R v Al-Hachache - [2017] NZHC 1929

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-004-396 [2017] NZHC 1929

THE QUEEN

v

ROGER EMMANUEL AL-HACHACHE DEFENDANT

Hearing: 14 August 2017

Counsel:

BR Northwood for Crown
SN Hewson for defendant

Sentenced:

14 August 2017

SENTENCING NOTES OF FITZGERALD J

Solicitors: Meredith Connell, Auckland
Ord Legal, Wellington

R v Al-Hachache [2017] NZHC 1929 [14 August 2017]

[1] Mr Al-Hachache you can remain seated until I ask you to stand at the end.

[2] Roger Emmanuel Al-Hachache, you appear for sentence before me today after a jury found you guilty of six charges relating to the possession and supply of controlled drugs. Those charges were:

(a) a charge of possessing the class B drug ephedrine for supply;1

(b) a representative charge of supplying the same class B drug ephedrine;2

and

(c) four charges of supplying methamphetamine, which is a class A drug.3

[3] The maximum sentence for the ephedrine charges is 14 years’ imprisonment,

while the maximum sentence for supplying methamphetamine is life imprisonment.

[4] Before I go further, I would like to acknowledge the presence in Court today of your partner, and I understand your stepdaughter, and to thank them for the letters that they have written to me, which I have read this morning.

Facts

[5] I now provide a brief factual background to the charges. While of course you and the lawyers here today are very familiar with this background, it is important that others in the public more generally are aware of the basis upon which I am sentencing you today.

[6] On 1 August 2015, the police commenced “Operation Bunk”, a covert investigation into the manufacture and supply of methamphetamine. The investigation involved the interception of communications between you and other associates. The police also conducted covert video surveillance of your workplace,
Osaka Tyres, where you also resided for a short time during the investigation period.

1      Misuse of Drugs Act 1975, s 6(1)(f).
2      Misuse of Drugs Act, s 6(1)(c).
3      Misuse of Drugs Act, s 6(1)(c).

[7] The investigation revealed, and the jury found, that between 1 August 2015 and 31 March 2016, you were involved in the possession and supply of ephedrine, which is a precursor substance used in the manufacture of methamphetamine. Osaka Tyres was used as “base” for these purposes, and it was clear from the evidence that others within the supply and distribution network were not infrequent visitors to that place. The use of Osaka Tyres provided not only a place in which the ephedrine could be securely stored (being carefully hidden inside tyre rims, amongst 100s of tyres at Osaka Tyres), but also allowed you to speak with associates using coded language referring to automotive work and tyres in particular.

[8] In terms of the charges upon on which you were found guilty, most significant are the quantities of ephedrine found in your possession when the police searched Osaka Tyres on 31 March 2016. Concealed between the rims and wheels of three tyres were three separate plastic…

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 R v Al-Hachache

Details

AGLC: R v Al-Hachache [2017] NZHC 1929
Case: [2017] NZHC 1929
Decision Date: 14 August 2017

CaseChat Overview and Summary

Roger Emmanuel Al-Hachache was found guilty of six charges related to the possession and supply of controlled drugs by a jury. The charges were possession of ephedrine for supply, a representative charge of supplying ephedrine, and four charges of supplying methamphetamine. The court had to decide on the appropriate starting point for sentencing and any necessary uplifts or discounts to the sentence. The court also had to consider whether a minimum period of imprisonment was warranted.

The court considered the nature and scale of the offending, as well as the role of the defendant within the drug supply network. The court found that the defendant's offending fell within the second band of "substantial commercial dealing" and set a starting point of six years and six months' imprisonment for the ephedrine charges. The court then considered the methamphetamine charges and determined an uplift of 12 months was appropriate. The court also considered the defendant's personal factors, including his previous convictions for drug offences and his efforts towards rehabilitation. The court ultimately determined that a six-month uplift was appropriate to recognise the defendant's prior offending. The court found that no discount was warranted for personal mitigating factors.

The court determined that a minimum period of imprisonment was not warranted in this case, but warned the defendant that if he re-engaged in similar drug offending upon release, the court would take a stern view. The court sentenced the defendant to eight years' imprisonment for the possession of ephedrine for supply, one year for the representative charge of supplying ephedrine, and one year for each of the four charges of supplying methamphetamine. All sentences were to be served concurrently, resulting in a total sentence of eight years.

The court ordered that the defendant, Roger Emmanuel Al-Hachache, be imprisoned for a total of eight years.

Orders