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Rodney George Martel & Others v/s The Queen


Company & Directors' Information:- I-QUEEN PRIVATE LIMITED [Active] CIN = U74999KL2017PTC048635

    CA Nos. 453, 529, 579 of 2017

    Decided On, 10 August 2018

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE FRENCH
    By, THE HONOURABLE MR. JUSTICE VENNING & THE HONOURABLE MR. JUSTICE KATZ

    For the Appellants: P.J. Kaye, M.A. Corlett QC, B.A. Crowley, Advocates. For the Respondent: Z.R. Johnston, Advocate.



Judgment Text

REASONS OF THE COURT

(Given by Katz J)

[1] Rodney Martel, Rachel Vincent and Reghardt Roux were each convicted of a number of charges relating to their involvement in the importation of significant quantities of restricted drugs into New Zealand. They were sentenced to lengthy terms of imprisonment.[1]

[2] They each now appeal their sentence on the basis that it is manifestly excessive. In particular, they submit that the sentencing Judge, Palmer J, adopted starting points that were too high and failed to give them sufficient discounts for their guilty pleas and personal mitigating factors. Ms Vincent and Mr Roux also submit that the imposition of minimum periods of imprisonment (MPIs) on them was not warranted.

Background

[3] Between 9 June 2015 and 20 April 2016, Customs intercepted 37 packages containing the restricted drugs methamphetamine, cocaine, GBL or MDMA, sent to multiple addresses in Auckland, Christchurch and the wider Canterbury region. Mr Martel, Mr Roux and Ms Vincent were each convicted of being involved in the importation of some or all of the packages. In particular:

(a) Mr Martel was involved in the importation of all 37 packages over a 10 month period. The packages contained approximately 5.683 kilograms of methamphetamine, 7.7 litres of GBL, 31 grams of cocaine, 1,986 tablets of MDMA and 31 grams of MDMA powder. He pleaded guilty on the morning of trial to representative charges of importing methamphetamine, GBL, MDMA and cocaine. He was sentenced to an end sentence of 18 and a half years’ imprisonment, with an MPI of 50 per cent (nine years and three months).

(b) Ms Vincent was involved in the importation of approximately 3.63 kilograms of methamphetamine, 5.8 litres of GBL, 31 grams of cocaine, 1,986 tablets of MDMA and 31 grams of MDMA powder in 24 packages over a three month period.[2] She pleaded guilty on the first day of trial to representative charges of importing methamphetamine, GBL and MDMA, a charge of possession of methamphetamine for supply and a charge of importing cocaine. She received an end sentence of 14 years and eight months’ imprisonment, with an MPI of 50 per cent (seven years and four months).

(c) Mr Roux was involved in the importation of 1.324 kilograms of methamphetamine, 1.8 litres of GBL and 31 grams of cocaine in five packages across six weeks. He pleaded guilty on the morning of trial to a representative charge of importing methamphetamine and importing cocaine and GBL. He was sentenced to an end sentence of 11 years and six months’ imprisonment, with an MPI of 50 per cent (five years and nine months).

Extension of time for filing appeals

[4] Ms Vincent and Mr Roux’s appeals were filed out of time. The Crown does not, however, object to an extension of time for filing. The delay was short, explained, and caused no prejudice. The application for an extension of time is accordingly granted.

Were the starting points within range?

Palmer J’s approach

[5] Palmer J’s approach to setting the starting point was to take the charges of importing methamphetamine as the lead charges (subsuming the cocaine offending within that) and then make an uplift to reflect the class B charges.[3]

Mr Martel

[6] It was common ground that Mr Martel’s offending falls within band four of the guideline decision of R v Fatu.[4] Band four provides for a sentencing range of 12 years’ to life imprisonment.[5] The key issue is where in that band Mr Martel’s offending falls. In Fatu, this Court stated:

[31] ... Where an offender fits within any particular band will depend not just on the quantity and purity of the drugs involved but also the role played by the offender. Those who are the primary offenders can expect starting point sentences towards the higher end of the relevant band with the converse applying to those whose role is less significant.

[7] Mr Kaye submitted, on behalf of Mr Martel, that the starting point of 20 years’ imprisonment that Palmer J adopted was too high.[6] Palmer J fell into error, he submitted, by wrongly characterising Mr Martel’s role in the offending as being 'central' and 'pivotal'.[7] Mr Kaye submitted that there was little difference in culpability between Mr Martel and Ms Vincent, whom Palmer J described as a 'senior manager involved in organising the operation'.[8] Hence, Mr Kaye submitted, a starting point similar to that of Ms Vincent (17 years) should have been adopted.

