Miriau v The King
[2024] NZHC 1269
•21 May 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-625
[2024] NZHC 1269
BETWEEN CARLOS KAMEN MIRIAU
Appellant
AND
THE KING
Respondent
Hearing: 9 April 2024 Appearances:
H de Groot for appellant
B T Vaili and N C Vaughan for respondent
Judgment:
21 May 2024
JUDGMENT OF JOHNSTONE J
Solicitors:
Kayes Fletcher Walker, Auckland
MIRIAU v R [2024] NZHC 1269 [21 May 2024]
[1] On 8 November 2023, Judge S Bonnar KC sitting in the Manukau District Court sentenced Carlos Miriau to serve four years and 11 months’ imprisonment.1 Mr Miriau had pleaded guilty to a charge alleging that, with others, he imported 44.41 kilograms of methamphetamine into New Zealand.2
[2] Mr Miriau appeals against that sentence, saying it is manifestly excessive. He says, in particular, that:
(a)The Judge’s 11-year starting point should have been no more than six years.
(b)The guilty plea discount of 20 per cent should have been 25 per cent.
(c)Overall, a sentence of two years and five months should be substituted.
[3] I must allow the appeal if satisfied that for any reason there is an error in the sentence imposed and a different sentence should be imposed.3 The focus is on the end sentence rather than the process by which the sentence is reached. I should not intervene if the sentence is within range and can be justified by accepted sentencing principles.4
Was the starting point too high?
Sentencing for methamphetamine-related offending
[4] In Zhang v R, the Court of Appeal recalibrated New Zealand’s approach to sentencing for methamphetamine-related offending.5 It did so by retaining the use of bands set out in R v Fatu, guiding the selection of starting points for sentences based on the objective criteria of quantum, subject to modifications.6
1 R v Miriau [2023] NZDC 24831.
2 Misuse of Drugs Act 1975, s 6(1)(a) and (2)(a). Maximum penalty: life imprisonment.
3 Criminal Procedure Act 2011, s 250.
4 Ripia v R [2011] NZCA 101 at [15]; Tutakangahau v R [2014] NZCA279; [2014] 3 NZLR 482 at [36]; and Larkin v Ministry of Social Development [2015] NZHC 680 at [26].
5 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
6 R v Fatu [2006] 2 NZLR 72 (CA).
[5] Of initial relevance, band four in Fatu was subdivided to create a fifth band for quantities exceeding two kilograms, for which a presumptive starting point in the range of 10 years to life imprisonment was indicated.
[6] Further, Zhang focused the sentencing court’s determination of culpability inherent in the offending upon the particular role of the offender, introducing new role categories labelled “leading”, “significant” and “lesser”, and entertaining the possibility of the offender’s role taking the appropriate starting point outside the band that would otherwise be dictated by quantum alone.
[7] In Berkland v R, on the issue of starting points for methamphetamine-related offending, the Supreme Court observed that the three Zhang role categories provide “a useful lens through which to view the facts”, but that they “are a tool to aid evaluation, not a straitjacket”.7 Further, the Court proceeded to reformulate the “significant” role classification criteria, identifying two aspects that justified doing so:
(a)The Zhang criteria of “operational or management” function was said to require clarification, because managers in drug networks are likely to be more culpable than those whose tasks are merely operational.8
(b)The Zhang criteria of “actual or expected commercial profit” was said to be more appropriately couched as “actual or expected financial or other advantage, especially where commensurate with role and risk assumed”.9
7 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [65].
8 At [67] and [71].
9 At [70]–[71].
[8]The Supreme Court therefore set out its updated role profile table as follows:
Lesser Significant Leading 1. Performs a limited function under direction;
2. engaged by pressure, coercion, intimidation;
3. involvement through naivety or exploitation;
4. motivated solely or primarily by own addiction;
5. little or no actual or expected financial gain;
6. paid in drugs to feed own addiction or cash significantly disproportionate to quantity of drugs or risks involved;
7. no influence on those above in a chain;
8. little, if any, awareness or understanding of the scale of operation; and/or
9. if own operation, solely or primarily for
own or joint use on non-commercial basis.
