de Vries v Bartercard Exchange Ltd

[2016] NZHC 2874

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2015-085-1882 [2016] NZHC 2874

THE QUEEN

v

ADAM NELSON

Appearances:

S W P Woods for Crown

M Ryan for Nelson

Sentenced:

30 November 2016

SENTENCE OF CLARK J

[1]      Mr Nelson,  you  appear  for sentence today having pleaded  guilty to  two charges of importing a Class A controlled drug, namely methamphetamine.   The maximum penalty is life imprisonment.1

[2]      Before I sentence you I will go through the background to your offending, which you already know of course.  Then I need to mention the factors that I take into account in deciding an appropriate sentence.  It is important that you, and the public, know the reasons for the sentence.

The facts

[3]      Your  offending  was  discovered  as  part  of  an  operation  focused  on  the activities of a serving prisoner.  An 18 month investigation code-named “Gandolf” targeted the activities of an organised criminal group involved in the importation and distribution  of methamphetamine throughout  New Zealand.   The activities  were

masterminded  by Mohamed Soliman Hussain Atta who  was  serving  a full-time

1      Misuse of Drugs Act 1975, ss 6(1)(a) and (2)(a).

custodial sentence.   Mr Atta used contacts in Thailand and arranged for the importation of methamphetamine for buyers such as yourself in 100 or 200 gram quantities to avoid arousing suspicion.

[4]      In early September 2014 the Police intercepted a number of communications between you and Mr Atta.   You arranged for a package containing 200 grams of methamphetamine to be imported.   The package was intercepted by Customs.   It contained a handbag in which was concealed a package containing approximately

220 grams of methamphetamine. The street value was around NZ$220,000.

[5]      You then arranged with Mr Atta a further importation of 200 grams.   That was delivered on 7 October 2014.  The street value was up to $200,000.  You paid Mr Atta’s fee of $10,000 on 13 October 2014 and subsequently requested a further

300 grams to be sent to you.  You were arrested before that third importation was completed.

Starting point

[6]      In sentencing you I will first decide on a starting point.  The starting point is the sentence that would be appropriate before taking into account factors relevant to the actual offending and to you personally.

[7]      The  starting  point  for  sentences  for  methamphetamine  importation  is governed by a judgment of the New Zealand Court of Appeal.2   The Court of Appeal established bands of offending for those involved in the importation, manufacture and supply of methamphetamine.  The most serious band is band four covering very large commercial quantities — 500 grams or more.  Your offending fits into band three which covers large commercial quantities of between 250 to 500 grams.  Band

three attracts nine to 13 years imprisonment.  I must decide where, in the band, three range your offending sits.

[8]      Your  offending  has  two  particular  aggravating  features.    By  definition, almost, importation of drugs involves planning and premeditation.   But the steps

2      R v Fatu [2006] 2 NZLR 72.

taken  by  you  in  making  contact  with  Mr Atta,  making  payments  into  the  bank accounts of the associates in Thailand, providing a delivery address, tracking the delivery and collecting the package show a high degree of planning and premeditation.  And you went through that process twice.  Your third arrangement was thwarted by your arrest in October 2014.

[9]      The particular role you had in the importation is also relevant in setting the starting point.   Primary offenders can expect starting point sentences toward the higher end of the band.   You were a buyer of methamphetamine.   Other buyers sentenced in the Gandolf Operation were said by Simon France J to be properly described as importers.   An importer is more blameworthy than a supplier.   You generated the transaction, you provided the funds and the addresses.  Although you did not mastermind the overall operation you instigated successive importations. The total quantity imported was 420 grams.  That takes you beyond the midrange of band three.

[10]     The Crown submits that a starting point of 12 years imprisonment is justified. Your counsel submits a starting point of 10 years imprisonment is appropriate.

[11]     I have considered a number of cases to ensure that the starting point I set for you is consistent with other cases.3   The Crown’s written submissions refer to those cases in its table of sentences passed on other defendants arising out of Operation Gandolf.   A starting point  of ten  years and  six  months  is  appropriate for  your offending particularly when I consider the ten year starting point in R v Blewden which involved 300 grams.   Although that involved three importations, and you

successfully imported only twice, you imported a greater quantity.

