The Queen v Boyarski [2009] NZCA 466 (9 October 2009)

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The Queen v Boyarski [2009] NZCA 466 (9 October 2009)

Last Updated: 13 October 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA375/2009

[2009] NZCA 466

THE QUEEN

v

SUSAN LYN BOYARSKI

Hearing: 22 September 2009

Court: O'Regan, Venning and Winkelmann JJ

Counsel: C J Tennet for Appellant
A M Powell for Crown

Judgment: 9 October 2009 at 10.30 am

JUDGMENT OF THE COURT

The application for an extension of time in which to file an appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

[1] Ms Boyarski seeks an order extending the time for filing an appeal against a sentence of 10 years, 6 months imprisonment imposed on her in the High Court, Auckland, on 29 May 2007, following her conviction for importation of the class A controlled drug methamphetamine. Ms Boyarski seeks to appeal her sentence on the ground that it was manifestly excessive. The time for filing an appeal expired in mid 2007, and the appeal and application were filed in June 2009.
[2] The Crown opposes the grant of an extension of time, on the grounds that Ms Boyarski has not adequately explained her lengthy delay in bringing the appeal, and that the appeal has no prospect of success. With the agreement of counsel, the application for an extension of time was heard separately from the proposed appeal.

Circumstances of offending and sentence

[3] Ms Boyarski and her co-offender appeared before Baragwanath J for sentencing following pleas of guilty to one count each of importing methamphetamine and one count each of possession of that drug for supply.
[4] The relevant facts for the purposes of sentencing were set out at paragraph [2] of the sentencing notes:

You arrived in Auckland by air on 28 August 2006 from Hong Kong. Among your luggage were 43 resin picture frames distributed among four items of luggage, two belonging to you, Mr Nordstram, and two to you, Ms Boyarski. Fortunately from the standpoint of the New Zealand community the customs officers were suspicious and caused a search to be made and each picture frame was found to contain a quantity of methamphetamine. There were also three sets of shot glasses which also contained methamphetamine within your luggage. The total amount of the methamphetamine was 4.734 kg with potential street value of about $4.7 m. Samples of the methamphetamine were tested and found to have a purity of 77 to 78%.

[5] The Judge identified that the decision of this Court in R v Fatu [2006] 2 NZLR 72 provided the necessary guidance as to the appropriate sentencing range for Ms Boyarski’s offending. He noted that the highest of the bands described in Fatu relates to importing very large commercial quantities, defined as 500 g or more, and as carrying 12 years to the maximum of life imprisonment provided by statute.
[6] He said that his assessment of the appropriate starting point was influenced by the very large quantity of methamphetamine imported, which on its own could push Ms Boyarski up towards a 16 year starting point. Against that he weighed the fact that she was involved as a courier only with limited knowledge of the overall scheme, which would push the starting point down towards 14 years. He then reduced the sentence to 11 years on account of her guilty plea, and a further six months for Ms Boyarski’s personal circumstances.
[7] He imposed a minimum non-parole period of 5 years, or just under half the final sentence. In doing so he said that he applied s 86(3) of the Sentencing Act 2002 which he said provided:

For the purposes of this section, the circumstances of an offence may be regarded as sufficiently serious [that is for the imposition of a minimum non-parole period] if the court is satisfied that the circumstances take the offence out of the ordinary range of offending of the particular kind.

Relevant principles

[8] In dealing with an application for extension of time within which to file an appeal, the touchstone is the interests of justice in the particular case. Where the Court is asked to make that evaluation, the merit of the proposed appeal is of considerable importance (R v Knight [1998] 1 NZLR 583 (CA)).
[9] Although we think there is something in the Crown’s point that Ms Boyarski’s affidavit filed in support of the application does not adequately explain the entire period of delay, we do not propose to consider this point in detail as the merit of the appeal is determinative of the application for leave.

