AThe appeal against sentence is allowed.
BThe sentence of eight years and eight months’ imprisonment is set aside and substituted with a sentence of seven years and six months’ imprisonment.

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REASONS OF THE COURT

(Given by Mallon J)

Introduction

Mr Faiyum pleaded guilty to and was convicted of three charges of importing methamphetamine and two charges of importing cocaine.[1] He was sentenced by Judge Gibson in the District Court to eight years and eight months’ imprisonment.[2] Mr Faiyum appeals this sentence on the ground that it is manifestly excessive. He contends the Judge adopted an excessive starting point and should have given discounts for his methamphetamine addiction and previous good character.

The offending

[1]Misuse of Drugs Act 1975, s 6(1)(a) and (2)(a); maximum penalty of life imprisonment.

[2]R v Faiyum [2020] NZDC 3917.

The charges relate to Mr Faiyum’s involvement in the following importations:
(a)22 July 2017: an importation from a South African address to an Auckland address, via a package declared as “books”, examined by the New Zealand Customs Service (Customs) and found to contain about 633 g of methamphetamine inside the books;[3]
(b)1 September 2017: an importation from another South African address to a Papatoetoe address, via a package declared as “[p]ersonal effects”, examined by Customs and found to contain about 641 g of methamphetamine hidden inside the lining of a suitcase;[4]
(c)30 May 2018: an importation from a Cambodian address to a different Papatoetoe address, via a package declared as “picture and frame”, examined by Customs and found to contain 1.9 kg of high purity methamphetamine hidden inside a picture frame;
(d)20 September 2018: an importation from a Brazilian address to a Manurewa address, via a package declared as “inflatable gifts”, examined by Customs and found to contain 356 g of high purity cocaine concealed in a suitcase containing various items; and
(e)28 September 2018: an importation from another Brazilian address to another Manurewa address, via a package declared as “sports material, uniform, football boots, flip flops”, examined by Customs and found to contain about 181 g of cocaine in the lining of the suitcase.[5]
[3]The powder weighed 2,042 g and contained methamphetamine with a purity of 31 per cent, which equates to about 633 g of methamphetamine.
[4]The powder weighed 1,486 g and contained methamphetamine with a purity of 44 per cent, which equates to about 641 g of methamphetamine.
[5]The powder weighed 410 g and contained cocaine with a purity of 44 per cent, which is equivalent to about 180.5 g of cocaine. The amended summary of facts contained a typographical error, listing the cocaine amount as 1,805 g.
Mr Faiyum’s involvement in the first…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Faiyum v R

Details

AGLC: Faiyum v R [2020] NZCA 523
Case: [2020] NZCA 523
Decision Date: 23 October 2020 at 10 am

CaseChat Overview and Summary

In the case of Faiyum v R, the appellant, Mohammed Faiyum, was convicted of three charges of importing methamphetamine and two charges of importing cocaine. Faiyum was sentenced by Judge Gibson in the District Court to eight years and eight months' imprisonment, a sentence he now appeals on the ground that it is manifestly excessive. The central issues for the Court of Appeal were whether the starting point was correctly assessed, whether a discount should have been given for Faiyum's methamphetamine addiction, and whether a discount for previous good character should have been allowed.

The Court found that the starting point set by the District Court was too high, as Faiyum's role in the importations was not as significant as the District Court had concluded. While Faiyum was involved in a series of importations, the Court found that he was more akin to an intermediary rather than a leading figure, and thus a starting point of 10 years was more appropriate. Additionally, the Court held that a discount for Faiyum's methamphetamine addiction should not have been applied, as there was no sufficient nexus between his addiction and his decision to offend. The Court also found that a discount for previous good character should have been applied, as Faiyum's early life and family support made him a good prospect for rehabilitation.

Ultimately, the Court of Appeal allowed the appeal against sentence and substituted the sentence of eight years and eight months' imprisonment with a sentence of seven years and six months' imprisonment.

Orders