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Judge orders discharge for defendant found guilty of serious drug offence

19 May 2023

| Author: Hannah Hellyer

Sentencing Act 2002, ss 106 and 107 – discharge without conviction – Misuse of Drugs Act 1975, s 6(2A) – conspiracy to import methamphetamine – gravity of offending low – consequences of conviction moderately- to-highly-serious – application granted 

R v Walsh [2023] NZHC 680 (Palmer J)

A jury unanimously found Ryan Walsh guilty of conspiring to import cocaine. No conviction was entered, with the consent of the Crown. Walsh’s co-conspirators, Tama Waitai, Tangaroa Demant, and Maurice Swinton, all pleaded guilty to conspiring to import cocaine.

Waitai and Demant agreed with a Mexican-based organised criminal group to import a large quantity (around 200 kilograms) of cocaine into New Zealand. Waitai and Demant had a man (Maurice Swinton) working on the Mt Maunganui side of the port to assist with the removal of the cocaine once it docked at the port of Tauranga. However, they needed a man working on the Tauranga side, in case the ship berthed there.

There were three intercepted phone conversations between Demant, Waitai and Walsh but Walsh was not involved in all of these conversations. From what was said, it was unclear exactly what Walsh knew of their plans. However, Walsh agreed to help Waitai and Demant to find someone to help them with whatever they were planning.

The plan never proceeded. No drugs were imported. There was no evidence that Walsh found anyone to assist. However, there was evidence that Walsh asked for his partner’s help to get her brother, Waitai, off his back which she did and confirmed this in evidence.

The Crown opposed Walsh’s application to be discharged without conviction.

On the gravity of Walsh’s offending, Palmer J noted the offence itself was serious. It was a large-scale operation and Walsh’s role was crucial. The jury found Walsh had intended to help and knew the container was intended to contain a controlled drug.

However, there were significant mitigating aspects of Walsh’s offending and culpability. At the time of his involvement, the conspiracy was in its early planning stages, the plan never came to fruition, there was no evidence Walsh knew the quantity proposed to be imported or that there was any Mexican connection or that it was cocaine, and Walsh’s intended assistance was minimal.

Further, Walsh was simultaneously intimidated by, and trying to impress, his partner’s brother. He appeared to have tried to negotiate his way through the conversations, and his behaviour did not appear to have been motivated by malign intent or self-interest. And Walsh extracted himself from the conspiracy.

In these circumstances, Palmer J assessed the gravity of Walsh’s offending to be low, although noting the level of his stupidity was extremely high.

On the consequences of conviction, Walsh provided evidence about the significant long-term effect on his career, his ability to earn income to support his young family and to travel overseas for work and further training.

Palmer J found these consequences of conviction as being moderately to highly serious. He also found they would impact significantly on his whānau, including his young child and younger relatives, and would significantly set back his admirable efforts to put his difficult childhood behind him and become a respected commercial diver and father.

Having assessed the gravity of Walsh’s offending as low, and the consequences of conviction for him and his family as moderately to highly serious, Palmer J considered the consequences of conviction were out of all proportion to the gravity of his offending.

In determining whether to exercise his discretion, Palmer J noted his regard to the case law, and that Walsh’s risk of reoffending was low. The judge considered that Walsh should be able to continue h his career as a commercial marine diver and provide for his family in a way which was not done for him when growing up.

Held: Application to be discharged without conviction on the charge of conspiracy to import cocaine granted.

Hannah Hellyer is an Auckland criminal defence barrister and a member of the ADLS Criminal Law Committee and Parole Law Committee


R v Walsh [2023] NZHC 680 (1)

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