R v Wilk [2018] NZHC 2704 (18 October 2018)

Last Updated: 23 November 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-004-7162 [2018] NZHC 2704

THE QUEEN

v

RALPH ALAN WILK

Hearing:	18 October 2018
Appearances:	J Murdoch for Crown A G Speed for Mr Wilk
Sentence:	18 October 2018

SENTENCING REMARKS OF PETERS J

Solicitors: Meredith Connell, Crown Solicitor, Auckland Counsel: A G Speed, Auckland

R v WILK [2018] NZHC 2704 [18 October 2018]

Introduction

[1] Mr Wilk, you are for sentence on two representative charges, one of being a party to the supply of a Class A controlled drug (cocaine), and the other of engaging in money laundering transactions knowing or believing that all or part of the cash was the proceeds of an offence.¹

[2] I gave you a sentence indication on 24 September 2018 on the two representative charges.²

[3] You accepted the indication immediately. I entered the convictions and ordered a Provision of Advice to Courts (“PAC”) report.

[4] At the Crown’s request, I am to discharge you on all remaining charges and I do that now.

[5] I shall not repeat what I said in the sentence indication because I am attaching a copy to this note. But it is enough to say when I gave the indication, I had an agreed summary of facts and very helpful submissions from both the Crown and Mr Speed.

[6] Since then, I have received the PAC report. It makes for disappointing reading in the sense that it confirms what is said in the summary of facts, namely that your father brought you into this offending and now has left you here to face the consequences. This is very unfortunate because but for this offending you seemed to be doing very well.

Starting point

[7] For the reasons given in the sentence indication, I adopted a starting point of 11 years’ imprisonment. That took account, to the extent possible, the fact that you were acting under your father’s direction. I declined to increase the starting point for the separate money laundering offending for the reasons set out in the indication.

¹ Misuse of Drugs Act 1975, s 6(1)(d) and (2)(a); and Crimes Act 1961, s 243(2).

² R v Wilk [2018] NZHC 2514.

[8] I did not then make any reduction to the starting point for personal factors although of course I reduced it by 15 per cent to take account of your guilty pleas.

[9] Mr Speed has now proposed that I should give you a further, modest, discount for prior good character and also for the fact that you will find it more difficult to serve a sentence away from your home country.

[10] I have read now the reports of your compliant, probably fair to say model, behaviour in prison and the manner in which you have taken advantage of the opportunities open to you in prison to increase your skills and learn what you can. I also have read your letter, which I accept is heartfelt and shows appropriate remorse for your offending, and I have read the letters that Mr Speed provided me from your mother and your partner. Not surprisingly, your mother is deeply upset that your father, who does not appear to have assisted with your upbringing, should now have got you involved in this very serious offending, and in a foreign country, when she is not able to visit you and be here to help you as she would wish.

[11] There is no dispute by the Crown about any of these matters and I propose to take account of them by reducing the starting point by one year so that the starting point becomes 10 years, rather than the 11.

[12] I then give the 15 per cent discount for your guilty plea.

[13] The final outcome then is an end sentence of eight years, five months’ imprisonment. I will not be imposing a minimum period of imprisonment for the reasons I gave in my indication, namely that on completion of your sentence you will be leaving New Zealand.

Sentence

[14] Mr Wilk, please stand:

(a) On the representative charge of being a party to the supply of a Class A controlled drug, I sentence you to eight years, five months’ imprisonment.
(b) On representative charge of money laundering, I sentence you to one year imprisonment, to be served concurrently – that means at the same time – with the sentence I have imposed on the supply charge.

(c) No minimum period of imprisonment is imposed.

[15] Please stand down.



Peters J

NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-004-7162 [2018] NZHC 2514

THE QUEEN

v

RALPH ALAN WILK

Hearing:	24 September 2018
Appearances:	J Murdoch and S T L Teppett for Crown A G Speed for Mr Wilk
Date:	25 September 2018

SENTENCE INDICATION OF PETERS J

Solicitors: Meredith Connell, Crown Solicitor, Auckland Counsel: A G Speed, Auckland

R v WILK [2018] NZHC 2514 [25 September 2018]

[1] This records the sentence indication I gave Mr Ralph Wilk (“Mr Wilk”) at
3.30 pm yesterday afternoon. The indication followed a request by counsel at 10 am yesterday, and receipt in the afternoon of a summary of facts agreed for the purpose of the indication (“summary”) and counsel’s written submissions. I also had the benefit of hearing from counsel.

[2] The indication was sought on the basis of two representative charges, one of being a party to the supply of a Class A controlled drug (cocaine) (“supply offending”), and the other of engaging in money laundering transactions knowing or believing that all or part of the cash was the proceeds of an offence.³

Background

[3] The principal points that appear from the summary are these.

