R v Al-Hachache
[2017] NZHC 1929
•14 August 2017
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 defendantSentenced:
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 bags containing ephedrine. The total weight of
the drug was three kilograms, which has a street value of some $300,000.4 That
quantity, as you know, is well over the 10 grams at which possession of ephedrine is presumed to be for supply.5 The police also found $105,000 in cash. Given the cash was located inside the tyre rims alongside one of the ephedrine packages, which the jury found to be in your possession, I am satisfied beyond reasonable doubt that this cash was also in your possession. Both the quantity of ephedrine and cash indicates this was no small operation.
[9] The representative charge of supplying ephedrine covers the entirety of the investigation period, and relates to the supply of an unknown quantity of that drug. The supply of the drug over this period was indicated by the totality of the intercepted text messages and phone calls in which you participated, as well as the cash found in the tyre rims. Given the representative nature of the charge, it is not known how much and on how many occasions you supplied ephedrine. However, the jury was clearly satisfied beyond reasonable doubt, as was I, that you had supplied ephedrine on at least one occasion during the relevant time period.
[10] The investigation also revealed that you had a sideline arrangement in which you supplied methamphetamine to a Mr Moore. He was a single customer and it is likely you sold relatively small quantities of the drug to him. This is indicated by a police search of Mr Moore immediately after he had visited you at Osaka Tyres to collect methamphetamine on 18 March 2016. The search found 0.44 grams of the drug in his possession. The evidence as to the other three transactions comes from intercepted communications between you and Mr Moore, as well as video footage. It is not known how much of the drug you supplied to Mr Moore on those occasions, but I agree with your counsel, Mr Hewson, that it is appropriate to infer that those other instances of supply involved similar small quantities.
Setting the starting point
[11] The primary purpose of my sentencing you today is to denounce your conduct, and to deter you and others from engaging in similar drug offending.6
[12] I agree with the Crown and Mr Hewson, in their written submissions, that the most serious offence is the class B drug (ephedrine) offending, and in particular, the charge of possession for supply. Although the methamphetamine offences have higher maximum penalties, they do involve much smaller quantities of the drug. I will therefore take the ephedrine offending to be the lead charges, and will consider it first. Your other charges will then be accounted for by way of adjustments to the starting point, before I consider personal matters relevant to you.
[13] As both the Crown and Mr Hewson have submitted, the Court of Appeal’s decision in R v Wallace is considered to be the leading authority for class B drug offending.7 There, the Court noted that small drug operations involving some element of commercial dealing will generally attract starting points of up to five years imprisonment.8 In contrast, a starting point of five to eight years’ imprisonment will be appropriate where there is commercial dealing of a class B
drug, where that offending is on a substantial scale, reflecting sophistication and
6 Sentencing Act 2002, s 7(e) and (f).
7 R v Wallace [1999] 3 NZLR 159 (CA); confirmed to be the leading authority by R v Wang
[2014] NZCA 409.
8 At [32].
organisation with operations extending over a period of time, though not involving massive quantities or prolonged dealing.9
[14] In a later decision, the Court of Appeal emphasised the need to apply Wallace with some flexibility, taking into account not only the nature and size of the transaction, but also the role of the offender within the drug-supply network.10
[15] Your counsel, Mr Hewson submits that you were only a caretaker, or a custodian, of the drugs, who knowingly stored the ephedrine and its proceeds on behalf of one of your associates, who was in reality the principal. He therefore submits that your offending falls somewhere between the top end of the first band of “small commercial dealing”, and the lower end of the second band of “substantial commercial dealing”.
[16] Mr Northwood, however, submits that you were significantly involved in a sophisticated, commercial operation, and that the appropriate starting point in your case is well within the second band, being six to eight years’ imprisonment.
[17] With those matters in mind, I turn to consider the appropriate starting point for your charge of possessing ephedrine for supply.
[18] I am of the view that:
(a) Your offending involved a significant commercial element. Not only is the large quantity of ephedrine found at Osaka Tyres indicative of this factor, but so is the approximately $105,000 in cash also in your possession.
(b)Your offending was sophisticated, although I do not consider it to have been highly so. The evidence at trial indicated that you used Osaka Tyres as a means to conceal your offending. You then used coded car and tyre-related language to discuss the drug enterprise with
associates. Also implicit in this, in my view, is a high degree of premeditation.
(c) On the basis of the evidence at trial, I accept that you were not the mastermind or ringleader of the enterprise. However, I am firm in my view that you were no mere caretaker or custodian. The intercepted messages at trial, in my view, indicated that you were well-embedded in the drug operation, and that you liaised closely with other individuals for supply and delivery of ephedrine.
[19] Taking these matters into account, I consider that your offending falls within the second band advised by the Court of Appeal in Wallace, albeit at a slightly lower level than urged by the Crown.
[20] The Crown has provided me with a number of other sentencing authorities within this Wallace band, whilst also conceding that sentencing in this area varies significantly and does not always correlate with the amount supplied.11 I have reviewed those cases and agree that they are of limited assistance, save to the extent that they reinforce my view that an appropriate starting point for your sentence is within the five-to-eight year band in Wallace.
[21] All things considered, including Mr Hewson’s submissions as to your earlier bail conditions, but taking into account in particular, your role in this drug operation and the reasonably significant commercial nature to it, I adopt a starting point of six years and six months’ imprisonment for the ephedrine offending.
Uplift for related offending
[22] As I noted earlier, you were also convicted of four charges relating to the supply of methamphetamine to Mr Moore.
