R v Atta

[2016] NZHC 2478

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2015-085-001882 [2016] NZHC 2478

THE QUEEN

v

MOHAMED SOLIMAN HUSSAIN ATTA

Counsel:

S W P Woods for Crown

D A Ewen for Defendant

Sentence:

18 October 2016

NOTES ON SENTENCE OF COLLINS J

Introduction

[1]      Mr Atta, this morning I am sentencing you in relation to seven representative charges of importing methamphetamine1 and one representative charge of conspiracy to supply methamphetamine.2

[2]      You pleaded guilty to those charges after I gave you a sentence indication on

15 September 2016.3  That was the second sentence indication you received.4

[3]      This morning I shall:

(1)       explain your offending;

(2)       set out the starting point for your sentence;

1      Misuse of Drugs Act 1975, s 6(1)(a). Maximum penalty is life imprisonment.

2      Section 6(2A)(a). Maximum penalty is 14 years’ imprisonment.

3      R v Atta [2016] NZHC 2184.

4      R v Atta HC Wellington CRI-2015-085-1882, 2 November 2015 per Simon France J.

R v ATTA [2016] NZHC 2478 [18 October 2016]

(3)       explain the adjustments to the starting point; (4)         set out your end sentence; and

(5)       explain the structure of your sentence.

Your offending

[4]      An investigation codenamed “Operation Gandolf” targeted the activities of an organised criminal group involved in the importation and distribution of methamphetamine throughout New Zealand.  You were at the centre of the group in New Zealand.

[5]      Throughout the investigation, you were serving a full custodial sentence at Rimutaka prison. You facilitated, using your contacts in Thailand, the importation of drugs. You would communicate with a buyer wanting to obtain drugs and you would arrange for the importation to occur.  You were paid a fee, usually $5,000 for each importation.  The quantities involved for the importation charges related to multiple packages of 100 grams or 200 grams of methamphetamine.   The total quantity of methamphetamine imported was 1,758 grams.

[6]      The conspiracy to supply methamphetamine charge relates to you proposing to give your co-defendant, Mr Belmont, seven grams of methamphetamine at the price of $400 per gram.   You advised he could on sell that methamphetamine for

$800 per gram.

Personal circumstances

[7]      You are 40 years old and you have previously appeared before the court. Your drug-related offending includes one conviction for importing 197 grams of

cocaine in 2010. You were sentenced to 10 years and six months’ imprisonment.5

5      R v Atta DC Auckland CRI-2010-004-018720, 1 December 2011.

Starting point

[8]      The importation of methamphetamine charges are the lead charges for the purposes  of setting a starting point.   The tariff  judgment  for methamphetamine importation offending is R v Fatu.6   It is agreed your offending falls within band 4, importing  very large  commercial  quantities.    Band  four  of  R  v  Fatu  attracts  a sentence of between 12 years to life imprisonment.

[9]      Your offending has the following aggravating features:

(1)Planning and premeditation:7    premeditation is inherent in this type of offending and is particularly evident given the lengthy period and number of offences involved.

(2)Quantity, value and scale:8     in total you imported 1,758 grams of methamphetamine.  This was a large quantity of drugs and the scale of the operation you ran was considerable.  You received a significant financial benefit of $5,000 from each importation.

(3)Role in the offending:9   the Crown describes you as the mastermind of the offending.  You were, as I have said, at the centre of the offending in New Zealand.  You are the only defendant involved in every single charge and you co-ordinated the offending in a significant way.

[10]     I have taken into account relevant authorities10  and sentences imposed upon your co-defendants.11   I reach a starting point of 16 years’ imprisonment.

6      R v Fatu [2006] 2 NZLR 72 (CA).

7      Sentencing Act 2002, s 9(1)(i).

8      R v Fatu, above n 6.

9      At [31]: where an offender fits within any particular band will depend not just on the quantity and purity of the drugs involved but also on the role played by the offender.  Those who a re

primary offenders can expect starting point sentences towards the higher end of the relevant band with the converse applying to those whose role is less significant.