[8] We do not accept that Palmer J erred in his characterisation of Mr Martel’s role, or in assessing his culpability as more serious than that of his co-offenders. In particular, we note:

(a) Mr Martel was the only offender involved in all 37 importations over a 10 month period (Ms Vincent, by way of comparison, was involved in 24 importations over a three month period).

(b) Mr Martel was responsible for importing more drugs, by a considerable margin, than his co-offenders. For example, he was involved in the importation of 5.683 kilograms of methamphetamine, significantly more than Ms Vincent’s 3.63 kilograms of methamphetamine. Mr Martel was also responsible for the importation of 31 grams of cocaine, 7.7 litres of GBL, 1,986 MDMA tablets, and 31 grams of MDMA powder.

(c) Mr Martel is the only common link between all of the importations in both Auckland and Christchurch. He was the only one of the appellants who was associated with a fourth offender (who has not appealed his sentence) who received the first six packages in Auckland. Mr Martel was also linked to all of the subsequent importations and offenders.

(d) When the police searched Mr Martel’s address they located a fraudulently obtained passport in the name of Lucien Smith. Eleven of the packages were addressed to Lucien or L Smith. Another 12 were addressed to other names ending in the surname Smith.

[9] It is clear that Mr Martel was involved to a significantly greater degree than his co-defendants. This was appropriately reflected in the starting point adopted by Palmer J.

[10] We have carefully considered the various cases referred to by the Crown and the appellants, and also some additional cases.[9] With reference to those cases, an 18 year starting point for the methamphetamine offending alone would have been justified, as would a two year uplift for the other drug offending. The global starting point of 20 years’ imprisonment adopted by Palmer J appropriately reflects the significant volume of drugs imported, the duration of the offending (involving 37 packages over a 10 month period), and Mr Martel’s senior role within the operation.

Ms Vincent

[11] Palmer J set a starting point of 15 years’ imprisonment for Ms Vincent’s methamphetamine offending, with an uplift of two years for the other drugs.[10]

[12] Mr Crowley submitted, on behalf of Ms Vincent, that Palmer J erred in accepting the Crown’s characterisation of her role as that of a 'senior manager'.[11] This resulted, he submitted, in an excessive starting point being adopted. The starting point for the methamphetamine offending, he argued, should have been 14 years’ imprisonment, rather than 15 years. Mr Crowley took no issue, however, with the two year uplift for the other offending.

[13] In our view, Palmer J did not err in his assessment of Ms Vincent’s role in the offending. She was involved in the importation of approximately 3.63 kilograms of methamphetamine, 5.8 litres of GBL, 31 grams of cocaine and 1,986 MDMA tablets in 24 packages over a three month period. The search warrant executed on her home in Christchurch uncovered methamphetamine, pills, scales, 14 cell phones, 40 SIM cards, a notebook containing track and trace numbers for 18 courier packages and the associated addresses (all of which were addresses matching intercepted packages of drugs).

[14] We have carefully considered the various cases referred to by counsel. Having regard to Ms Vincent’s senior role in the offending, the repeated nature of the offending over a period of several months, and the significant quantity of drugs imported, those cases do not support the contention that the starting point adopted by Palmer J was outside of the available range.

Mr Roux

[15] Mr Roux’s offending related to five packages in which 1.324 kilograms of methamphetamine, 1.8 litres of GBL and 31 grams of cocaine were imported. The offending occurred over a six-week period.

[16] Palmer J set a starting point of 13 years’ imprisonment for Mr Roux in respect of his methamphetamine offending, and uplifted this by six months to reflect his GBL offending. Palmer J made the following observations regarding Mr Roux’s role:

[20] ... I consider that Mr Roux’s role was not high in the operational chain but in organising addresses he was more than just a catcher. He played a lesser role [than Ms Vincent] but not a much lesser role and he was involved in importation of a large quantity of drugs.

[17] Mr Corlett QC submitted, on behalf of Mr Roux, that Palmer J mischaracterised his role in the offending as being more serious than it actually was. He submitted that Mr Roux’s role was actually similar to that of Mr Bell (another cooffender). The starting point adopted for Mr Bell’s sentence was nine years’ imprisonment. Duffy J, who sentenced Mr Bell, found that his role in the importation was that of a 'catcher,' at the bottom of the chain.[12] He provided a safe address for the receipt of packages containing the methamphetamine and GBL.[13] Mr Bell was sentenced for importing 323 grams of methamphetamine and 1.9 litres of GBL, as well as possession of 102 grams of cannabis.[14]

[18] Mr Corlett submitted that there was an insufficient basis for Palmer J’s conclusion that Mr Roux’s role was not much less than that of Ms Vincent, given that Ms Vincent’s involvement was in respect of a larger number of packages, over a longer time period and involving a significantly greater amount of methamphetamine. Her more senior role was evidenced, amongst other things, by the items seized from her home during a search, including her note book. Mr Corlett submitted that Mr Roux’s role should therefore be considered as being more analogous to Mr Bell’s than Ms Vincent’s.

