Faiyum v R
[2020] NZCA 523
•23 October 2020 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA94/2020 [2020] NZCA 523 |
| BETWEEN | MOHAMMED FAIYUM |
| AND | THE QUEEN |
| Hearing: | 7 October 2020 |
Court: | Gilbert, Mallon and Ellis JJ |
Counsel: | L B Cordwell for Appellant |
Judgment: | 23 October 2020 at 10 am |
JUDGMENT OF THE COURT
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.
____________________________________________________________________
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 and second importations was to telephone the distributor to inquire about their delivery status and to provide the unique tracking number, his mobile number and the name “Fai” as references. Mr Faiyum’s connection to the remaining importations was identified by a search of his mobile phone by Customs on his arrival into Auckland International Airport on 1 October 2018 after returning to New Zealand from a period spent living in Fiji. His mobile phone contained screenshot photographs of text messages, websites and handwritten notes containing the name, address and unique tracking number for the third and fifth packages, and the phone number of the consignee and the unique tracking number for the fourth package. A subsequent search of his home address on 11 October 2018 located the sender details for the third package, two mobile phones and several SIM cards.
The total quantities imported in the five packages were around 3.2 kg of methamphetamine and around 535 g of cocaine.[6]
Mr Faiyum’s affidavit
[6]This is the total quantity of cocaine stated in the agreed summary of facts. It is a little less than the total of the approximate amounts stated in [2(d)] and [2(e)] above.
Mr Faiyum filed an affidavit for his sentencing. He was 32 years old at the time of the offending. He was born in Fiji but has lived in New Zealand since 2005 apart from some months living back in Fiji in 2018. He worked at a courier company from 2012 until his return to Fiji in 2018. He developed a good working relationship with his customers and would often check on packages for them so that they knew when to expect their parcels.
At the end of 2016 Mr Faiyum separated from his second wife after seven and a half years of marriage. He then started drinking heavily and taking drugs. During this phase he met some new “friends” who were members of a gang and often socialised with them “until very late”. They knew he was working as a courier. His new friends asked if he would make inquiries about the movement of packages that they were expecting from overseas. They would provide him with the tracking number of the packages and the consignee details. These packages were not coming through the courier company that Mr Faiyum worked for, but he used his experience and contacts to make inquiries with the other courier companies about the packages. After a while, he knew the packages related to the illegal importation of drugs, but still agreed to help with them.
In mid-2017 Mr Faiyum was contacted by one of these friends, who asked him to keep track of various packages for him. Mr Faiyum told him on the telephone that he did not want to do this anymore. At the beginning of August 2017, he heard a knock on his door. He opened the door and two of his friends pushed their way into his house. He was threatened with violence if he continued to refuse to help. One of the visitors punched Mr Faiyum and hit him six times in the chin. He was told to pick up the package. The visitors left Mr Faiyum bleeding and in pain. Mr Faiyum took himself to the hospital. He did not want the police to become involved so he told the hospital that he had fallen and hit a step. After this incident, Mr Faiyum was worried these people would beat him up again. He became scared to go home and was constantly watching for people coming up his driveway.
Mr Faiyum’s affidavit attached the report of his hospital visit on 6 August 2017. This recorded that Mr Faiyum attended the hospital with a laceration on his chin, a tender left joint and was unable to fully open his mouth. It also recorded Mr Faiyum’s explanation that he had slipped on a doorstep.
Mr Faiyum expressed his extreme shame at getting involved in the importations. While accepting that it was not an excuse for his crime, he said that it happened during a difficult time of his life when he was making bad decisions and associating with people he did not know well.
Other information before the Court at sentencing
Mr Faiyum has no previous convictions. The pre-sentence report writer assessed his risk of re-offending as low.
Letters of support were provided by his first wife (with whom he had a son), his brother, and two friends. They described Mr Faiyum as a good father and a hard worker and said that his offending had come as a shock. His former wife also says that Mr Faiyum was depressed and lonely when his second marriage broke up.
