The Queen v Klokstad [2009] NZCA 503 (22 October 2009)

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The Queen v Klokstad [2009] NZCA 503 (22 October 2009)

Last Updated: 27 October 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA459/2009

[2009] NZCA 503

THE QUEEN

v

MONICA JANE KLOKSTAD

Hearing: 15 October 2009

Court: Glazebrook, Potter and Wild JJ

Counsel: C B Cato for Appellant
B D Tantrum for Crown

Judgment: 22 October 2009 at 4.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

___________________________________________________________________

REASONS OF THE COURT
(Given by Potter J)

Introduction

[1] The appellant pleaded guilty to:

• (a) Three counts of importing the Class A controlled drug methamphetamine; and
• (b) One count of conspiring to import methamphetamine.

[2] The appellant was sentenced by Simon France J in the High Court at Wellington on 17 July 2009 to eight years and three months’ imprisonment with a minimum period of imprisonment of four years. She appeals against the sentence on the ground that it is manifestly excessive and that the four year minimum period of imprisonment is inappropriate.

Background facts

[3] The appellant made three specific importations of methamphetamine between March and May 2007. The conspiracy charge covered an earlier period between 1 November 2006 and 1 February 2007 during which there were two known importations of methamphetamine on 7 and 27 January 2007. On each occasion the quantity of methamphetamine imported was 52-56 grams and each importation had a value between $52,000 and $56,000. The total quantity of methamphetamine imported by the appellant was between 260-280 grams with a value between $260,000 and $280,000.
[4] The appellant became criminally involved in the importation of methamphetamine through her late uncle, Godfrey Sadaraka, who died in July 2006. Mr Sadaraka had been in custody in Rimutaka Prison with other members of a methamphetamine syndicate who together developed the plan for importation of the drugs from Thailand.
[5] Mr Sadaraka became the head of the Auckland based group of the syndicate. A Mr Ian Nuku was the head of the Wellington group of the syndicate. The Judge described the appellant as taking over the role of Mr Sadaraka as head of the Auckland group following his death.
[6] The various importations were organised through a Thai woman resident in New Zealand. The drugs were sent by a second Thai woman resident in Thailand. The drugs were placed in Nivea cosmetic containers stored amongst items of clothing and the like. On each occasion the drugs were sent to a post office box. In Wellington they were sent to a new box for each importation, in Auckland to the same box but with different addressees.
[7] When the central contact person in Thailand was arrested the meticulous records she kept were accessed. They included what was sent and when, the track and trace number for each package and the quantity, and also the payments she received from New Zealand.
[8] The appellant’s role in these importations was summarised by the Judge at [24] of the sentencing notes:

Further, here is what Ms Klokstad has done. She has taken over a drug importation ring initially run by her uncle. She has arranged importations. She has personally organised the transfer of the money to Thailand. She has provided the address to which the drugs could be sent. She has arranged for her son to collect the drugs. She has rejected a package for inadequate quality. And, she has written to the main New Zealand based organiser and said she is loyal and that together they can build “a very big business”.

[9] The Judge recorded at [11] that there was a history of text traffic between Ms Klokstad and the Thai woman based in New Zealand, involving over 300 text messages. He quoted from a letter from the appellant to this contact which was set out in the Summary of Facts:

Hope our business will be good and prosperous one for all ... there is only one concern for me and that is the coin situation. I do hope that you let your friend know that we are loyal people and that is how my uncle operated. He honoured his word, in whatever he said. This could be a very big business for us all but must be honest and loyal that is the foundation for a prosperous business.

And as for the texting, like I said my husband does not no what I am doing so please text me first, for example, Hi Monica how are you. I will text you back letting you know it is OK.

The sentence appealed

[10] The Judge set out the background facts in some detail. He said he did so in order to be able to respond to the position advanced by counsel on behalf of Ms Klokstad.
[11] He recorded that that the appellant is a 43 year old mother of six children who had been in her present relationship for more than fifteen years; that she has no previous convictions; that her husband was unaware of her offending; that she is a qualified pre-school teacher and well respected by those who know her. He accepted there was no evidence of significant profits having been made by the appellant.
[12] However, at [25] he rejected any protestations that the appellant was some sort of peripheral or uncommitted participant. He said:

Ms Klokstad is, in my view, a serious drug importer who has stopped only because she has been caught.