[19] We do not consider that Mr Roux’s offending was at Mr Bell’s level. It was significantly more serious. He was involved in the importation of a much greater amount of methamphetamine, such that his offending was within band four, rather than band three of Fatu. Further, his role was clearly senior to that of Mr Bell, as evidenced by text message evidence. This included a message between him and a third party where Mr Roux asked that person for their address. That address was then provided to Ms Vincent and drugs were delivered to that address. Another text message, sent to two individuals, warned them to be on standby at their addresses as it was meant to be a busy week. Such evidence clearly supports the Judge’s conclusion that although Mr Roux was 'not high in the operational chain ... he was more than just a catcher'.[15]

[20] We have reviewed the cases counsel referred to, and some additional cases.[16] In our view the starting point set by Palmer J was well within range. Indeed, given that the offending fell within band 4 of Fatu, the starting point his Honour adopted is arguably towards the lower end of the available range.[17] Nor does a global starting point of 13 years and six months’ imprisonment for Mr Roux offend the parity principle. It appropriately reflects his culpability relative to both Ms Vincent and Mr Bell.

Were sufficient discounts given for the appellants’ personal mitigating factors?

Mr Martel

[21] Palmer J uplifted Mr Martel’s sentence by six months to take account of his 2016 convictions for possession for supply and manufacture of methamphetamine. His Honour noted the previous convictions, before turning to the letter of remorse, commenting that:

[23] ... I have received a letter from Mr Martel expressing his remorse which I read in the context of his previous extensive offending. Mr Chambers says he is dedicated to rehabilitation. I welcome that and encourage him in it. His efforts may count for parole. On the basis of the position as it currently stands I agree the six months’ uplift is justified.

[22] The pre-sentence report writer noted that Mr Martel had expressed remorse and had some insight into his offending. Ultimately, however, Palmer J did not give Mr Martel any discount for remorse.

[23] Mr Kaye submitted that Palmer J should have considered remorse as a standalone factor, rather than considering it in the context of Mr Martel’s previous offending. If Palmer J had approached the issue correctly, he submitted, he would have afforded Mr Martel a discount for remorse.

[24] There is no requirement that a discount be given simply because an offender expresses remorse at the time of sentencing. The court’s assessment of remorse requires a 'proper and robust evaluation of all the circumstances'.[18] The court will look for 'hard evidence of genuine regret and remorse'.[19] Limited weight will be attached to an expression of remorse that is 'belated'.[20] Little weight may be placed on even genuine expressions of remorse in circumstances of recidivist offending.[21]

[25] We do not accept Palmer J erred in considering Mr Martel’s claimed remorse against the backdrop of his previous convictions for drug related offending. Those convictions were imposed as recently as 2016. This history of recidivist drug offending was relevant to the Judge’s assessment of whether Mr Martel’s expressions of remorse were genuine, as was the fact that Mr Martel’s guilty plea was only entered on the first day of trial. It was open to Palmer J to conclude that a remorse discount was not warranted in such circumstances.

Ms Vincent

[26] Ms Vincent wrote a letter of remorse, and indicated her determination to continue the drug free status she had maintained on remand. Palmer J acknowledged the significance of her addiction, and wished her well with her rehabilitation.[22] He observed, however, that offending while serving a sentence requires deterrence, and on that basis uplifted her sentence by three months.[23] He did not consider a discount was justified given the level of offending.[24]

[27] Mr Crowley initially submitted that Ms Vincent’s 'previous convictions did not merit an uplift to her sentence of 3 months'. Further, he submitted, she should have received a discount for remorse and to reflect the fact that her offending was driven by her own addiction.

[28] At the appeal hearing, Mr Crowley accepted that he had misunderstood Palmer J’s sentencing comments. In particular, the Judge did not impose a threemonth uplift to reflect Ms Vincent’s previous convictions. Rather, the uplift reflected that Ms Vincent had been subject to a sentence of community work for possession of GBL at the time of the offending. That was a relevant sentencing factor, which justified a three month uplift.

[29] As for Ms Vincent’s addiction issue, in He v R, this Court acknowledged that drug addiction can be an underlying factor in drug-related offending, but concluded that the offender in that case:[25]

[19] ... was involved in a commercial drug dealing operation which would inevitably lead to others becoming addicted. That leaves little or no room to treat [the defendant’s] addiction as a mitigating factor.

[30] Given the commercial scale of Ms Vincent’s offending (within band 4 of Fatu), those observations are equally apt in this case. Ms Vincent was not involved in a small time operation to fuel her addiction, but a large commercial operation which operated over an extended period. Palmer J accordingly did not err in concluding that Ms Vincent’s personal circumstances (including in particular her addiction issues) did not warrant a sentencing discount.

