R v Arama

[2023] NZHC 953

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2021-088-2754

[2023] NZHC 953

THE KING

v

ITI STRICKLAND ARAMA

Hearing:	4 April 2023
Appearances:	R Annandale for the Crown W McKean for Mr Arama
Sentence:	4 April 2023

SENTENCING NOTES OF ROBINSON J

Solicitors/counsel: MWIS, Whangarei WRMK, Whangarei

R v ARAMA [2023] NZHC 953 [4 April 2023]

Introduction

[1]    Good morning, Mr Arama, you appear before the Court today for sentence having pleaded guilty to participating in an organised criminal group.1

Outline

[2]    I will begin by briefly setting out the factual basis on which I am going to pass sentence today and I will do that by referring to the summary of facts which you accepted when you entered your guilty plea. You of course know what that says and so do I, but it is important that we do this in public and that people know what you’re pleading guilty to.

[3]    I will then explain the way in which I am going to determine your sentence and the process I have adopted for that and why. I will take into account your personal circumstances which might explain any increase or reductions to a starting point which I am going to set as you have heard from my discussion with the lawyers.

Offending

[4]    In terms of your offending Mr Arama, your conviction is the result of Operation Freya, a joint Police and Customs investigation which commenced in March 2021 that focused on your group’s activities. Operation Freya revealed a significant drug operation in the Northland region, mostly of methamphetamine but occasionally in other class B controlled drugs as well.

[5]    It appears that Kauri Kerr spearheaded these operations and he of course is your daughter’s partner. She was also involved in the group. The summary of facts records that the total amount of drugs that Customs intercepted that are attributed to this group are 20 kilograms of methamphetamine, 5.4 kilograms of MDMA and one kilogram of pseudoephedrine.

1      Crimes Act 1961, s 98A. Maximum penalty 10 years’ imprisonment.

[6]    As to your role in the group Mr Arama, you and your extended whānau live at a property on Rawhiti Road. Kauri Kerr and your daughter and their family were living at the property next door.

[7]    Although you were not actively involved in procuring or manufacturing drugs with the group, you did allow your property to be used to collect deliveries and importations of controlled drugs on behalf of the group. Packages intercepted by Customs that were addressed to your property between 30 June 2020 and 6 April 2021 contained 1.3 kilograms of methamphetamine, 4.4 kilograms of MDMA and one kilogram of pseudoephedrine.

[8]    It appears that you were in charge of a significant amount of money for your daughter and  Kauri Kerr.  On  one  occasion  as  you  have  heard  us  discuss,  on  28 October 2021, your daughter called you asking to get some cash for her to collect. When you asked her if she wanted “all of it”, she said “no I just need $140,000”. Then, when the Police searched your address on 12 November 2021 they seized over

$70,000 worth of cash wrapped in note bundles. There doesn’t seem to be any dispute that the cash is from the proceeds of criminal activity.

[9]    You also received drugs from the group’s operations, at least cannabis according to the summary of facts, which you sold as part of your own operation. However, it seems to be acknowledged you didn’t obtain significant financial benefits from that side business.

Approach to sentencing

[10]   As I am sure it has been explained to you, calculating the appropriate sentence is a two-stage process.2 First, I must fix what’s called the starting point that this type of offending attracts. That involves identifying the aggravating and mitigating features of your offending, that is matters that make your offending more or less serious, to arrive at an appropriate starting point for a term of imprisonment. At the second stage I’ll take into account your personal circumstances that are relevant,

2      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

including your guilty plea. I will determine whether the starting point should be adjusted through uplifts or discounts as a result of those personal circumstances.

[11]   In sentencing you today, I must have regard to the purposes and the principles of sentencing set out in the Sentencing Act.3 The primary purposes of sentencing in this case are to hold you accountable for the harm that you have done,4 to denounce the conduct that you have been involved in,5 and to deter you and others from committing similar offences in the future.6 The Courts have recently reaffirmed the importance of deterrence in cases like this which involve commercial drug dealing, noting that offending is “enormous profitability” and of course, this Court like courts up and down the country everyday see the disastrous consequences for our community that occur as a result of this drug.7

[12]   I need to consider the gravity of your offending and your degree of culpability,8 that is your responsibility for your offending and for the seriousness of the offending.9 In addition, and importantly, your sentence must be consistent with other similar cases,10 and I must impose the least restrictive sentence appropriate in the circumstances.11

Starting point

[13]   In setting a starting point for your offending Mr Arama I take into account that although your role in the enterprise was limited, you as a group member must bear a degree of responsibility for the wider scale of the offending. That is the whole purpose of a conviction for participating in an organised criminal group.12 The group’s offending could not operate without each member playing its part. The Crown has submitted that a starting point between three and three-and-a-half years is appropriate

3      Sentencing Act 2002, ss 7 and 8.

4      Section 7(1)(a).

5      Section 7(1)(e).

6      Section 7(1)(f).

7      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [90].