[13] In considering the appropriate starting point for sentencing, the Judge referred to R v Fatu [2006] 2 NZLR 72 (CA). He then referred to the sentencing of Mr Nuku who he said occupied a similar role in Wellington to that played by Ms Klokstad in Auckland and was sentenced for his involvement in the same operation.
[14] He noted that the starting point for Mr Nuku was eleven years. That reflected three importations totalling 275 grams. In the case of the appellant there were five importations totalling 260-280 grams and there was the conspiracy count involving more offending over a longer period. He said he regarded the conspiracy aspect and the greater number of importations in which the appellant was involved, as matching the involvement by Mr Nuku from the outset of the plan implemented by the group of prisoners in Rimutaka. He considered those factors supported an equivalent starting point of eleven years.
[15] In mitigation he took into account the guilty plea. He noted that the charges were laid on 14 December 2007, committal occurred on 25 June 2008 and a guilty plea was entered on 12 June 2009. He expressly rejected a submission that credit for the guilty plea should be in the vicinity of 25 per cent. He said that eleven months had elapsed since depositions and the plea was entered when there were just three months to trial. He considered the appropriate discount for the plea entered at that point to be in the range of 15 - 20 per cent.
[16] The Judge referred to the significant material filed in support of the appellant testifying to her good character and her work in the area of education of young people. He accepted the genuineness of the experience of those who wrote in support but wondered if some of them had a misunderstanding of what the appellant had done and the degree of her involvement. He described the appellant as “one of the exploiters” in relation to a drug which is devastating people’s lives.
[17] He considered the appellant was entitled to credit for her offending free past and accepted that in other ways she had many very good qualities. Balancing the relevant factors he allowed a total discount of two years nine months (approximately 25 per cent). The end sentence was accordingly eight years three months’ imprisonment.
[18] Turning to the minimum term of imprisonment sought by the Crown, the Judge accepted there was no requirement to protect the public in the case of Ms Klokstad. He considered, however, that a minimum non-parole period of one-third was insufficient in terms of punishment and general deterrence. He imposed a minimum term of imprisonment of four years.

Appellant’s submissions

Starting point

[19] Mr Cato submitted that the starting point of eleven years was excessive and should have been nine to ten years. He submitted that the Judge drew too closely on the comparison with Mr Nuku described by counsel in written submissions as:

A committed drug recidivist and an architect, (who) could not say that he was doing it for other than his personal gain ... Klokstad was not.

He further noted that Mr Nuku’s offending occurred within a short time of his being released from prison for previous serious drug offending. In Mr Cato’s submission the eleven years starting point taken for the appellant was manifestly excessive by way of comparison, given the factors relating to Mr Nuku’s offending emphasised in submissions.

[20] We do not accept those submissions. It was appropriate for Simon France J to draw a comparison between the offending of the appellant and Mr Nuku. They were involved in the same importing operation and occupied comparable positions in the syndicate, Mr Nuku in Wellington and Ms Klokstad in Auckland. Further, the quantities imported were similar; Mr Nuku 275 grams and the appellant 260 - 280 grams. We accept the Crown’s submission that it was open to the Judge to find that an equivalent starting point was justified on the basis that Mr Nuku’s earlier involvement was balanced by the further charge of conspiracy the appellant faced and the appellant’s greater number of importations.
[21] Further, the offending falls within band 3 of the categories identified in Fatu (large commercial quantities of 250 - 500 grams) which attracts a starting point of nine to thirteen years’ imprisonment. The Court of Appeal stated in Fatu at [36] that the more significant the role of the offender in any importation, the closer the appropriate sentence will be to the top end of the relevant sentencing band.
[22] The Judge found the appellant was a “serious drug importer” and expressly rejected submissions that she was a peripheral participant or that she acted under some form of duress. She was clearly not a “mule” or a “bit player” in the operation but a central and committed participant who headed the Auckland operation. In all the circumstances, the eleven years’ starting point was clearly open to the Judge.