[31] In terms of remorse, Mr Crowley referred to Ms Vincent’s letter of remorse, an affidavit sworn by her sister in which she deposed that Ms Vincent had expressed her remorse to her in a phone call and Ms Vincent’s pre-sentence report. Having read those documents, we accept that Ms Vincent appears to have at least some insight into her offending, and the harm that drugs cause to society. We are not satisfied, however, that it was an error on the part of Palmer J to conclude that, in all of the circumstances of the case, Ms Vincent’s remorse was not at a level that warranted a sentencing discount. This is particularly so given that the offending occurred when Ms Vincent was serving a sentence for previous drug related offending.

Guilty plea discount

[32] The Supreme Court in Hessell v R established that the maximum discount for a guilty plea is 25 per cent.[26] Further, before a discount is given after a trial has commenced, there must be 'some real justification'.[27]

[33] Each of the defendants pleaded guilty on the first day of trial. Mr Martel was given a 10 per cent guilty plea discount and Ms Vincent and Mr Roux were both given 15 per cent guilty plea discounts. Each of the appellants say that they should have been afforded a greater guilty plea discount. Mr Martel alleges disparate treatment with Ms Vincent. Ms Vincent and Mr Roux both submitted that they should have been given the maximum guilty plea discount of 25 per cent.

Ms Vincent

[34] At the outset of trial, 30 charges against Ms Vincent were withdrawn. As a consequence, the amount of methamphetamine Ms Vincent was charged with importing almost halved. Ms Vincent entered guilty pleas to the remaining charges against her.

[35] Although the Crown had supported a guilty plea discount of up to 20 per cent, Palmer J did not consider that a discount at that level could be justified for guilty pleas entered at such a late stage, and instead allowed a 15 per cent discount.[28]

[36] Ms Vincent submits that she ought to have been given a full 25 per cent discount for her guilty plea, on the basis that she pleaded guilty at the first reasonable opportunity. In the affidavit that she swore in support of this ground of appeal, Ms Vincent states that she wanted to enter guilty pleas much earlier but was unable to do so. This was due, she says, to the fact that she did not meet with her trial counsel (Lincoln Burns) to discuss the case against her and review the police disclosure, until one working day before trial.

[37] Ms Vincent was arrested in March 2016. Her trial commenced on 10 July 2017. Ms Vincent’s evidence is that she met Mr Burns at court at the time of her initial appearance and on a subsequent occasion when she unsuccessfully applied for bail. Subsequently she also met with Mr Burns on one occasion in late June 2016 (shortly after she had been transferred to Auckland Region Women’s Corrections Facility) when he gave her a statement made by one of her co-offenders and about 10 pages of text messages. On that occasion Ms Vincent was also able to get details of what the charges against her were, but did not see a summary of facts 'which would have explained what the case was about'.

[38] Ms Vincent says that she was aware that if she pleaded guilty she would get a reduced sentence. She therefore wanted to see the evidence and the summary of facts, so she could understand the case against her and enter pleas to those charges in respect of which she accepted she was guilty. Ms Vincent had difficulty, however, in making contact with Mr Burns. She says that she left him multiple voice messages and also sent him handwritten letters that she would ask the prison staff to send him. When Mr Burns answered his phone, Ms Vincent would ask him to bring her the police disclosure, or send it to her. She told him that she was anxious to discuss the charges with him.

[39] Ms Vincent has provided copies of prison phone logs to support her claim that she made numerous attempts to contact Mr Burns. They record that she made 31 phone calls to him from Christchurch Women’s Prison during the period 23 March 2016 to 27 June 2016. She made a further 50 phone calls to him from the Auckland Region Women’s Corrections Facility, during the period 18 August 2016 to 19 December 2017 (the last five of which post-dated the trial).

[40] Ms Vincent says that Mr Burns told her that he could not discuss the case with her over the phone, but would instead come and see her in person. However, following his visit to her in late June 2016, Ms Vincent did not see Mr Burns again until Friday 7 July 2017, over a year later. This was one working day before the trial, which was scheduled to commence the following Monday, 10 July 2017.

[41] Ms Vincent’s evidence is that when she met with Mr Burns on 7 July 2017 he explained the various charges to her and took her through the evidence relating to them. She then instructed Mr Burns that she accepted liability in respect of a number of the charges and wished to enter guilty pleas to them. Ms Vincent says that she would have been willing to plead guilty to the charges that she did plead guilty to much earlier but was unable to do so because she could not access her lawyer, despite her best attempts to do so. As a result, until the eve of trial, she had not seen the police summary of facts, had not seen or reviewed the police disclosure, and had not received legal advice regarding the charges. Once she understood the case against her she promptly indicated her willingness to plead guilty to a number of charges. All of the remaining charges were withdrawn.