[4] Mr Wilk was involved in the supply offending with his father, Mr Ryszard Wilk. In the time period covered by the two charges (6 September 2016 to 16 April 2017), both travelled from Poland to New Zealand twice. On the first occasion both were in New Zealand for two weeks in September 2016. They returned in early November 2016, with Mr Wilk leaving on 20 November 2016 and his father remaining for a substantial period thereafter.

[5] Shortly after arriving in New Zealand on the first occasion, Ryszard Wilk took possession of at least four kilograms of cocaine from a courier, said to be a Mr Cherushev. Ryszard Wilk was acting in concert with a Mr Patryk Lukasik, who did not enter New Zealand. The Crown is seeking to extradite Ryszard Wilk and Mr Lukasik.

[6] During the September 2016 visit, together the Wilks supplied two kilograms of cocaine to unknown New Zealand based persons, although were not then paid in full. Mr Wilk was acting under instructions from his father.

³ Misuse of Drugs Act 1975, s 6(1)(d) and (2)(a); and Crimes Act 1961, s 243(2).

[7] The Wilks left New Zealand on 22 September 2016, leaving the balance of the cocaine (presumably approximately two kilograms) in New Zealand.

[8] The Wilks returned to New Zealand on 6 November 2016, intending to receive the balance of the sum due for the two kilograms supplied in September 2016 and to arrange and facilitate further supplies from the balance remaining.

[9] During this time, an unknown male asked Mr Wilk whether he and his father could supply a further two kilograms to those persons they had previously supplied. The Wilks were amenable to this, subject to their prior receipt of the sum that remained outstanding.

[10] Mr Wilk had subsequent conversations with the unknown male regarding when the balance due would be paid. Ultimately, the balance was paid.

[11] Mr Wilk left New Zealand on 20 November 2016. Police searched Mr Wilk’s luggage on his departure and seized NZ$40,000.

[12] Although the balance of the cocaine was supplied, it is not known whether this occurred before or after Mr Wilk’s departure.

[13] Whilst in New Zealand on these occasions, the Wilks exchanged NZ$ for US$ and remitted sums overseas. The sums involved were modest, on my reading being a combined sum of (NZ$)26,000 or thereabouts.

Indication

[14] The purposes of sentencing relevant in cases of Class A offending are deterrence, denunciation, and holding the defendant to account and responsible for what is offending of the utmost seriousness.

[15] In fixing the starting point, I have regard to the substantial quantity involved (two to four kilograms) and the deliberate nature of the offending, but also to the secondary or lesser role that Mr Wilk played, compared to his father.
[16] Mr Speed, for Mr Wilk, submitted that a starting point of eight to nine years would be appropriate with no uplift for the money laundering charge. In support of his proposed starting point, Mr Speed referred me to Clarke v R.⁴ Mr Clarke was one of a group of offenders, some importers and some couriers, in respect of approximately three kilograms of cocaine. Matters were complicated in the Clarke case by the sentencing of a Mr Lockie, who it is clear the Court of Appeal thought had been treated leniently. This led the Court to reduce Mr Clarke’s starting point from nine to eight years imprisonment, to maintain a degree of parity.

[17] In this case, crown counsel, Ms Murdoch, submitted a starting point on the supply offending of between 10 to 13 years, with a one year uplift for the money laundering charge. Ms Murdoch submitted, and I agree, that Mr Wilk is more culpable than Mr Clarke.

[18] Other cases to which I have had regard in the time available are Agwu v R (involving the importation and supply of more than four and half kilograms, attracting a starting point of 18 years) and R v Cook, which involved the possession for supply of 35 kilograms of cocaine, so a vastly greater quantity.⁵ I have also reviewed the table attached to Katz J’s sentencing note in Cook, which summarises the relevant details of similar cases.

[19] Having regard to all of these matters, I consider a starting point of 11 years on the supply offending warranted. I do not propose to uplift that starting point for the separate money laundering offending. As I have said, the sums are very modest and, in my view, part and parcel of the supply offending and to be treated concurrently.

[20] Mr Wilk’s guilty pleas come late in the piece. That said, his guilty pleas will provide real assistance to the Crown, as Ms Murdoch acknowledged, including in efforts to extradite Mr Wilk’s father and/or Mr Lukasik. Mr Speed proposed a reduction of 20 per cent but, in my view, that is too high given the late stage at which the pleas would be entered. I shall allow 15 per cent, however, as the Crown proposes.

⁴ R v Clark [2013] NZCA 473.

⁵ Agwu v R [2015] NZCA 619; and R v Cook [2017] NZHC 2034.

[21] Thus, subject to any additional discount that I might be persuaded to give at sentence, Mr Wilk’s end sentence would not exceed nine years, four months imprisonment.

[22] I do not consider a minimum period of imprisonment is required. A sentence of nine years, four months is a lengthy one in its own right. Also, Mr Wilk will be deported as soon as he has served his sentence and thus poses no further risk to the community.




Peters J