunderway for some time, and had a high degree of commerciality. In April 2008, thepolice 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 wasapproximately NZ$200,000, and in July just over NZ$150,000. Courtney J consideredthis to be evidence of large quantities of MDMA being imported, and considered thatfor individuals at higher levels in the operation, their offending was within category 1of Wallace. She considered that the defendant's involvement in four importationsbrought his offending into category 2 of Wallace, and she imposed a starting point ofsix years for the importation charges, but uplifted that by six months to take intoaccount the totality of the offending. There was no record of the quantity of MDMAinvolved in the defendant's offending.[29] Mr Kaye submits that the starting point in this case was excessive in light ofKavaleros, particularly because of the lack of any evidence of a sophisticatedcommercial operation in the summary of facts in this matter.[30] In R v Mitchell, the defendant was sentenced on two charges of importingMDMA, one charge of supplying methamphetamine as a class B controlled drug, andone charge of supplying methamphetamine as a class A controlled drug.26 Thedefendant 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 MDMA25 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 controlleddrug, 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 theimportation offences as the lead offences, and categorised the offending as being atthe 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 Jconsidered that the offending involved a good degree of sophistication andpremeditation, and she characterised the defendant as being a crucial player, albeit ona lesser scale than his co-defendants.[31] Mr Kaye submits that Mitchell also supports a finding that the starting pointJudge 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 2.2kilograms of pure MDMA involved in this matter.[33] The Crown also submits that Erenstein is directly comparable, contrary toJudge Wharepouri's assessment. The Crown submits that the total amount of MDMAseized in this matter is almost the same as that in Erenstein; Erenstein involved threekilograms 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 estimatedstreet value (the estimated street value in Erenstein being significantly higher than thepresent case). Mr Kaye agrees that street value is not a reliable indicator.[35] The Crown points to further similarities between Erenstein and this case, suchas the offending in both being premeditated, involving a one-off importation ofMDMA concealed in luggage, and the role of each defendant being as a courier. TheCrown submits that both Erenstein and this case involved an extremely high level ofimportation and represented commercial activity on a major scale. The Crown alsosubmits that Judge Wharepouri's reasons for distinguishing Erenstein are not borneout. In particular, Judge Wharepouri initially sentenced Mr Winkels on the basis thathe imported 2.2 kilograms of MDMA, and said that this case involved a smallerquantity of MDMA than Erenstein, as a basis for distinguishing the two. The Crownpoints to Judge Wharepouri's clarification in his further ruling that the total amountinvolved here was 2.9 kilograms, which is almost the same amount as that importedby Mr Erenstein.[36] On the basis that Erenstein is directly comparable, and a starting point of10 years' imprisonment was imposed in that case, the Crown submits that a startingpoint 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 isnot apparent on the face of Erenstein, it can be drawn from the sentencing notes ofMr 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 thesignificantly higher estimated street value at the time of the Erenstein offending is notmaterial.[38] Judge Wharepouri also considered that Mr Winkels' being involved in only oneinstance of importation may be a distinguishing feature. On the facts of Erenstein, thedefendant was charged in relation to only one instance of importation, so that is not avalid point of distinction.[39] Judge Wharepouri observed that a distinguishing feature of the two cases istheir scale. Mr Erenstein was charged alongside two co-offenders and there wasinformation regarding the wider operation he was involved in, whereas the Policesummary of facts here does not comment on the wider operation. However, Harrison Jmade no reference to the size of the wider operation. Further, while the categorydescriptions in Wallace are a little ambiguous, I consider the prevailing factor must bequantity, not size of operation, given category 2 is described as "not involving massivequantities of drugs". Put differently, "major scale" (category 1 in Wallace) includesmajor 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 involvedhere, given the quantity of drugs, the method of concealment and the route Mr Winkelstook.[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 ofeight years' imprisonment here was not manifestly excessive.[42] I should add that Mr Kaye submits also that the starting point in Erenstein mayhave been agreed, (and the case is therefore not reliable precedent). While agreementbetween counsel is a possibility, on the face of the judgment, it is clear Harrison Jturned his mind to the point, and the finding has been at least implicitly approved bythe Court of Appeal in Kadosh and Quinlan.28[43] I do not consider I can safely draw a comparison with Kavaleros. It is limitedby the fact that the quantity of MDMA was not known. Courtney J had to act withlittle information. I do not consider that it is appropriate to rely on that case to findthat 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 inErenstein might be appropriate. Consistent with that, the starting point of eight yearsadopted 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 thequantity 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 offendersrequires close assessment of the facts of the particular case, comparisons with othercases must be drawn with care.29 With that in mind, after considering the casesreferred to above and the circumstances of Mr Winkels' offending, I do not consider28 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 tothe scale of the operation Mr Winkels was involved in, the quantity involved supportsthe conclusion Judge Wharepouri reached that this offending lies on the borderbetween category 1 and 2 of Wallace, in fact arguably higher.Result[46] The appeal against sentence is dismissed.-------------------------------------------------------Hinton J