10     Lam v R [2012] NZCA 280 and R v Wong [2009] NZCA 332.

11     R v Blewden [2015] NZHC 3159; R v Moka [2016] NZHC 40 and R v Derek Te Hau [2016] NZHC 619.

Uplifts – personal aggravating features

[11]     The Crown submits an uplift is necessary for your notable conviction for cocaine importation in 2010.   It is relevant that you were serving a sentence of imprisonment for drug importation offending.  An uplift of 18 months is appropriate to reflect the fact your offending occurred when serving a sentence of importing cocaine.

Personal mitigating features

[12]     No personal mitigating factors have been presented that would have enabled me to reduce your sentence.

Guilty pleas

[13]     I am willing to give you a discount of 25 per cent for your guilty pleas because your guilty pleas were entered soon after the Crown agreed to alter some of the charges you were facing.

[14]     This results in a sentence of 13 years and two months’ imprisonment.

Minimum period of imprisonment and concurrent term

[15]     The most challenging aspect in sentencing you concerns the following two questions:

(1)Should the sentence be cumulative upon your existing sentence or concurrent?

(2)      Should I impose a minimum period of imprisonment?

[16]     The practical consequences of these choices are reflected in the following

table which will be made available to you later today:

Cumulative		Concurrent
No MPI	50% MPI	No MPI	50% MPI
Parole eligibility date	31 July 2020	11 Oct 2022	10 March 2021	18 May 2023
Final sentence expiry date	1 December 2037		18 December 2029
Total period of imprisonment	26 years		18 years and 17 days

Concurrent term of imprisonment

[17]     The sentence which I impose will be a concurrent sentence of imprisonment. This reflects my intention that you serve a substantial period of imprisonment for your offending, but not a sentence that would be wholly disproportionate to your offending which it could be if the sentence I am about to impose were a cumulative

sentence of imprisonment.12  A concurrent sentence appropriately reflects the totality

principle in s 85 of the Sentencing Act 2002.

[18]     Mr Ewen has urged me to adjust the sentence to reflect the position you would  have  been  in  had  you  received  my  sentence  indication  at  the  time  you received your first indication in November 2015.

[19]     I have reflected on this suggestion but have concluded the sentence I am about to impose is the appropriate sentence and is a proportionate response to all of

your offending and circumstances.

12     Faulkner v R [2016] NZCA 315 and Sentencing Act 2002, s 85.

Minimum period of imprisonment

[20]     I am satisfied that the criteria for the imposition of a minimum period of imprisonment  are  satisfied  in  your  case.13      Mr  Ewen  does  not  dispute  that  a minimum period of 50 per cent is appropriate.

[21]     Section  86  of  the  Sentencing Act  2002  enables  the  Court  to  impose  a minimum period of imprisonment where the effective sentence might otherwise fail to  satisfy all  or  any of  the sentencing purposes  of accountability,  denunciation, deterrence and community protection.

[22]     These criteria are all met in the circumstances of your case.14   Your offending was serious, persistent and you were undeterred by the fact that you were already serving a fulltime custodial sentence.

[23]     In my assessment, the appropriate minimum period of imprisonment is 50 per

cent, namely six years and seven months’ imprisonment.

Conclusion

[24]     Mr Atta, can you please stand.

13     86 Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment

(1) If a court sentences an offender to a determinate sentence of imprisonment of more than 2

years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular sentence.

(2) The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:—

(a)   holding the offender accountable for the harm done to the victim and the community by the offending:

(b)   denouncing the conduct in which the offender was involved:

(c)   deterring the offender or other persons from committing the same or a similar offence: (d)   protecting the community from the offender.]

(3) Repealed.

(4) A minimum period of imprisonment imposed under this section must not exceed the lesser of—

(a)   two-thirds of the full term of the sentence; or

(b)   10 years.

(5) For the purposes of Part 6 of the Criminal Procedure Act 2011], an order under this section is a sentence.

14     R v Aram [2007] NZCA 328; R v Anslow CA182/05, 18 November 2005; R v Wang [2009] NZCA 118.

[25]     On each of the charges of importing methamphetamine, you are sentenced to

13 years and two months’ imprisonment, with a minimum period of imprisonment of six years and seven months.

[26]   In relation to the one representative charge of conspiracy to supply methamphetamine, you are sentenced to seven years’ imprisonment.  That sentence is concurrent.

[27]     All of your sentences are concurrent to the existing period of imprisonment that you are serving.

[28]     Stand down.

D B Collins J

Solicitors:

Crown Solicitor, Wellington