[12]     The Crown submits that there should be an uplift from this starting point for your previous convictions but I do not place too much weight on these.  They are reasonably historical and mainly property offences.  Your last offence was a burglary committed  in  November  2009  for  which  you  were  imprisoned.    What  is  more

significant is that at the time of this offending you were on parole having just served

3      R v Birkinshaw [2016] NZHC 2257; R v Blewden [2015] NZHC 3159 and R v Atta [2016] NZHC 2478.

a custodial sentence for possession and supply of methamphetamine.   That fact seriously aggravates your offending and an uplift by eight months reflects the deterrent response necessary when, having served a sentence of imprisonment for supply of methamphetamine, you returned to commit an even more serious methamphetamine offence.

[13]     Your counsel submits a discount of 25 per cent to reflect your guilty pleas is warranted and the Crown accepts that.  That reduces the starting point by 33 months bringing it to eight years and four months.

[14]     I turn now to consider whether there are personal mitigating factors.  You are

32 years old.  You have offended reasonably consistently since your first appearance in the Youth Court in 1999 but, as I have noted, the bulk of the offending has been against property.   Until your imprisonment in 2010 you had only committed one offence serious enough to attract a community based sentence, that being in 2003.

[15]     You say you had little choice in this offending.  You say you were essentially threatened by gang members because you had taken money for cigarettes but failed to obtain the cigarettes.  You owed them money and your explanation is that they knew where your family lived and were in a position to harm them.   In order to protect your family you had no choice, you say, but to cooperate with their demands and this led to the importation.

[16]     I have closely read the letter that has been sent from the prison inmate which, your counsel submits, gives some support to your claim. As Mr Ryan notes the letter has not been the subject of testing by way of cross-examination but even putting that to one side I do not accept that the narrative should be taken into account.  The letter says a demand of $10,000 was made of you.  Even accepting the truth of that it does not explain why you imported two quantities of methamphetamine to the value of some $400,000 and then attempted to import more.  I put your explanation to one side because it does not lessen your culpability.

[17]     Your counsel submits you are entitled to a further discount of five per cent for remorse.  But I note that the Department of Corrections pre-sentence report observes

you showed no insight nor any remorse for the impact that your offending had on the victims of your offending.  Rather, you were remorseful for the impact upon your family as you had spent a significant period away from your children while in prison and you, quite rightly, observed it was unfair on your partner to be left to cope by herself.  That regret for the inevitable and foreseeable consequences of your actions on your family cannot warrant a reduced sentence.

[18]    Finally, I must consider whether I should impose a minimum period of imprisonment.   Under the Sentencing Act 2002 the Court can impose a minimum term where the sentence might otherwise fail to satisfy all or any of the sentencing purposes of accountability, denunciation, deterrence and community protection.

[19]     A minimum term is frequently imposed for methamphetamine drug dealing offences where the sentence is nine years imprisonment or longer.   A minimum term is seldom imposed where the sentence is less than nine years.   However, the seriousness of the offending may justify a minimum non-parole period even where a sentence of less than nine years is imposed.4

[20]     The Crown points to your very recent previous convictions for drug dealing and submits that when viewed against that backdrop deterrence and denunciation are particularly important.

[21]     I accept there is a need to protect society from the risk that you may continue to introduce class A drugs into the community.  On the basis of the sentence of eight years and four months which I have reached you would be eligible for parole after serving only two years and nine months.  That would be manifestly inadequate given the quantities involved over two importations organised while you were on parole for similar  offending.    I  am  satisfied  your  offending  requires  a  minimum  term  of

imprisonment of four years and two months.

4      R v Wang [2009] NZCA 118.

Sentence

[22]     Mr Nelson please stand.   On the two charges to which you have pleaded guilty I sentence you to eight years and four months imprisonment. You are required to serve four years and two months before being eligible for parole.

[23]     Please stand down.

Karen Clark J