1. Management function in operation or chain where, under direction from a leader, this entails directing others in the operation whether by pressure, influence, intimidation or reward;
2. operational function, whether operating alone or with others;
3. motivated solely or primarily by financial or other advantage;
4. actual or expected financial or other advantage, especially where commensurate with role and risk assumed; and/or
5. some awareness and understanding of the scale of the operation.
1. Directing or organising buying and selling on a commercial scale;
2. substantial links to, and influence on, others in a chain;
3. close links to original source;
4. expectation of substantial financial gain;
5. uses business as cover; and/or
6. abuses a position of trust or responsibility.
Judge Bonnar’s starting point
[9] Judge Bonnar sentenced Mr Miriau on the basis of the then agreed Crown summary of facts. The summary recorded that in February and March 2021, Mr Miriau’s cousin enlisted Mr Miriau’s assistance in the importation of 45 kilograms of methamphetamine into New Zealand. While the cousin and another co-offender knew the substance being imported was methamphetamine, “Mr Miriau knew that it was an illegal drug”.
[10]Further agreed facts were as follows:
(a)The consignment arrived at Christchurch International Airport from Lagos, Nigeria on 1 March 2021. Acting on his cousin’s instructions, Mr Miriau was in email contact with the freight forwarders, seeking
assistance with landing the consignment and providing the necessary documentation to progress its delivery.
(b)Customs officers inspected the consignment in Auckland on 9 March 2021. They found around 500 grams of methamphetamine in 89 of the 180 cans of palm fruit extract of which the consignment was comprised. Analysis disclosed a purity level of 61 per cent.
(c)On 18 March 2021, again on his cousin’s instructions, Mr Miriau drove in a car registered in his own name to the Manukau branch of the ANZ bank, and there, under the gaze of CCTV cameras, deposited
$2,825 cash into the freight forwarder’s bank account, clearing all outstanding fees relating to the landing and release of the consignment.
(d)On 29 March 2021, the Police and Customs Service undertook controlled delivery of the consignment to an address in Mt Eden. Another associate of Mr Miriau’s cousin, and another man (not Mr Miriau), took delivery. Mr Miriau’s cousin was arrested later that day.
(e)The police approached and spoke with Mr Miriau on 30 March 2021. He confirmed he had made the bank deposit, stating that his cousin had asked him to do it and provided the necessary details. Mr Miriau had collected the money for the deposit from a residential letterbox.
(f)Mr Miriau told police his cousin had provided an iPhone on which he sent around six emails of the type described at [10(a)] above. He said he gave the iPhone back to his cousin after making the bank deposit.
(g)Mr Miriau said that he knew there were drugs in the consignment, but he did not know how much or what it was worth. He added that he had received $5000 from his cousin before becoming involved with the import, and felt that his assistance was owed. Mr Miriau also said his
cousin had asked him to be a lookout during the consignment’s delivery, but he had made an excuse for his unavailability.
[11] The Judge observed that assessing a starting point for Mr Miriau’s offending by reference to Zhang and Berkland is not a “box ticking” or “mathematical” exercise. The starting point requires to be assessed by reference “not only [to] the quantity of drugs involved but, also, by an assessment of the individual person’s role in the importation, and what motivations or background factors may have led them to offend in that way”.10
[12] The Judge found that Mr Miriau “became involved initially … through an element of naivety and because of loyalty to [his] cousin”.11 However, he remained involved notwithstanding his knowledge of his cousin’s background and that what he was getting himself into was the importation of controlled drugs.
[13] The Judge further found that Mr Miriau was effectively acting under his cousin’s direction, and although he was likely to receive relatively little financial gain, he was nevertheless acting “primarily for financial gain” rather than because of addiction.12 Mr Miriau had some understanding of what was going on, but little understanding of its true extent.
[14] Having regard to Berkland, Mr Miriau’s offending probably fell into a “grey area, in the margins somewhere between a lesser role and a significant role”.13
[15] On that basis, the Judge rejected the submission that had been made for Mr Miriau of a starting point in the region of six to eight years’ imprisonment, finding that would not adequately address the relevant principles and purposes of ss 7 and 8 of the Sentencing Act 2002. His Honour added:14
I also consider, with the greatest respect, that a starting point which would be some 60 to 80 per cent of the entry point for band 5 is not appropriate here.