[42] Mr Burns very belatedly sought to file an affidavit responding to Ms Vincent’s evidence. We declined the Crown’s application for an extension of time to file his affidavit, given the following procedural history:

(a) On 21 November 2017, Winkelmann J issued a Minute recording that Mr Crowley (counsel for Ms Vincent on appeal) had raised a concern that his inability to contact Mr Burns and uplift his file was prejudicing preparation of Ms Vincent’s appeal. Winkelmann J directed Mr Burns to co-operate with Mr Crowley forthwith and stated that:

[3] ... If Mr Crowley continues to experience difficulty in this regard, this is a matter he may raise with the Court. This Court is concerned if a failure on the part of trial counsel to provide information delays the progress of an appeal.

(b) On 13 February 2018, Brown J had to adjourn the original appeal hearing (for all three appellants) because:

[2] Regrettably there has been a delay in the provision by [Ms] Vincent’s former counsel [Mr Burns] of that counsel’s file to Mr Crowley. As a consequence Mr Crowley seeks an adjournment of [Ms] Vincent’s appeal.

(c) A new appeal hearing date of 27 June 2018 was scheduled.

(d) Ms Vincent’s affidavit, in which she was critical of Mr Burns, was filed on 19 April 2018. The Crown was directed to file evidence in response by 25 May 2018. It did not do so. The Crown advised (in its memorandum of 26 June 2018) that:

Despite repeated requests, Mr Burns did not provide a response by that date. Mr Burns was given a further opportunity to respond prior to the Crown filing submissions on 18 June 2018. He did not do so.

(e) Mr Burns eventually provided the Crown with an affidavit in response to Ms Vincent’s affidavit on 26 June 2018, the day before the appeal hearing. The Crown sought leave to file that affidavit out of time but acknowledged that, in that event, a further adjournment of the appeal may well be necessary.

(f) At the commencement of the hearing on 27 June 2018, Mr Crowley requested that, if Mr Burns’ affidavit was admitted, the appeal hearing be adjourned to enable him to take instructions and to prepare crossexamination of Mr Burns. (In our view that was a reasonable request).

[43] Given this context, we had no hesitation in concluding that it would not be in the interests of justice to further extend the time for filing Mr Burns’ affidavit. Mr Burns provided no adequate explanation for the lengthy delay in provision of his evidence. A second adjournment would have impacted not only Ms Vincent, but also Mr Roux and Mr Martel, whose appeals were being heard at the same time. We therefore declined the extension request and proceeded to hear the appeal.

[44] This aspect of the appeal therefore proceeds on the basis of Ms Vincent’s unchallenged evidence, which we accept. It is of note that the significant difficulties Mr Crowley and Ms Johnston reported in obtaining information from Mr Burns mirrors the difficulties described by Ms Vincent in her evidence.

[45] In light of Ms Vincent’s undisputed evidence, we accept that the first realistic opportunity she had to plead guilty was on Monday, 10 July 2017. In such circumstances (which we note are highly unusual), a full 25 per cent guilty plea discount was warranted. The Judge accordingly erred in only affording Ms Vincent a 15 per cent discount. We make no criticism of Palmer J, however. He would not have been aware of much of the background we have outlined. Ms Vincent’s difficulties with Mr Burns only came to light on appeal, after she had engaged new counsel to act for her.

Mr Martel

[46] Mr Martel was granted a discount of 10 per cent for pleading guilty on the first day of trial. Mr Kaye submitted that he should have been given the same discount as Ms Vincent, because the time and money saved by Mr Martel pleading guilty was the same as that saved by Ms Vincent’s guilty pleas.

[47] Mr Martel’s position is not, however, analogous to that of Ms Vincent. Ms Vincent’s guilty plea was made at the first reasonable opportunity, for the reasons we have outlined above. Mr Martel, however, could have pleaded guilty much sooner. There was no significant change to the charges against him from the commencement of the proceedings to the date of his guilty pleas. Although some charges were withdrawn, this simply reflected that the 37 separate charges against him were replaced by representative charges. The prosecution case appears to have been a strong one. There is no suggestion that Mr Martel experienced the same difficulties with access to counsel that Ms Vincent did.

[48] We are satisfied that Palmer J did not err by refusing to grant Mr Martel the same discount as Ms Vincent. A discount of 10 per cent for Mr Martel was appropriate.

