R v Apostolakis HC Auckland CRI-2009-404-000384 [2011] NZHC 1109 (14 September 2011)

Last Updated: 16 October 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2009-404-000384}

THE QUEEN

v

JOHN ANGELO APOSTOLAKIS

Appearances: A M Wharepouri for Crown

D A Ewen for Prisoner

Judgment: 14 September 2011 at 9:00 AM

_{SENTENCING NOTES OF COURTNEY J}

Solicitors: Meredith Connell, P O Box 2213, Auckland

Fax: [phone] – M Wharepouri

Counsel: D A Ewen, P O Box 5744 Lambton Quay, Wellington 6145

_{Fax: [phone]}

R V APOSTOLAKIS HC AK CRI-2009-404-000384 14 September 2011

Introduction

[1] John Angelo Apostolakis, you appear for sentence today, having been found guilty on one charge of importing the class B controlled drug Ecstasy. This charge represents a small part of a large and sophisticated commercial operation involving the importation of large quantities of Ecstasy hidden in gift baskets sent from the UK.

[2] The evidence showed that the Ecstasy pills were sent to different residential addresses in Auckland and Wellington. Those addresses had been set up by members of the drug ring through an elaborate process by which a tenancy agreement was entered into, steps taken to ensure the address appeared lived in and rent paid. Arrangements were made for another member of the ring to attend the address when it was known a hamper was to be delivered and to stay there only so long as it was necessary to take delivery. Sometimes the person unpacked the basket and extracted the drugs. Sometimes another person did that. The gift hamper was usually left behind. The drugs were then handed over to yet another member of the gang who sold them to others for distribution at lower levels.

[3] Your involvement related to the arrangement of one of the addresses to which the drugs were to be delivered, that being an address in Nelson Street, Auckland. Instructions for the placement of the advertisement for this address in Trade & Exchange were found in your car, together with a template for a lease agreement. An advertisement in the terms contained in the instructions was placed and the address rented by a person using false identity details. The Crown case was that it was you who had placed the advertisement and it is clear from the jury’s verdict that the jury accepted that. The Crown accepts that your involvement is as a party to the importing of the drugs later delivered to that address and you are being sentenced on that fairly limited basis. There was clear evidence at the trial of your involvement in other aspects of the operation but that was not the subject of any charge and I disregard it except to the very limited extent that I am satisfied you had a good understanding of how the advertisement you were placing would be used and the nature of the operation.

[4] Drug offending is regarded seriously in this country. The use of drugs comes at an enormous cost in both money lost from the local economy, lives and families ruined and cash drained out of the economy for the use of overseas drug dealers. Most people who appear for sentencing for importing of drugs become involved for financial reasons. In sentencing on offences of this kind the primary objective is denunciation and deterrence of this kind of offending as provided for by the Sentencing Act 2002. I am required in sentencing to take into account certain principles which, relevantly in this case, include the gravity of the offending, the degree of culpability, the seriousness of the type of offending and the need for consistency with other sentencings.

[5] I am assisted in setting an appropriate sentence by the Court of Appeal’s decision in R v Wallace.[1] There the Court of Appeal recognised that where a drug ring includes those who both import and distribute, it is inevitable that there will be some regarded as prime movers, which you are not, and others who assist or play lesser roles and that is where you fall in. The Court of Appeal gave an indication as to starting points to be taken in relating to Class B drug offending by identifying

three broad categories for assessing the seriousness of the offending. Counsel have suggested to me that your offending falls either, from the Crown’s point of view, on the cusp between categories 2 and 3, or from Mr Ewen, into category 3. Category 3 represents commercial operations which are smaller but attract starting points of up to five years and I accept that, given the nature of your offending, that is the category into which you properly fit.

[6] It was clear from the evidence that the operation in which you were involved had been under way for quite some time by the time this offence occurred. It was well planned and sophisticated. The evidence that emerged of the kind of money being made and the amount of pills being supplied made it obvious that there was a high degree of commerciality. Although there is no evidence of exactly how many drugs were imported on any particular occasion, I can easily conclude from the sums of money that were being collected that the amount of drugs was very large. It is an operation that, for those at the higher levels, would have been regarded as falling within category 1 but, as I have said, I assess you as being into category 3. Taking

into account, however, that the role of an importer is always regarded more seriously than any other save a manufacture, the importer and the manufacturer being the people that actually bring the drugs into the market.

[7] I also have regard to the starting points taken in relation to the sentences of others involved in this operation and it will help to just canvass those briefly. The starting point for Mr Frewer, who occupied the pivotal position in the group, with the responsibility for collecting money, was 11-and-a-half years. A starting point of seven years was taken for Mr Voerman, described as a second-tier or wholesale distributor. Mr Whitehead, a lower level dealer who purchased from Mr Voerman attracted a starting point of six years. Mr Kavaleros, who was found guilty on importing and supply charges, I took a starting point there of six years when I sentenced him. For Mr Purchase, a lower level dealer also sitting below Mr Voerman, the starting point was four years nine months. Mr Rinaldi, also a lower level dealer, a starting point of four years.

[8] In a sense it is difficult to compare your situation with those other offenders because they were all convicted on offending carried out over a period of time and you are being sentenced on a single, isolated charge. However, I accept that you would fall below Mr Kavaleros in your offending and perhaps somewhere around Mr Rinaldi and Mr Purchase.

[9] I have also taken into account the case of R v Mitchell referred to by your lawyer, involving an offender whose offending was similar to yours and was convicted on two charges.2 The starting point in that case was five years.

[10] So taking into account all of these factors, I have reached the view that the appropriate starting point is three-and-a-half years.

[11] I then turn to consider your personal circumstances. I note first that you do not accept the jury’s verdict and provided limited information for your pre-sentence report only reluctantly. You are 38 years old, a New Zealander who has lived for some time in Australia. You have previous convictions in New Zealand, though

none for drug dealing or offending. I do not know whether you have convictions in Australia. I accept what you tell me, that you do not have convictions in Australia. Significantly from my point of view, the last conviction in New Zealand that was not driving related or minor was in 1997 so there have been a good few years have passed without any significant convictions for you. Your parish priest has provided a letter explaining some of the difficulties in your childhood and your conflicted family life. Notwithstanding those problems, it is clear that you are regarded as a person who is hard working, generous with your time and has contributed to your local community. I note, tragically, that you are estranged from your children at this time.

[12] These factors are ones that I will take into account, although it is generally said that the personal circumstances of drug offenders are of little moment. However, I am prepared to make a slight reduction of three months which would

_{bring you to a final sentence of three years and three months.}

P Courtney J

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[1] [1999] 3 NZLR 159.