A cultural report was submitted to the Court pursuant to s 27 of the Sentencing Act 2002. He had a happy childhood in Fiji, married young and moved to New Zealand where he had a range of jobs. He started using drugs recreationally during his second marriage and became hooked on methamphetamine and was also taking cocaine after separating from his second wife. He bought his drugs from gang members and was going “hard on the drink”. He told them he was a courier driver and one thing led to another. His brother was aware he had been punched and ended up in hospital, and that Mr Faiyum was reluctant to return to New Zealand when he went back to Fiji. He carries the burden of the shame that he brought on his family and was not thinking about the harm that drugs do to people.
District Court judgment
In assessing the starting point for the offending, the Judge noted that the quantity of drugs put the offending within band five of Zhang v R.[7] He identified the aggravating features as being the large degree of commerciality involved with $1.5 million worth of drugs imported, the fact that it was not a one-off activity, and that there was a degree of sophistication in that the drugs were being sent from several overseas places to different addresses. The Judge regarded Mr Faiyum as having played a “reasonably significant role as a catcher”.[8] He considered that Mr Faiyum had organised the addresses to which the packages were to be sent, was going to be involved in distribution and was not acting under instructions. The Judge considered a sentence of 11 years’ imprisonment was an appropriate starting point but for the element of coercion involved.[9]
[7]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125]. Band five applies to quantities over 2 kg, for which 10 years to life imprisonment is the guideline.
[8]R v Faiyum, above n 2, at [23].
[9]At [25].
The Judge was sceptical of Mr Faiyum’s evidence about why he did not tell the authorities about the true cause of his injuries on 6 August 2017. The Judge noted that Mr Faiyum could have described what had happened without identifying the perpetrators to the medical practitioners. He could also have reported the matter to the police. The Judge was, however, prepared to accept “there may have been some coercion of him at some point, but it was not particularly serious”.[10] He reduced the starting point to 10 years and six months’ imprisonment to account for this coercion element.[11]
[10]At [15].
[11]At [25].
The Judge declined to allow a discount for matters discussed in the cultural report. His view was that the background did not provide the necessary nexus to the offending because Mr Faiyum’s upbringing could not be said to have led him inexorably along the path to offending.[12]
[12]At [16].
The Judge also declined to allow a discount for previous good character. He accepted that Mr Faiyum would ordinarily be entitled to credit for previous good character. He then referred to a High Court decision in which it was said that such a discount was generally reserved for older offenders who had lived an otherwise blameless life and then committed one or two offences.[13] Here, Mr Faiyum committed a series of offences over a period of a year and involved himself in a very serious commercial importation of illicit drugs. The Judge was therefore not prepared to provide a previous good character discount.[14]
[13]At [27], referring to R v Fangupo [2019] NZHC 2896 at [39]. The Judge’s sentencing notes erroneously referred to this case as R v Hingapo.
[14]At [28].
Mr Faiyum entered his guilty plea on the eve of the trial. He had, however, signalled to the Crown sometime earlier that there would be guilty pleas. The Crown suggested a discount of 15 per cent for the guilty plea, which the Judge accepted.[15]
[15]At [28].
This resulted in an end sentence of eight years and eight months’ imprisonment. The Judge declined to impose a minimum period of imprisonment.[16]
The appeal
The starting point
[16]At [29].
Mr Cordwell, counsel for Mr Faiyum, submits it is not clear exactly what role the Judge considered Mr Faiyum to have had with reference to the indicia set out in Zhang — namely “lesser”, “significant” or “leading”.[17]He submits Mr Faiyum fell into the “lesser” role using that indicia because he was performing his role under direction; he was engaged by coercion; he was an addict; there was little or no financial gain; he had no influence on those above him and was assaulted when he attempted to step away; and he had no awareness of the operation beyond the five importations with which he was involved.
[17]Zhang v R, above n 7, at [126].
Mr Cordwell refers to the starting point of eight years’ imprisonment adopted in R v Fangupo for an offender (Mr Finau) with a “lesser” role involved in three importations containing 5.1 kg of methamphetamine and a small amount of cocaine.[18] He also refers to Singh v R, where the same starting point was applied to a co-offender, who also had a lesser role in the same importation conspiracy and had allowed his home address to be used for the receipt of packages containing a total of 4.45 kg.[19] He submits a starting point of eight years was also appropriate for Mr Faiyum.