Mr Roux

[49] Mr Roux, who also pleaded guilty on the first day of trial, was granted a 15 per cent discount. The Crown had accepted that a discount of 20 per cent could be justified, but Palmer J’s view was that a discount of 15 per cent was more appropriate for such a late plea.[29]

[50] Mr Roux seems to have initially appeared on the charges in July or August 2016, and the Court record indicates that by September 2016 at the latest, Mr Hall QC was acting for him. Mr Corlett subsequently accepted assignment as legal aid counsel in March 2017.

[51] Mr Corlett advised that he travelled to Christchurch to meet with Mr Roux for the first time in early May 2017. He was unable to meet with him prior to that due to trial commitments. At the May meeting Mr Roux is said to have squarely acknowledged responsibility for some of the offending, but denied responsibility for other charges. Following the meeting Mr Corlett provided Mr Roux with formal written advice. Mr Roux then gave Mr Corlett instructions regarding resolution of the charges. Mr Corlett wrote to the Crown proposing a resolution on Sunday 9 July (the day before the trial commenced). The Crown accepted the proposed resolution the following morning and Mr Roux then entered guilty pleas.

[52] We are not persuaded that Palmer J erred in affording Mr Roux a 15 per cent guilty plea discount in such circumstances. Although a slightly higher discount could have been justified, 15 per cent was within the appropriate range. It was open to Mr Roux, following his meeting with Mr Corlett in early May, to plead guilty to those charges in respect of which he accepted responsibility. He elected, instead, to delay entering pleas until a resolution of all of the charges could be negotiated. There is nothing improper, or unusual, in such a course. As a result, however, Mr Roux cannot claim to have entered his guilty pleas at the earliest available opportunity.

Were the MPIs appropriate?

[53] Both Ms Vincent and Mr Roux seek to have their MPIs removed or reduced to 40 per cent.

Ms Vincent

[54] In relation to Ms Vincent, Mr Crowley submitted that an MPI is not required for the purposes set out in s 86 of the Sentencing Act 2002 (accountability, denunciation, deterrence and protection of the community).[30]

[55] In serious drug offending, the criteria for imposing an MPI will almost invariably be made out.[31] The Court of Appeal in R v Zhou stated:[32]

[19] ... the pervasive and pernicious influence of methamphetamine in New Zealand society is such that the usual MPI of one-third applicable under the Parole Act 2002 will most often be insufficient to meet the statutory purposes identified in s 86(2) in cases of large scale offending.

[56] Deterrence and denunciation carry significant weight in this case, given Ms Vincent’s relatively senior role in the offending, and the overall scale and seriousness of it. In our view Palmer J did not err by setting a 50 per cent MPI.

Mr Roux

[57] As for Mr Roux, Mr Corlett submitted that his role was at the lower end of the scale, such that the purposes set out in s 86 do not require the imposition of an MPI.

[58] We have previously considered, and rejected, Mr Corlett’s submission that Mr Roux’s role was broadly analogous to that of Mr Bell. Mr Roux’s offending was more serious than that. He was convicted for his involvement in the importation of five packages in