[23] I am satisfied beyond reasonable doubt that you supplied Mr Moore with less than two grams of methamphetamine in total. Proceeding on that basis, your
methamphetamine offending would fall within band one from the Court of Appeal’s
11 R v Sun [2017] NZHC 6; R v Wu [2015] NZHC 1733; R v Cavanagh [2015] NZHC 2498.
guideline judgment, in R v Fatu, as Mr Hewson has submitted this morning.12 Band one applies in cases involving smaller amounts of methamphetamine, being less than
5 grams. In these cases, but reflecting the seriousness of that drug in question, the starting point for offending within this band would ordinarily be between two and four years’ imprisonment.
[24] Taking into account the need for totality, however, I consider an appropriate
uplift for all of these charges is 12 months’ imprisonment.
[25] That brings your provisional starting point to seven years and six months’
imprisonment.
Personal factors
[26] Turning then to your personal factors, I note that you are 53 years old and that you are of Lebanese descent. You moved to New Zealand some 27 years ago and you have made this country your home. All close members of your family, however, remain in Lebanon, and I am told, and I have read through the letters provided to me this morning, that you maintain close contact with them. I am also informed of your 13 years in the Lebanese army, beginning from when you were only a young teenager. The author of the pre-sentence report suggested that you may have some post-traumatic stress issues resulting from that time of your life.
[27] Mr Northwood has drawn my attention to (and Mr Hewson has responsibly also noted) your unfortunately not insignificant previous convictions for drug offending, the most serious of which was conspiring to deal with a class A drug, being methamphetamine/amphetamine. That offending happened in June 2005, and for it you were sentenced in 2007 to 6 years’ imprisonment. You also have six other convictions relating to methamphetamine, for some of which you also received sentences of imprisonment. You committed those offences between 2001 and 2005. Of concern is that there appears to be an escalation in the seriousness of your offending over time.
[28] Mr Northwood submits that I should uplift your starting point by a further
12 months to recognise your prior offending. I agree that an uplift is appropriate to recognise the greater need for deterrence in your case, and also recognition of greater culpability. Your prior offending, however, did happen some 12 years ago (though for some of that time you will have been in prison), and I read in the pre-sentence report that you have attempted some rehabilitation efforts. Mr Hewson has also emphasised this morning your efforts in setting up and running your own business upon your last release from prison. I therefore apply a smaller uplift than urged on me by the Crown of 6 months’ imprisonment.
[29] As to your personal mitigating factors, I note that the principles of deterrence generally take priority over the personal circumstances of offenders involved in commercial drug dealing.13
[30] The pre-sentence report records you as saying that when you were released from your last prison sentence, you came out “a different person, a better person”, and you were no longer on drugs. As noted, since that time you have also set up your own business. Accepting the statements, that you came out and have not use illicit drugs since that time at face value, you are to be commended for that. But there is a flip side. The present offending demonstrates that, despite having taken yourself off drugs, you have nevertheless knowingly and deliberately involved yourself in a not insignificant drug supply enterprise. You have also personally supplied methamphetamine to Mr Moore. Ultimately, your actions, and the actions of your associates, contribute to many people having access to and becoming addicted to methamphetamine. I am sure you are aware of the devastating effect this drug has on its users and the New Zealand society more generally.
[31] The pre-sentence report speaks of your self-referral for treatment for certain mental health issues. However, I do not consider these matters warrant any discount to your sentence. Nor do you express remorse. No other matters have been raised which would warrant a discount.
[32] That therefore brings your end sentence to eight years’ imprisonment.
Minimum period of imprisonment
[33] As a final matter, the Crown contends that a minimum period of imprisonment should be imposed, on the basis that the standard parole period would be insufficient to denounce your offending and deter you from reoffending.14
[34] The Court of Appeal has recognised that a minimum period of imprisonment will almost be inevitable in cases of “very serious drug offending”.15 Although your end sentence falls below the nine-year demarcation which is often used to identify when drug offending will typically receive a minimum period of imprisonment,16 that demarcation is by no means an absolute cut-off point.17
[35] I have carefully considered whether a minimum period of imprisonment is warranted in this case. Your offending involved the possession of a significant quantity of ephedrine, a methamphetamine precursor. This was serious offending, and your previous methamphetamine convictions indicate that a minimum period of imprisonment could well be appropriate.
[36] On balance, however, and I emphasise “on balance”, I am not satisfied that a minimum period of imprisonment is warranted in this case. However, Mr Al- Hachache, you should be under no illusion that if, upon release from this sentence, you re-engage in similar drug offending, the Court is likely to take a most stern view. It is in your hands now, Mr Al-Hachache, to make a change and bring a real end to what is otherwise a worrying and escalating pattern to your offending.
Sentencing
[37] Would you please now stand, Mr Al-Hachache.
[38] Mr Al-Hachache:
14 Sentencing Act, s 86.
15 R v Aram [2007] NZCA 328 at [78].
16 R v Anslow CA182/02, 25 October 2005 at [27]; Fleming v R [2011] NZCA 646.
17 McSweeney v R [2012] NZCA 90 at [33].
(a) On the charge of possession of the class B drug ephedrine for supply, I
sentence you to eight years’ imprisonment.
(b) On the representative charge of supplying the class B drug ephedrine,
I sentence you to one year’s imprisonment.
(c) And, on each of the four charges of supplying the class A drug methamphetamine, I sentence you to one year of imprisonment.
[39] But, all of those sentences are to be served concurrently, so that is a total sentence of eight years.
[40] Please stand down, Mr Al-Hachache.
S Fitzgerald J
2
7
0