Merits of the appeal

[10] The following points are made in support of the argument that the sentence is manifestly excessive:

1. The starting point adopted was too high, in particular because too little emphasis was placed on the fact that Ms Boyarski believed she was importing steroids.
2. In any event, the Judge did not use appropriate sentencing methodology because he did not adopt a starting point.
3. The Judge allowed inadequate credit for Ms Boyarski’s personal circumstances.
4. No minimum non-parole period should have been imposed.

[11] Dealing with the first two points together, we agree it is not entirely clear from the Judge’s sentencing notes what starting point was adopted, although it seems likely to have been around 14 and a half years if a 25% reduction reduced the sentence to 11 years. It is not enough in any case for an appellant to point to deficiencies in how a sentence is constructed. To succeed with a sentence appeal Ms Boyarski would have to show that the final sentence arrived at was manifestly excessive.
[12] In this case the quantity involved in the importation was many times in excess of the 500 gram threshold for band 4 in Fatu. However, allowing that Ms Boyarski’s role was that of courier a starting point in the range of 14 to 16 years was clearly available to the sentencing Judge.
[13] It would have been quite wrong for the Judge to further reduce that starting point to reflect the claim Ms Boyarski now makes that she believed that the drugs were steroids. Such belief is inconsistent with the guilty plea she entered to the charge of importation of a class A drug. It is an element of that offence that the offender knew that the substance imported was a class A controlled drug, although not necessarily the identity of that drug.
[14] As to the third proposed ground of appeal, it is also clear that adequate credit was given by the Judge for personal mitigating factors. The Judge identified Ms Boyarski’s use of methamphetamine and her family circumstances as things he did take into account, although noting that the seriousness of the offending meant that little weight could be given to them. That approach and the discount given are entirely appropriate (R v Jarden [2008] 3 NZLR 612 (SC)).
[15] It is true that Ms Boyarski will be kept away from her children for a long period of time by reason of this sentence, but that is the natural consequence of her own conduct, involving herself as she did in the importation of drugs into a foreign country.
[16] Other matters which were urged upon us by counsel for Ms Boyarksi as justifying a reduction in sentence were matters which arise after sentence, namely Ms Boyarski’s proposed efforts at rehabilitation, and circumstances affecting her family. Although it is self-evident, this argument forces us to observe that events arising post-sentence cannot be taken into account at sentence. Nor can this Court undertake a resentencing exercise every time fresh events or circumstances arise post-sentence, as counsel for Ms Boyarski seems to suggest is appropriate. The circumstances Ms Boyarski’s counsel raises as justifying a greater reduction in sentence are properly taken into account in the parole process if they are relevant.
[17] That takes us to the final point raised by Ms Boyarski: the minimum period of imprisonment imposed. We note in this regard that the Judge quoted the then repealed s 86(3) of the Sentencing Act in dealing with this issue. Section 86(3) was repealed from 7 July 2004, and s 86(2) was amended as from that date to read:

The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes: -

(a) holding the offender accountable for the harm done to the victim and the community by the offending:

(b) denouncing the conduct in which the offender was involved:

(c) deterring the offender or other persons from committing the same or a similar offence:

(d) protecting the community from the offender.

[18] The Judge’s error in this regard was not, however, material. Although the amendment to s 86 omits reference to the “sufficiently serious” criteria to which the Judge referred, the new s 86(2) largely adopted the approach that had been taken by the courts in interpreting and applying s 86(3). (See R v Brown [2002] 3 NZLR 670 (CA)). In any case, the imposition of a minimum period of imprisonment was clearly appropriate given the seriousness of the offending and the correspondingly strong need for a deterrent sentence (R v Anslow CA182/05 18 November 2005).
[19] For these reasons we are satisfied that the proposed appeal has no prospect of success, and that it is in the interests of justice that the extension of time for the filing of an appeal be refused. The application is therefore declined.

Solicitors:
Crown Law Office, Wellington