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which 1.324 kilograms of methamphetamine, 1.8 litres of GBL and 31 grams of cocaine were imported. The offending occurred over a six week period. Mr Roux played a role in organising and overseeing others, as evidenced by the text messages we have referred to at [19] above. Palmer J did not err in imposing a 50 per cent MPI in such circumstances. Result [59] The applications for extensions of time for the filing of Ms Vincent and Mr Roux’s appeals are granted. [60] The application for an extension of time to file Mr Burns’ affidavit is declined. [61] Mr Martel and Mr Roux’s appeals are dismissed. [62] Ms Vincent’s appeal is allowed in part. Her end sentence of 14 years and eight months’ imprisonment is quashed and replaced with a sentence of 12 years and 11 months’ imprisonment, with a minimum period of imprisonment of six years and five months. This reflects our view that, in the unusual circumstances of her case, a guilty plea discount of 25 per cent is warranted, rather than the 15 per cent afforded by the Judge. ---------------------------------------------------------------------------- [1] R v Martel [2017] NZHC 1878 [sentencing notes]. [2] The sentencing notes, above n 1, at [5(b)] do not mention the 31 grams of MDMA powder but we take this to be merely a typographical error. [3] Sentencing notes, above n 1, at [14]. [4] R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA). [5] At [36(d)]. [6] The starting point was then uplifted by six months to take into account Mr Martel’s previous convictions, but no issue is taken with that uplift on appeal. [7] At [18]. [8] At [5(b)]. [9] R v Atta [2016] NZHC 2478; Hoang v R [2016] NZCA 335; O’Connor v R [2016] NZCA 414; Nguyen v R [2016] NZCA 18; R v Wan [2017] NZHC 2376; R v Cheung [2017] NZHC 914; R v Hung [2017] NZHC 467; R v Kupec [2017] NZDC 22632; Gao v R [2018] NZCA 69; Man v R [2017] NZCA 525; Lam v R [2012] NZCA 280; R v Wong [2009] NZCA 332; Chen v R [2010] NZCA 552 at [17]; R v Pai [2015] NZHC 2345; R v Ip [2016] NZHC 1825; and Choi v R [2011] NZCA 237, (2011) 25 CRNZ 262. [10] At [19]. [11] At [5(b)]. [12] R v Bell [2017] NZHC 1818 at [4]. [13] At [4]. [14] At [3]. [15] At [20]. [16] Above n 9. [17] We note, for example, that R v Ip, above n 9, and Choi v R, above n 9, both involved smaller amounts of methamphetamine and less senior roles, and starting points of 13 years and 12 years and six months respectively, were imposed. [18] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64]. [19] R v Brewster [1998] 1 Cr App R 220 (CA); adopted by the full Court in Senior v Police (2000) 18 CRNZ 340 (HC) at [21]. [20] R v T (CA251/02) (2002) 20 CRNZ 51 (CA) at [14]. [21] R v Ngamo [2009] NZCA 512 at [9]. [22] At [24]. [23] At [24]. [24] At [24]. [25] He v R [2017] NZCA 77. [26] At [75]. [27] Hessell v R, above n 18, at [76]. [28] Sentencing notes, above n 1, at [24]. [29] At [25]. [30] Sentencing Act 2002, s 86(2). [31] See R v Aram [2007] NZCA 328 at [78]. [32] R v Zhou [2009] NZCA 365.
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05-02-2020 Zeki Ray Kadir Versus The Queen High Court of Australia
06-09-2019 Papa Manu Versus The Queen Court of Appeal of New Zealand
15-08-2019 Shane Arron Hunter Versus The Queen Court of Appeal of New Zealand
07-08-2019 Wen Xu Versus The Queen Court of Appeal of New Zealand
31-07-2019 Her Majesty The Queen Versus R.V. Supreme Court of Canada
29-07-2019 Shayal Upashna Sami Versus The Queen Court of Appeal of New Zealand
11-07-2019 Keith Bartram Versus The Queen Court of Appeal of New Zealand
10-07-2019 Gang Chen & Another Versus The Queen Court of Appeal of New Zealand
09-07-2019 Zen Pulemoana Versus The Queen Court of Appeal of New Zealand
08-07-2019 Kovinantie Fukofuka Versus The Queen Court of Appeal of New Zealand
05-07-2019 Majesty The Queen Versus Albert Penunsi Supreme Court of Canada
01-07-2019 Danial John Keeley Versus The Queen Court of Appeal of New Zealand
28-06-2019 Patrick John Goldfinch Versus Her Majesty The Queen Supreme Court of Canada
13-06-2019 QI XIE Versus The Queen Court of Appeal of New Zealand
11-06-2019 Kevin Martin Matthews Versus The Queen Court of Appeal of New Zealand
04-06-2019 Ngakiri Williams Versus The Queen Court of Appeal of New Zealand
31-05-2019 Tom Le Versus Her Majesty The Queen Supreme Court of Canada
24-05-2019 Bradley David Barton Versus Her Majesty The Queen Supreme Court of Canada
10-05-2019 Ram Parshotam Mittal & Others Versus Hotel Queen Road Pvt. Ltd. & Others Supreme Court of India
07-05-2019 Jason Phillip Dehaar Versus The Queen Court of Appeal of New Zealand
18-04-2019 Sean Patrick Mills Versus Her Majesty The Queen Supreme Court of Canada
12-04-2019 Rajeshwar Singh Versus The Queen Court of Appeal of New Zealand
