R v Scott

[2019] NZHC 1805

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2017-070-004480

[2019] NZHC 1805

THE QUEEN

v

MATTHEW JOHN SCOTT MARIO HABULIN

BENJAMIN JOHN NORTHWAY DENI CAVALLO

Hearing:

29 July 2019 (Heard at Rotorua)

Appearances:

A Pollett for the Crown

S Lack and B Kirkpatrick for Mr Scott M McCarty for Mr Habulin

B Hesketh for Mr Northway H Roose for Mr Cavallo

Judgment:

29 July 2019

ORAL JUDGMENT OF POWELL J

[Indication pursuant to s 24(2)(a) Sentencing Act 2002]

R v SCOTT & Ors [2019] NZHC 1805 [29 July 2019]

[1]  This hearing was convened for the purpose of resolving various factual disputes raised by Mr Scott, Mr Northway and Mr Habulin with regard to the summary of facts. Prior to the hearing a number of matters had been identified as being at issue, but by the hearing today these had narrowed considerably and were eventually limited to disputes over the quantity of cocaine in the second importation that took place in July 2017 in relation to all three defendants, and a paragraph in the summary of facts that related to the possibility of further export of the cocaine that had been raised by Mr Habulin.

[2]The specific issues were as follows:

(a)whether for Mr Habulin and Mr Scott there had been a total of at least 76 kg of cocaine imported across the three importations as the Crown contends; or no more than 76 kg as the defence contended;

(b)whether Mr Northway was aware of 30 kg of cocaine following the second importation as the Crown contends; or approximately 10 kg as Mr Hesketh submits on behalf of Mr Northway; and

(c)the reference to the exporting of cocaine in the summary of facts.

[3]                 On these remaining issues in dispute, counsel sought an indication from me pursuant to s 24(2)(a) of the Sentencing Act 2002 as to whether any of these issues would have any significance at sentence, in the event that the issue was not resolved.

[4]                 In their respective submissions all counsel were in fact agreed that none of the disputed matters would be of any significance on the starting points for any of the defendants, given the nature and scale of the offending, having regard to current case law;1 the nature of each defendants’ involvement; and the need to have regard to the totality of each defendants’ offending in setting the starting point.2

1      Agwu v R [2015] NZCA 619; R v Liava’a CA175/98; R v Tshisha CA507/05; R v Cai CA357/05;

R v Curtis [1980] 1 NZLR 406; and R v Fatu [2006] 2 NZLR 72 (CA).

2      R v Ogaz [2007] NZCA 45.

[5]                 Having considered these submissions and for the same reasons as given by counsel, I formally give my indication that the matters in dispute will not have any significance to the sentences to be imposed for any of the defendants.

[6]                 The position is therefore as discussed with counsel, that the summary of facts will remain as presently drafted noting that none of the matters that have been considered will have any effect on the final sentence.

Powell J