[18]R v Fangupo, above n 13, at [31].
[19]Singh v R [2020] NZCA 211 at [19].
The Crown supports the starting point adopted by the Judge for the reasons he gave about Mr Faiyum’s role. We consider the Judge’s starting point was too high because he overstated that role. The available inference from the summary of facts is that Mr Faiyum’s role was to pick up the packages on behalf of the importers. He had the details of the consignment and the addresses on his mobile phone to enable him to do that. There is no evidence to challenge Mr Faiyum’s affidavit that he was doing so at the direction of others with whom he had become involved because of his drug‑taking and drinking lifestyle during this period. There is no evidence that his motive was primarily financial gain, although the scale of the importations would indicate there was to be some financial reward for Mr Faiyum.
Of the “significant” role indicia, Mr Faiyum must have had some awareness and understanding of the scale of the operation given the number of packages, the different country and sender details, and the different goods in which the drugs were concealed. All of this indicates a degree of sophistication in the operation. He was not, however, directing others by pressure, influence, intimidation or reward and the other two “significant” role indicia are not entirely applicable. Of the “lesser” role indicia, we consider that Mr Faiyum had no influence on those above him in the chain. We agree with the Judge that there was a degree of coercion, but the reality was that Mr Faiyum could and should have reported this to the police. We consider the other “lesser” role indicia do not apply at all or at least not fully. We consider Mr Faiyum was not entirely assisting in the operation to feed his addiction, but nor was he entirely motivated by financial gain. We therefore consider Mr Faiyum’s role was somewhere between “lesser” and “significant”.
We consider Mr Faiyum was more competent and aware of the scale of the operation in which he was involved than the offenders in Fangupo and Singh, who received starting points of eight years’ imprisonment for their involvement in importations which had a greater total of methamphetamine (although involved fewer importations). In our view a starting point at the bottom of band five, that is, a starting point of 10 years’ imprisonment, was appropriate for Mr Faiyum.
Addiction discount
Mr Cordwell submits that Mr Faiyum should have received a discount because of his addiction to methamphetamine. He refers to:
(a)Zhang v R, which held that a discount is available for addiction depending on the extent to which it mitigates moral culpability;[20]
(b)To’a v R, where a discount of five per cent was allowed for the offender’s methamphetamine addiction on a sentence for large‑scale conspiracy to supply, offering to supply and supplying 504 g of methamphetamine;[21] and
(c)Roulston v R, where a discount of 10 per cent was allowed for the offender’s methamphetamine addiction on a sentence for the manufacturer and supply of that drug.[22]
[20]Zhang v R, above n 7, at [149].
[21]To’a v R [2020] NZCA 187 at [26].
[22]Roulston v R [2020] NZCA 255 at [42].
Mr Cordwell submits a discount of 10 per cent should be allowed for Mr Faiyum. He says Mr Faiyum is more comparable to Mr Roulston (where there was a degree of commerciality, but the principal driver was addiction) than to Mr To’a (who was more directly involved and received a significant financial reward). He also says that the cultural report gave a credible account of Mr Faiyum’s social dislocation in New Zealand when he was unhappy and lonely after the break up of his second marriage.
The Crown submits there was an insufficient evidential basis to justify a discount because Mr Faiyum’s addiction is self-reported.[23] The Crown also submits the Judge was entitled to consider there was an insufficient nexus between Mr Faiyum’s addiction and his decision to offend. The Crown refers to statements by Mr Faiyum in the cultural report to the effect that after his break up he was working long hours as a courier driver (with methamphetamine giving him energy), he had a lot of money from selling a house, he wanted to have fun and he “went next level” on the alcohol and the drugs. The Crown submits this suggests there was no element of necessity in the offending and the indicators are that Mr Faiyum was functioning in an organised and rationale way.
[23]See Zhang v R, above n 7, at [148].