10 R v Miriau, above n 1, at [26].
11 At [29].
12 At [30].
13 At [29].
14 At [34].
This was a huge quantity of methamphetamine, some 22 times greater than the two-kilogram entry level for band 5.
[16] The Judge proceeded to adopt what was in his view “the lowest possible starting point” given Mr Miriau’s role and the quantity involved: 11 years’ imprisonment.15
The new facts for sentencing
[17] When I was hearing Mr Miriau’s appeal on 9 April 2024, a degree of confusion arose relating to its factual foundation. As indicated above, the sentencing before Judge Bonnar had proceeded on the basis of an agreed summary of facts. But the submissions offered for Mr Miriau and for the Crown on appeal drew, more broadly, from Mr Miriau’s police interview. I heard full submissions on the substance of the appeal but formally adjourned it part-heard, seeking written confirmation from counsel, preferably jointly, of the extent of any agreement between them on the facts before me on appeal.
[18] A new summary of facts was provided under a joint memorandum of counsel dated 26 April 2024. Upon further enquiry, it has emerged that:
(a)Counsel jointly offer the new summary relying upon s 9 of the Evidence Act 2006. They agree the Court should consider all facts thus agreed and should make its own assessment of the appropriate weight to be given to what Mr Miriau told the police when approached.
(b)The new summary differs substantively from that before Judge Bonnar as follows:
(i)Mr Miriau knew that an illegal drug was being imported “but not the type or quantity”.
15 At [35].
(ii)Mr Miriau told police the following additional things:
(i)At one point, Mr Miriau returned the iPhone to his cousin because he did not want to be involved further. The cousin then gave the iPhone back to Mr Miriau, who used it for one more email, before (as stated in the original summary) he returned it to his cousin after making the bank deposit.
(ii)Mr Miriau was distraught after making the bank deposit.
(iii)Mr Miriau did not know the value of the drugs in the consignment.
(iv)When receiving the $5,000 from his cousin prior to the importation and being asked to assist, Mr Miriau did not form the impression his cousin was seeking anything in return.
(v)Mr Miriau believed he would be paid for his involvement if the importation had been successful, but he did not know how much he would receive or when.
[19] In my view, nothing arising from the new summary of facts suggests that the culpability of Mr Miriau’s offending should be assessed any more leniently than the original summary of facts dictates. This is because:
(a)While the new summary expressly records that Mr Miriau did not know the type or quantity of drug involved, the original summary of facts implied as much. Judge Bonnar expressly recorded that Mr Miriau “may have not known the exact nature of the drug or the quantity involved” in the import.16
16 At [1].
(b)Mr Miriau’s lack of precise knowledge of drug type or quantity does not exclude his awareness of factors that must have given rise to grave suspicion:
(i)As stated in both summaries of fact, Mr Miriau’s cousin had been deported from Australia for offences involving methamphetamine supply. The Judge was entitled to come to the view he did, that since Mr Miriau and his cousin are very close, it could be assumed Mr Miriau knew of this background.17
(ii)His role in sending emails to the freight forwarders and paying their fees must have led him to understand that the drug consignment formed part of a large shipment of legitimate goods, and was sufficiently valuable to justify considerable expenditure.
[20] If anything, Mr Miriau’s admission that he expected to be paid for his involvement in the importation serves to confirm Judge Bonnar’s assessment that it was “primarily for financial gain”.
[21] Before departing from this aspect of the appeal, I make the following observation. It is undesirable that, in the absence of a considered basis for doing so, counsel in the context of a sentence appeal should seek to depart from the agreed facts for sentencing at first instance. The Court of Appeal in Mark v R confirmed that the principles for assessing the admissibility of fresh evidence for appeals against conviction “should be engaged where an appellant wishes to adduce fresh evidence for an appeal against sentence”.18 Those principles should be borne in mind.
