Babich v R [2018] NZHC 2324 (5 September 2018)

Last Updated: 16 October 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2018-404-206 [2018] NZHC 2324

BETWEEN	JOSEPH PETER BABICH Appellant
AND	THE QUEEN Respondent

Hearing:	3 September 2018
Counsel:	W M Ryan for Appellant H G Max for Respondent
Judgment:	5 September 2018

_{JUDGMENT OF SIMON FRANCE J}

[1] Mr Babich appeals the refusal of the District Court to discharge him on five charges of importing a class A drug, and one of importing a class C drug.¹ If unsuccessful on this appeal, Mr Babich appeals the sentence of 12 months’ home detention.² At first blush, the mere recitation of the charges is enough to cast real doubt on the availability of a discharge without conviction but it is important to unpack the circumstances.

[2] On three occasions in February 2017 parcels containing drugs were intercepted. The amounts were 3.9 grams of cocaine, 1.4 grams of methamphetamine and 4.2 grams of cocaine. Inquiries led to Mr Babich who when confronted admitted his offending. Mr Babich explained he had ordered them through the Dark Web, and gave police access to his computer, accounts and passwords. There were three further

¹ R v Babich [2018] NZDC 10726.

² _{R v Babich [2018] NZDC 15923.}

BABICH v R [2018] NZHC 2324 [5 September 2018]

importations between March and May disclosed, meaning six charges in all. Those three charges involved 3.5 grams of cocaine (x2) and 3.5 grams of the class C drug ketamine.

[3] Mr Babich is 51 years of age. Other than two very minor driving offences he has no previous convictions. A once successful businessman, he fell on difficult times. Around the time of the offending he was depressed. Indeed, this is a condition from which he has long suffered, and at various times been medicated for. A report from Mr Babich’s psychiatrist details his long struggles with the illness, and the limited success of treatment interventions. He has a diagnosis of bipolar affective disorder.

[4] The imported drugs were Mr Babich’s attempt at self-medication through other drugs. He was aware there is research indicating ketamine has promise as regards being a treatment for depression. Cocaine was Mr Babich’s own idea. The offending period is short, the ordering component of it even shorter.

[5] Since his arrest Mr Babich has made significant efforts at addressing his issues. In addition to resuming treatment with his psychiatrist, Mr Babich has been attending Community Alcohol and Drug Services. Further, he has recognised a need for greater community involvement as a method of preventing him from focusing inward and has been involved in various community activities. It is clear he has got himself into a very different and positive place.

[6] Mr Babich has been offered employment in the wine industry. An existing marketing position has become vacant. It involves travel overseas to the wine company’s main markets. Convictions will end that opportunity. Mr Babich’s other work experience is in property development. He deposes, without challenge, that banks have advised him these convictions will prevent him obtaining funding.

[7] The District Court assessed the offending as of moderate seriousness. It was recognised Mr Babich had done all that could be expected of him since arrest but the nature of the charges – class A importing – was an impediment to any lower assessment. In that regard, I consider the observations of Thomas J in R v Taylor to

provide a useful reminder – s 106 concerns the gravity of the particular offence, not the offence type.³

[8] Six importations totalling 16 grams is a significant roadblock. However,

Mr Ryan places reliance on a comment in R v Fatu that where small quantities have been imported for personal consumption it is open to the Court to treat band one, the lowest band, as not applicable.⁴ This is such a case, only Mr Babich did it six times. In my view, that elevates the seriousness of the offending but does not change its characterisation as importation of small amounts for personal use.

[9] The acceptance here of the purposes underlying the importation is what sets the case apart. It is a mad-headed attempt of self-medication to address a long standing serious illness where conventional medicine has not helped. Surrounding that point are two others – there is no suggestion Mr Babich has previously used, let alone imported, such drugs; and he immediately accepted responsibility and the wrongfulness of what he did. Mr Babich does not seek the defend what he did nor contend for the right to use illegal medications. Further, in saying that Mr Babich

co-operated, it is important not to gloss over the nature of that assistance. Mr Babich explained to Police how he did it, and passed over full access to his computers and Dark Web accounts to enable scrutiny of what he had done.

[10] The acknowledgment in Fatu that importation of small amounts for personal use can be treated differently reflects the important point that there is in such activity no risk of widening access or exposing others to the drug. Overall, I consider the offending can be assessed as moderate, but driven by recognition of the purposes of the importing, and Mr Babich’s efforts to immediately acknowledge and address the offending, the gravity of the offending shades towards low. I differ from the assessment in the Court below in two ways. I do not consider it to be particularly sophisticated offending – ordering on the internet to be delivered by regular post. Also, I focus less on the overall total amount of drug imported and more on the purpose behind the importation. That seems the key to understanding this particular case.

³ R v Taylor [2018] NZHC 688 at [46].

⁴ R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 at [36].

[11] Conviction will prevent Mr Babich from bedding home the gains he has made by denying him access to a good job opportunity that has arisen. At aged 51 there is an opportunity to solidify his personal transition. He is a first offender, caught up in a brief period of madness that was going to affect only him. I accept Mr Ryan’s submission there are considerable parallels to Taylor in which the appellant was a

50 year old woman, peripherally involved in the supply of class A drugs, who similarly had turned her life around, and had looming employment prospects that would be lost. The changes she made are probably more significant than those of Mr Babich, but one can always see points of difference.

[12] Overall, I see this case as one where the combination of numerous factors leads to the uncommon assessment that the consequences of conviction will be out of all proportion to the seriousness of class A drug offending. I am influenced by the low quantity of each importation, the short duration of what is a lapse from law abiding conduct, the motivations behind the offending, the long standing and independently established battle with depression that no doubt influenced his decision-making, the ready acceptance of responsibility, the genuine and determined efforts to address the causes, the apparent success of those efforts, and the significant direct consequences that will occur if convictions result.

[13] The appeal is allowed and the convictions quashed. I direct that Mr Babich be discharged without conviction on each charge. Mr Babich has served five weeks home detention which is the equivalent for sentencing purposes of two and a half months’ imprisonment. No other penalty is required.

Simon France J