The Judge did not give specific reasons for declining a discount for addiction. The Judge was presumably unimpressed with the partying lifestyle Mr Faiyum was leading. He emphasised the great harm that methamphetamine does to our community. There can be no doubt about that and we agree that Mr Faiyum did not paint the more common picture of an addict’s lifestyle that the courts in this country see. We also agree with the Crown submission that Mr Faiyum’s addiction was self-reported (the cultural report on this aspect was based solely on what Mr Faiyum reported to the writer of that report).
We also agree with the Judge that there is no sufficient nexus between Mr Faiyum’s involvement in drugs and any social dislocation he felt. Mr Faiyum had successfully carved out a life for himself in New Zealand. His unhappiness about his second marriage break up does not justify any discount. We do accept that Mr Faiyum became involved because his drug use had gotten out of control after that break up and he was mixing with those involved in supplying it. To some extent his out of control lifestyle is likely to have impaired his judgment in getting involved in this importation operation. That involvement was out of character as the letters of support and his lack of previous convictions indicate. We have accounted for Mr Faiyum’s drug-fuelled lifestyle in assessing his role in the operation. We consider that Mr Faiyum’s impaired judgment is better viewed as decision-making that was out of character and is better considered under the discount for previous good character.
Good character discount
Mr Cordwell submits the Judge erred in not allowing a discount for previous good character. He refers to decisions of this Court that have confirmed that such discounts are available to those who were generally law-abiding citizens before becoming involved in serious offending.[24] He submits that a 10 per cent discount should have been allowed as it was in Chai v R and in Singh v R.[25]
[24]The submissions cited the following examples: R v Findlay [2007] NZCA 553 at [91]; R v Sargeant (1974) 60 Cr App R 74 (EWCA Crim) at 77; and Chai v R [2020] NZCA 202.
[25]Chai v R, above n 24, and Singh v R, above n 19.
The Crown resists the submission the Judge erred in not allowing such a discount, relying on this Court’s decision in Taylor v R.[26] There, it was recognised that the “absence of previous convictions is, of itself, evidence of prior good character and worthy of some recognition”.[27] This Court went on to say that the position was more difficult where an offender “accumulates a series of offences, for which they are to be sentenced”.[28] In Cindy Taylor’s case, however, the Court had no difficulty in finding that the Judge was correct to decline a good character discount. She was sentenced for manslaughter for the death of her mother due to what this Court described as “the most dreadful neglect” and had also committed dishonesty offending before and after causing this death.[29] The Court explained:
[30] The application of these principles to the sentencing of Cindy Taylor creates no difficulty, however. In our view the Judge was right to deny Cindy Taylor a discount for good character on the manslaughter charge. First, for the 18 months prior to that offending she had been committing serial dishonesty offending in relation to her uncle’s superannuation payments. Secondly, the manslaughter of her mother was followed by renewed dishonesty offending in continuing to claim her mother’s superannuation payments following her death. By no means could a discount for good character reflect a realistic and justifiable perception that here was an isolated lapse in grace by a person of otherwise good character who had good prospects of rehabilitation.
[26]Taylor v R [2017] NZCA 574.
[27]At [25].
[28]At [26].
[29]At [1].
We consider Mr Faiyum’s circumstances were more like those of Mr Chai and Mr Singh (each of whom had become involved in a series of methamphetamine importations and had no prior convictions) than Ms Taylor. Mr Faiyum’s good character in his early life and until he went out of control, his family support, and his shame at his offending, make him a good prospect for rehabilitation. We consider a 10 per cent discount should have been allowed.
End sentence
We conclude that the end sentence imposed in the District Court was manifestly excessive. With a starting point of 10 years imprisonment and discounts of 10 percent for good character and 15 per cent for the guilty plea, the end sentence is seven years and six months’ imprisonment.
Result
The appeal against sentence is allowed.
The sentence of eight years and eight months’ imprisonment is set aside and substituted with a sentence of seven years and six months’ imprisonment.
Solicitors:
Crown Law Office, Wellington for Respondent
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