R v Watkins CA 354/97 [1998] NZCA 25 (26 February 1998)

Last Updated: 17 May 2011

IN THE COURT OF APPEAL OF NEW ZEALAND CA354/97

THE QUEEN

v

STEPHEN LEONARD WATKINS Coram: Eichelbaum CJ

Gault J Thomas J

Hearing: 26 February 1998

Counsel: V C Nisbet for Appellant

C L Mander for Crown

_{Judgment: 26 February 1998}

_{JUDGMENT OF THE COURT DELIVERED BY GAULT J}

The appellant was sentenced in the District Court at Wellington on

2 September 1997 to concurrent terms of imprisonment of seven years for importing a Class B controlled drug and six years for conspiracy to supply the same drug. The appeal is on the ground that the effective sentence of seven years is excessive and inappropriate in all the circumstances.

The appellant was a part owner of a business engaged in the importation and sale of records. With another part owner, Nicholas Lorite, and perhaps others, he was party to the importation in a consignment of records and compact discs of a quantity of some 5,200 tablets containing the Class B controlled drug MDMA commonly known as Ecstasy. With information obtained through warranted electronic surveillance, the police intercepted the consignment, substituted other tablets and followed those to the appellant. After initially denying he knew what the tablets were, the appellant quickly admitted his involvement. He told the police he had invested $10,000 towards the

purchase of the drugs and expected to make about $70,000. He admitted the intention to sell the tablets after retaining some for himself. He was found to have remitted

$16,525.54 to the United Kingdom but claimed part of this was for furniture.

There was the usual issue about the street value of the tablets imported. The police contended that they sell on the street for $90 each so that the total value of the consignment was about $470,000. On analysis the tablets were found to contain 322 grams of MDMA. It was said to have been the largest importation of this drug detected in New Zealand reflecting increasing use of MDMA as a stimulant and mood enhancer. The empathogenic emotional release effect is sought to magnify the impact of loud music and flashing lights at dance parties referred to as “raves”. It is a fashionable narcotic as indicated by the appellant’s view that he was importing a “good time pill”. It is, nevertheless, an illegal Class B drug, rightly so classified according to expert evidence filed.

In full and careful sentencing remarks the Judge rightly rejected the recommendation in the pre-sentence report for a fine and suspended sentence. He instructed himself by reference to the judgments of this Court relating to commercial importation of Class B drugs drawing most directly on R v Albon CA544/95, judgment 26 June 1996. He adopted a starting point of nine years and reduced that by two years for two factors. The first was that while the appellant was a principal offender he was not the most serious offender. The second was the appellant’s early guilty plea and co-operation with the police.

In support of the appeal it was submitted that the nine year starting point taken by the Judge was too high; that insufficient allowance was made for the early guilty plea and co-operation and that the sentence is too harsh in comparison with that subsequently imposed on the co-offender Lorite.

As noted in Albon this Court has upheld sentences of 10 years and 8½ years for importing Class B drugs: R v Collier (morphine) CA188/81, judgment 30 October

1981, R v Schnellinger (hashish) CA223/82, judgment 18 May 1983. In those cases

the sentences mentioned were after allowing for pleas of guilty. While those cases involved different drugs and different facts - particularly repeated importations, but of lesser quantities, they indicate the relevant levels of sentencing. In that light it cannot be said that for the quantity of MDMA involved in this case the starting point, before adjustment for mitigating factors, of nine years was not open to the sentencing Judge.

The early guilty plea called for recognition which it received. The co-operation with the authorities went little further than full and frank admissions in circumstances where the police had overwhelming evidence against the appellant. The deduction of two years was reasonable.

The co-offender Lorite pleaded guilty at a later stage (after depositions) and was sentenced in the High Court. He too claimed not to have been the principal offender. The sentencing Judge referred to the sentences imposed on the present appellant and concluded that Lorite must be treated equally. He expressly recorded that he did not take the later guilty plea into account against Lorite.

It was submitted that Watkins, having played a lesser part, and pleaded guilty at the first opportunity should have received a lower sentence than Lorite.

While the statement of facts on which the appellant pleaded guilty recorded that it was Lorite who travelled to the United Kingdom and ensured that the drug was packed with the consignment of records, it gives no other basis for the contention that Watkins had a lesser role in the offending. Certainly at his sentencing Lorite pressed the opposite contention. In the circumstances there can be no criticism of their culpability being equated.

That Lorite was given the same reduction for his guilty plea entered at a later stage is no sufficient reason for interfering with the allowance made for the appellant’s plea which otherwise was appropriate. That leniency towards the co-offender does not give rise to such disparity as warrants interference on appeal having regard to the principles set forth in R v Rameka [1973]2 NZLR 592.

For this large scale commercial operation the sentence is unobjectionable and the appeal is dismissed.

Solicitors

Val Nisbet, Wellington, for Appellant

Crown Solicitor, Wellington, for Crown