10-04-2019 The Queen Versus Dylan Cossey Court of Appeal of New Zealand
09-04-2019 Tuatahi Te Parau Gotz Versus The Queen Court of Appeal of New Zealand
28-03-2019 Corey Lee James Myers Versus Her Majesty The Queen Supreme Court of Canada
22-03-2019 Shaun Thomas Bishop Butler Versus The Queen Court of Appeal of New Zealand
12-03-2019 Christian Lee Hone Hobson Versus The Queen Court of Appeal of New Zealand
28-02-2019 Stead Nuku Versus The Queen Court of Appeal of New Zealand
25-02-2019 Kanwal Kant Chagti Versus Hotel Queen Road Pvt. Ltd. High Court of Delhi
25-02-2019 Kanwal Kant Chagti Versus Hotel Queen Road Pvt. Ltd. High Court of Delhi
25-02-2019 Kanwal Kant Chagti Versus Hotel Queen Road Pvt. Ltd. High Court of Delhi
08-11-2018 Virgil Balajadia & Another Versus The Queen Court of Appeal of New Zealand
31-10-2018 Jesse-James Winter & Another Versus The Queen Court of Appeal of New Zealand
18-10-2018 John Garry Davidoff Versus The Queen Court of Appeal of New Zealand
11-10-2018 Iraia Aranga Ngamotu Burton Versus The Queen Court of Appeal of New Zealand
10-10-2018 Eric Walter Smith Versus The Queen Court of Appeal of New Zealand
05-10-2018 William Arthur Parkin Versus The Queen Court of Appeal of New Zealand
18-09-2018 Kelly William Stewart Versus The Queen Court of Appeal of New Zealand
11-09-2018 NZME Publishing Limited & Others Versus The Queen & Another Court of Appeal of New Zealand
10-09-2018 Shannon Taimania Heemi Versus The Queen Court of Appeal of New Zealand
06-09-2018 Heather Gleason-Beard Versus The Queen Court of Appeal of New Zealand
23-08-2018 Laurence Tyson Te Ruki & Another Versus The Queen Court of Appeal of New Zealand
20-07-2018 Her Majesty The Queen & Others Versus Derek Brassington & Others Supreme Court of Canada
13-07-2018 Her Majesty The Queen in Right of British Columbia Versus Philip Morris International, Inc. & Others Supreme Court of Canada
09-07-2018 Michael Robert Pollard Versus The Queen Court of Appeal of New Zealand
06-07-2018 William Hines Versus The Queen Court of Appeal of New Zealand
02-07-2018 Benjamin Shepherd Versus The Queen Court of Appeal of New Zealand
29-06-2018 Richard Alan Suter Versus Her Majesty The Queen Supreme Court of Canada
22-06-2018 David Shaun Galloway Versus The Queen Court of Appeal of New Zealand
20-06-2018 Paul Ian Lane Versus The Queen High Court of Australia
13-06-2018 Jeffrey G. Ewert Versus Her Majesty The Queen in Right of Canada (the Commissioner of the Correctional Service of Canada, the Warden of Kent Institution & the Warden of Mission Institution) & Others Supreme Court of Canada
29-05-2018 Leon Delshannon Turner & Others Versus The Queen Court of Appeal of New Zealand
29-05-2018 Leon Delshannon Turner & Others Versus The Queen Court of Appeal of New Zealand
25-05-2018 Wing Wha Wong Versus Her Majesty The Queen & Others Supreme Court of Canada
18-05-2018 Timothy Brunsell Versus The Queen Court of Appeal of New Zealand
18-05-2018 Timothy Brunsell Versus The Queen Court of Appeal of New Zealand
10-05-2018 The Queen Versus Merkins Bah Agu Court of Appeal of New Zealand
10-05-2018 The Queen Versus Merkins Bah Agu Court of Appeal of New Zealand
09-05-2018 John Collins Versus The Queen High Court of Australia
02-05-2018 Joshua Terehunga Edwards Versus The Queen Court of Appeal of New Zealand
02-05-2018 Joshua Terehunga Edwards Versus The Queen Court of Appeal of New Zealand
01-05-2018 Manoj Vohra & Another Versus The Queen Court of Appeal of New Zealand
01-05-2018 Manoj Vohra & Another Versus The Queen Court of Appeal of New Zealand
27-04-2018 Lealofi Setu Versus The Queen Court of Appeal of New Zealand
27-04-2018 Lealofi Setu Versus The Queen Court of Appeal of New Zealand
19-04-2018 Her Majesty The Queen Versus Gerard Comeau & Others Supreme Court of Canada
13-04-2018 Marie-Eve Magoon & Another Versus Her Majesty The Queen Supreme Court of Canada
26-03-2018 Isaac Cruz Eru Broughton Versus The Queen Court of Appeal of New Zealand
23-03-2018 Zhuoling Gao & Others Versus The Queen Court of Appeal of New Zealand
23-03-2018 Bruce Carson Versus Her Majesty The Queen Supreme Court of Canada
21-03-2018 Ronald Michael Craig Versus The Queen High Court of Australia
21-03-2018 Hone Rankin Daniels Versus The Queen Court of Appeal of New Zealand
15-03-2018 Matthew John Young Versus The Queen Court of Appeal of New Zealand
09-02-2018 Canadian Broadcasting Corporation Versus Her Majesty The Queen & Others Supreme Court of Canada
02-02-2018 Williams Lake Indian Band Versus Her Majesty The Queen in Right of Canada as Represented by the Minister of Aboriginal Affairs & Northern Development Canada & Others Supreme Court of Canada
21-12-2017 Donald Joseph Boutilier Versus Her Majesty The Queen & Others Supreme Court of Canada
14-12-2017 Brian Frank Taylor & Others Versus The Queen Court of Appeal of New Zealand