Mr Miriau’s position on starting point
[22] Mr de Groot, counsel for Mr Miriau, submits the starting point adopted was based on a mischaracterisation of Mr Miriau’s role and was inflexibly attached to
17 At [2].
18 Mark v R [2019] NZCA 121 at [16].
quantum as the primary driver of sentencing. He says the Court should instead adopt a starting point of six years by re-evaluating Mr Miriau’s culpability. Properly assessed, it falls outside the usual bands. Alternatively, the Court should stand back and assess the overall criminality by reference to the purposes and principles of the Sentencing Act.
[23] More specifically, Mr de Groot submits that Mr Miriau’s actions were performed entirely under direction, without autonomy, and that they constituted an extremely limited role. Mr de Groot further submits that Mr Miriau did not seek to be involved, his relationship with his cousin was exploited, and the offending involved naivety. Mr Miriau’s actions were engaged in without, or with very little, actual or expected financial gain. There was also little, if any, awareness or understanding of the scale of the operation.
Discussion
[24] In my view, Mr Miriau’s role should have been assessed as “lesser”, rather than within a grey area between lesser and significant. His most substantial contribution towards importing the consignment was when he went to the bank to deposit freight forwarders’ fees in cash and obtain its release. That contribution is similar to the contribution of a drug courier: it was necessary to the offending, and it exposed him to considerable risk because it was likely he would be identified as involved if the offending were detected, but it was carried out under direction. In Philip v R the Supreme Court appears to regard “mere couriers” as occupying lesser roles, notwithstanding the operational nature of their involvement.19 And it therefore appears the label of “operational function”, set out in Berkland as indicative of a significant role, requires something more than active conduct essential to the completion of the offending and of a kind that itself illustrates the offender’s limited authority within the drug enterprise.
[25] But that said, it is important to observe that the lesser role described in Zhang and Berkland captures a range of forms of involvement. And that when the Supreme Court in Berkland stressed that role can be more impactful than quantum,
19 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571 at [31].
and can drive movement between bands, it added that that may be the case where, irrespective of quantum, the offender’s role “falls within the lower end of ‘lesser’”.20 For the following reasons, I do not consider that Mr Miriau’s role can be correctly described as at the lower end of lesser:
(a)First, Mr Miriau was not pressured, coerced or intimidated into his involvement. As the Judge recognised, any initial naivety or misguided loyalty fell away when Mr Miriau became aware (rather than merely suspected) he was being asked to facilitate the importation of controlled drugs into New Zealand. Yet Mr Miriau remained involved.
(b)Second, Mr Miriau was not motivated by addiction, and did not anticipate being paid in drugs.
(c)Third, Mr Miriau’s prior, independent receipt of $5,000 from his cousin, and his experience in paying $2,825 to the freight forwarders, can only have informed the weight of the expectation he admitted he had, of being paid. I accept the Crown could not show an expectation of substantial financial advantage, commensurate with the risk Mr Miriau took, but that would have been an indicator of a significant role in the importation. At best for him, Mr Miriau could be said to have had an expectation of “little” financial gain, not “no” financial gain.
(d)Fourth, Mr Miriau had at least significant cause to suspect the scale of the operation. He knew that a sum of $2,825 was required to facilitate the landing and release of the consignment, and as the one in email contact with the freight forwarders, the extent of documentation necessary. And he was aware of at least two other people being involved in the importation, thus indicating that its scale justified their engagement.
20 Berkland v R, above n 7, at [64].
[26] Turning to quantity, at 44.41 kilograms of methamphetamine imported into New Zealand, Mr Miriau’s offending falls well within band five of Zhang. Band five provides a presumptive range of starting points from 10 years to life imprisonment where the quantity of the drug is greater than two kilograms. As noted by Judge Bonnar, this was a “huge quantity of methamphetamine”, “some 22 times greater than the two-kilogram entry level for band 5”.21
[27] In light of the twin primary issues of role and quantum, I do not accept that Mr Miriau’s culpability should have been assessed as sitting below the lower reaches of band five. The very substantial quantity combined with Mr Miriau’s squarely lesser role required that he remain in band five. The starting point of 11 years gave due recognition to both aspects.
