R v Bin-Abdoullah HC Auckland CRI 2010-092-11683

[2010] NZHC 1766

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-092-11683

THE QUEEN

v

ZAENAL AGIN BIN-ABDOULLAH

Hearing:         1 October 2010

Appearances: R E Savage for Crown

M A Edgar for Accused

Judgment:      1 October 2010

SENTENCE OF COOPER J

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140

Copy to:

M A Edgar, PO Box 6462, Wellesley Street, Auckland 1141

R V BIN-ABDOULLAH HC AK CRI-2010-092-11683  1 October 2010

[1]      Zaenal Agin Bin-Abdoullah, you appear today for sentence having pleaded guilty to a charge of importing the Class C controlled drug, pseudoephedrine.  That is an offence which, under out law, carries with it a possible maximum term of imprisonment of eight years.

[2]      It appears that on 3 July this year, you arrived at Auckland International Airport on a Malaysian Airlines flight from Kuala Lumpur.  Your itinerary indicated that you were to stay in new Zealand until 9 July.  You were selected for a luggage search at the airport and also a personal search by a Customs Officer.  The Customs Officer found two black sports jackets inside your suitcase.  On examination it was revealed that a total of 4.937 kilograms of yellow powder had been concealed in the lining of each jacket.   When that substance was analysed it was shown that the yellow powder was a pseudoephedrine based substance with a purity level of approximately 30 per cent.

[3]      The Crown has evidence that the pseudoephedrine found could yield between

900 and 1,300 grams of methamphetamine depending on the method that was used to manufacture the methamphetamine and the expertise of the person making it.  At the time you offered no explanation to the police for your actions and you declined to make any statement.

[4]      A pre-sentence report has been prepared for me today, which states that you were born in Malaysia and that you are 37 years of age, with no family or friends or acquaintances in New Zealand.  You are married and you have an adult step-son and back home in Malaysia you have responsibility for caring for your mother, who has ill health.   There is a history of epileptic seizures in your background which can occur if you eat the wrong things, but you have apparently been free of that for the last seven or eight years.

[5]      According to the report you told the person who wrote it that you did not know that pseudoephedrine could be manufactured into drugs and you are reported as having been ambivalent as to whether the drug was illegal in this country.  You admitted to the author of the report that it was you who had put the pseudoephedrine into the lining of the jackets and that you had come to New Zealand with that

substance in order to make money because you were having financial problems in Malaysia.  You claimed that you had no pre-arranged buyers for it in New Zealand and you denied that you were being instructed to bring the pseudoephedrine into this country.

[6]      Mr Edgar has, however, submitted to me today that I should treat you as a courier.  That is an inference that I am prepared to draw from the overall facts and it is, I think, an inference which is slightly in your favour, because otherwise I might have to treat you in a more serious way as somebody who had off his own bat, or of his own volition, developed this idea of coming into New Zealand with the pseudoephedrine.

[7]      I am afraid also that I cannot accept that you were other than very well aware that it was illegal to bring that substance into New Zealand and I consider that you must have calculated that in doing so you would make a substantial profit or that you were being well paid to bring the substance here, otherwise you would not have run the risks involved, nor gone to such lengths to conceal it from the authorities.

[8]      Both counsel who have addressed me today, have made written submissions, which I have read, as well as addressing me orally.   For the Crown, Mrs Savage, submits that I should adopt a starting point for sentencing purposes of between four years six months and four years nine months’ imprisonment having regard to the sentences that have been imposed in similar circumstances on other people.   A starting point for sentencing purposes is a stage in the process and it is the sentence that would otherwise be imposed but for mitigating considerations which would reduce the length of the sentence.

[9]      The  starting  point  suggested  by the  Crown  would  take  into  account  the serious nature of the offending, the considerable amount of methamphetamine that could be produced by using the substance that you brought into New Zealand, the harm done to those who consume methamphetamine and to New Zealand society as a whole by its use.   There is also in your conduct a high level of pre-meditation because of the steps that you took to conceal the substance in your two jackets.

[10]     The Crown acknowledges that you have no previous convictions in New Zealand or any convictions anywhere else, of which we are aware and as a result of that, accepts that there could be some discount in the sentence for your good character.  In addition, there must, of course, be a significant discount for your early guilty plea.

[11]     On your behalf, Mr Edgar, as I have earlier said, invited me to assume that you were nothing more than a courier, being “played”, as he put it, by someone else back home.  He submits that this was an action very much out of character and he also  submits  that  you  were  not  aware  how  the  substance  could  be  used.    He maintains that you possibly thought that it was a Chinese medicine that you were bringing into the country.   I am afraid I cannot accept that for reasons that I have already given.

[12]     Mr Edgar emphasises your lack of previous conviction, your early guilty plea, a degree of insight into your offending that you have now developed, and remorse.   Because you do not speak English, he submits that serving a term of imprisonment in New Zealand may be more harsh for you than it would be otherwise and he has referred to your history of epilepsy and your various family obligations in your home country.  He invites me to impose the lowest term of imprisonment that the circumstances will justify.

[13]     In suggesting a starting point of between four years six months and four years nine  months,  the Crown  was  in  a  position,  as  I have  said,  to  point  to  various sentences that have been imposed in other cases on those who have offended in a similar way.   I have had regard to those cases and consider in your case that a starting point of four years and six months would be appropriate.

[14]     It  is  necessary  to  acknowledge  the  significant  damage  done  by  the importation of substances that can be used to manufacture methamphetamine and the ruinous effects that methamphetamine has on the lives of those who use it.  That is why pseudoephedrine-based substances command such a high price in New Zealand and there is no doubt that the length you went to to conceal what you were importing shows that you calculated to make a profit from your crime.  Such conduct must be

denounced and it is necessary to impose a sentence that deters both you and others from such conduct.  I sentence you also, however, on the basis either that your likely roll was simply that of a courier, or on the basis that if it was your own idea, it was not something that you had previously been engaged in.  Nor is there a suggestion, on the facts able to be proved, of a network in New Zealand that you might have been supplying.

[15]     Nevertheless, I consider that the starting point of four years and six months is appropriate.    From  that  point  there  must  be  deductions.    First,  I  make  some allowance in respect of your previous good character and to a small degree to reflect apparent remorse and difficulties that you might have from being imprisoned in New Zealand given that you do not speak English.   But the allowance for these factors cannot be great and the Court of Appeal has said that foreign nationals who are non resident in New Zealand and do not speak English but who chose to import drugs into New Zealand, cannot expect generally, a greater discount than others.

[16]     In your case there is the added suggestion of health problems, however, and overall in respect of these various matters that I have just been discussing I consider it would be appropriate to allow a discount of six months on the sentence that would otherwise be imposed.   That would bring the sentence back to four years’ imprisonment, but from that point there must be a further deduction of one-third because of your early guilty plea.  That brings the final sentence back to a period of two years and eight months.

[17]     You should now stand.

[18]     On the charge of importing the Class C controlled drug, pseudoephedrine, you are now sentenced to imprisonment for a term of two years and eight months.