8      Sentencing Act 2002, s 8(a).

9      Section 8(b).

10     Section 8(e).

11     Section 8(g).

12     Paku v R [2011] NZCA 269 at [12].

for your role in the offending and on your behalf Mr McKean has suggested two-and- a-half years.

[14]   Having considered the authorities referred to me,13 I agree that a starting point of three years is appropriate. In saying this, I take into account the scale of the wider group’s operations and intended operations, your knowledge of those operations, your role in providing an address to receive importations of methamphetamine and other substances, your handling of large amounts of money for your daughter and Mr Kaur and the summary of facts that you have accepted which records that you operated your own drug-dealing business which allowed you a capability to earn an income.

Personal circumstances

[15]   In terms of your personal circumstances Mr Arama, you do have previous convictions that go back some time but the Crown does not suggest that those require an uplift at your sentence today and I agree that no uplift is required.

Guilty plea

[16]   In terms of your guilty plea, Mr McKean suggests that your entitled to the full discount of 25 per cent. He says to me that you pleaded guilty at the first opportunity once you had  received  all  of  the  material  that  you  needed  from  the  Crown.  Mr Annadale says that there should not be a discount of more than 20 per cent. However, having looked at the way in which this investigation unfolded and the way that it affected you, I am prepared to give you a discount of 22.5 per cent.

Remorse

[17]   In terms of your remorse, Mr McKean says that you should have an additional discount for that because your remorse is genuine. Mr Annadale for his part suggests to me that some of the correspondence that is front of me perhaps indicates that the only reason you have expressed some remorse is indeed to try and get a lower discount. But, having read the material that is before me, including the s 27 cultural report and

13     See R v Tali [2022] NZHC 2181 and the cases summarised in those sentencing notes by Powell J at footnotes 10 and 11. See also R v Parao [2016] NZHC 1105; and R v Richardson [2021] NZHC 1160.

the pre-sentence report, I am prepared to give you a discount of five per cent for remorse.

Reports

[18]   In terms of the other issues that have been raised in the pre-sentence report and the cultural report I accept Mr McKean’s submission that whilst they do not necessarily demonstrate approximate causes of your offending, they are factors that can be taken into account and I am prepared to give another five per cent discount for those.

EM bail

[19]   It is agreed I think Mr Arama that the time that you have spent on EM bail is also something that I need to take into account and that entitles you to a further discount. There is no suggestion that you have failed to comply with the conditions of your EM bail and it does appear that you have been on EM bail for quite some time. I also accept as Mr McKean said that it appears that for you, in some respects I think, it might have been a bit of a silver lining or a blessing in disguise and it does appear that you have gone some good way to getting your life back on track while you have been on EM bail. So, I am prepared to give a further discount of 15 per cent for that.

[20]   By my calculations Mr Arama that gives a discount of 47.5 per cent on an end sentence of 36 months. So that is a discount of 17 months which results in an end sentence of 19 months’ imprisonment.

Home detention

[21]   Because your sentence is now 19 months’ imprisonment and that is what is known as a short-term sentence, home detention is an option. As I have said you have been on EM bail since your arrest, and you have complied with all conditions. As I have noted you are now drug free and you appear to be focused on living a pro-social and good life and not going back doing these sorts of things ever again.

[22]   I am satisfied that home detention is appropriate in that regard. I have seen the PAC report which confirms that the address continues to be appropriate and your brother who is staying there with you.

[23]   Considering this, and taking into account all the circumstances of your offending Mr Arama, as I say, I agree that home detention is appropriate. Mr McKean has also pointed out that in short sentences, offenders are released after serving half of their sentence so therefore it is customary to halve the end sentence of home detention if imposed. Taking all of that into account I impose an end sentence of ten months’ home detention.

Result

[24]   Mr Arama, I sentence you on the charge of participating in an organised criminal group your sentenced to ten months’ home detention on the conditions set out in the PAC report.

Post-detention conditions

[25]   I impose further that post-detention conditions apply for six months following completion of Mr Arama’s sentence.

Robinson J