[28] Contrary to Mr de Groot’s submission , the examples provided in Zhang itself and in Philip tend to confirm this assessment:
(a)In Zhang, the Court of Appeal commented, as the sentence of Mr Zhang himself was not under appeal, that under the new guidelines they would have set the starting point for him at 15 years’ imprisonment due to his role at the lower end of significant and the large quantity of methamphetamine imported (17.9 kg).22 Mr Zhang’s role was assessed as at the lower end of significant because he served an operational function within a chain, took steps to ensure the methamphetamine cleared customs, and took actions indicating he was intending to package it for sale.23 He also appeared to have been receiving instructions from someone higher up in the chain of command. In comparison, Mr Miriau’s actions served a more modest operational function within the chain, largely by taking steps to ensure the substantial consignment cleared customs, but in respect of a quantity of methamphetamine imported over double that in Zhang. A starting point of 11 years appropriately recognises the differences in overall
21 R v Miriau, above n 1, at [34].
22 Zhang v R, above n 5, at [257].
23 At [256].
culpability between Mr Miriau and Mr Zhang’s actions, giving prominence to the former’s lesser role.
(b)In Philip, the Supreme Court held that the six-year starting point adopted in the High Court was within range where Mr Philip had pleaded to five charges of possession of methamphetamine for supply, the quantum was assessed at six kilograms, and Mr Philip’s role was assessed as being on the cusp of the lesser and significant categories of involvement.24 Mr Philip was described as “not a mere courier” so the Court could not place him entirely in the “lesser” role, but the little autonomy he exercised within the overall operation was also acknowledged.25 But his culpability was greatly reduced due to indicators of addiction and limited financial advantage. Mr Miriau’s most significant actions were similar to those of a courier. However, he performed other actions too, and was not motivated by addiction. Again, the amount of methamphetamine Mr Miriau imported was much greater.
[29] Overall, I agree with the Judge that a starting point of 11 years was appropriate given both the quantity and the role Mr Miriau played in the importation. No substantive error has been identified.
Was the guilty plea discount too low?
Judge Bonnar’s guilty plea discount
[30] Judge Bonnar observed that Mr Miriau’s guilty plea was not entered at the first reasonable opportunity. It came two years after Mr Miriau made full admissions of his involvement, immediately upon being approached by police.26
[31] The Judge was not prepared to accept the proposition of Mr Miriau’s then counsel, that a full guilty plea discount of 25 per cent should be applied because delay
24 Philip v R, above n 19, at [31], [38], [41].
25 At [31].
26 R v Miriau, above n 1, at [37].
caused by previous counsel’s advice to defer the entry of a guilty plea while awaiting the outcome of the appeals in Berkland and Philip should not be counted. Nevertheless, the Judge applied a 20 per cent guilty plea discount.
Mr Miriau’s position on discount for guilty plea
[32]Mr de Groot repeats the submissions made before Judge Bonnar.
Discussion
[33] The advice of Mr Miriau’s former counsel on the topic of delay has not been tendered in evidence. In the absence of such evidence, it should not be assumed that Mr Miriau decided to delay entering his plea on the basis of some false assurance that doing so would not erode such guilty plea discount as might otherwise be available. The more obvious conclusion to draw is that Mr Miriau chose to defer his guilty plea in the hope methamphetamine-related sentencing outcomes would decline, becoming more favourable for him.
[34] Further, the Judge was correct to emphasise Mr Miriau’s full admissions when first speaking to police. The Supreme Court in Hessell v R observed that the circumstances in which a guilty plea is made and what those circumstances indicate about the offender’s acceptance of responsibility for the offending are relevant.27 As is the strength of the prosecution’s case.28 The delay in Mr Miriau’s guilty plea served significantly to undermine his acceptance of responsibility for the offending. And it painted the plea as more likely made in simple recognition of the strength of the prosecution’s case.
[35] Overall, the Judge took a generous approach by applying a 20 per cent guilty plea discount.
27 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [60] and [65].
28 At [74].
Conclusion
[36] Judge Bonnar did not err in his approach to the starting point or guilty plea discount. The sentence imposed on Mr Miriau was not manifestly excessive.
[37]Mr Miriau’s appeal is dismissed.
Johnstone J
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