Mitigation

[23] Mr Cato submitted that the discount for the guilty plea should have been 20 per cent. He said the plea was entered very soon after he became counsel for the appellant and was notified to the Crown immediately. He further submitted that the “subjective factors” relating to the appellant, including her personal circumstances, should have received greater prominence and focus in considering the discount for mitigating factors.
[24] He said that both Mr Nuku and the appellant received a discount of 25 per cent (which in the case of Mr Nuku reduced the revised starting point of sixteen years to an end sentence of twelve years’ imprisonment), but submitted that in the case of the appellant the “subjective factors” justified a greater discount. He referred to the judgment of the Supreme Court in R v Jarden [2008] 3 NZLR 612 at [12]:

As the courts have repeatedly said, and as we emphasise again, in sentencing those convicted of dealing commercially in controlled drugs the personal circumstances of the offender must be subordinated to the importance of deterrence. But this does not mean that the personal circumstances can never be relevant.

Mr Cato sought to rely on the last sentence in support of his submission that the personal circumstances of the appellant should have received greater recognition in the discount allowed.

[25] We do not agree. The appellant’s guilty plea was not entered until some eleven months after depositions when there were only three months before trial. The discount range adopted by the Judge of 15 – 20 per cent was open to him.
[26] The Judge specifically took into account, at [35] of his sentencing notes, the appellant’s offending free past and other relevant personal circumstances. He increased the discount to 25 per cent to reflect these. Given the seriousness of the appellant’s offending, the importance of deterrence and the clear direction of the courts, particularly the Supreme Court in Jarden, that in serious commercial drug offending personal circumstances do not weigh heavily and must be subordinated to the importance of deterrence, the discount of 25 per cent was entirely appropriate.

Minimum period of imprisonment

[27] Mr Cato submitted that, given that protection of the public was not an issue (as had been acknowledged by the Judge), a minimum period of imprisonment was inappropriate and that the minimum non-parole period of one-third of the sentence which would otherwise apply, (two years nine months) would be sufficient in all the circumstances, including recognition of the “subjective factors”, in terms of punishment and general deterrence. As a fallback position, Mr Cato submitted that the minimum period of imprisonment of four years was too long. He referred to R v Anslow CA182/05 18 November 2005 in which this Court noted at [27] that in cases under the Misuse of Drugs Act 1975 where the finite term of imprisonment was nine years or more, minimum periods of imprisonment had commonly been imposed. By contrast, this was seldom the case where the finite term imposed had been less than nine years’ imprisonment.
[28] On that aspect, the Crown referred to the recent judgment of this Court in R v Wang [2009] NZCA 118. This Court allowed an appeal against the length of the minimum term of imprisonment, five years, imposed in respect of an effective sentence of eight years three months (reduced from a starting point of eleven years’ imprisonment). It reduced the minimum term to four years’ imprisonment, noting there was no need to reflect the aspect of protection of the community because Mr Wang would be deported immediately after serving his sentence. However, this Court said the gravity and nature of the offending required a minimum term that reflected the principles of denunciation, deterrence and accountability.
[29] The minimum period of imprisonment imposed in this case was less than 50 per cent of the end sentence. The Judge paid appropriate attention to the relevant factors including that there was no requirement to protect the public, but observed at [37]:

Methamphetamine is a serious problem and responses to those who occupy the upper echelon of importation and supply must be stern.

[30] The imposition of a minimum period of four years’ imprisonment was open to the Judge.

Conclusion

[31] No error of principle has been identified in the approach the Judge took to sentencing. This was very serious offending involving the commercial importation of significant quantities of the Class A drug methamphetamine pursuant to a deliberate plan in which the appellant was a committed player. Neither the end sentence of eight years three months’ imprisonment nor the four years minimum period of imprisonment can be criticised.

Result

[32] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington