R v Dixon
[2017] NZHC 920
•9 May 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2015-009-5968 [2017] NZHC 920
THE QUEEN
v
LEE DIXON
Hearing: 9 May 2017 Appearances:
N A Pointer for the Crown
M Starling for Mr DixonSentencing:
9 May 2017
SENTENCING REMARKS OF NICHOLAS DAVIDSON J
Sentence today
[1] Please remain seated Mr Dixon. You appear for sentences on these charges:
·a single representative charge of importing a Class A drug, namely cocaine; and
· four charges of supply and one charge of offering to supply a Class A
drug, namely cocaine.
For each, the maximum penalty is life imprisonment.1
1 Misuse of Drugs Act 1975, ss 6(1)(c) and (2)(a), Crimes Act 1961, s 66.
R v DIXON [2017] NZHC 920 [9 May 2017]
[2] You also appear for sentencing on a minor charge of failing to provide a password to a police officer exercising a power to search, for which the maximum sentence is three months imprisonment.2
[3] I will outline the facts, identify relevant sentencing purposes and principles and then assess the appropriate starting point in the sentencing process, taking into account any aggravating or mitigating factors and the seriousness of the offending as a whole. I will address aggravating and mitigating factors particular to you, to adjust that starting point. Finally, I consider the imposition of a Minimum Period of Imprisonment (MPI).
The Facts
[4] Although you pleaded guilty to these charges, you contested large parts of the relevant facts, and central to that contest was the quantity of cocaine you imported.
[5] A disputed facts hearing was conducted before me and judgment delivered on
21 February 2017.3 The facts of the offending were traversed in detail in the course of that judgment. I found it to be proved beyond reasonable doubt that you imported not less than six kilograms of cocaine, although the Crown alleged far more than that. Through counsel, you maintain that you were not involved in importation of cocaine in this amount, but that judgment is the basis on which you must be sentenced today.
[6] The Crown case was based on your sending USD$109,797 out of New Zealand to pay for cocaine purchased in Colombia and imported within the date range particularised in the charge. Currency transactions to remit US Dollars overseas took place between 20 January 2015 and 23 April 2015, mostly through Western Union, but you also handed USD$70,000 to a Special Duties Undercover
Constable in Hagley Park in March 2015 for remittance offshore.
2 Search and Surveillance Act 2012, s 178.
3 R v Dixon [2017] NZHC 210.
[7] The Crown case was based in substantial part on these currency transactions, and it relied on the expert evidence of a DEA (or Drug Enforcement Administration) Special Agent from the Tokyo Office. That agent gave evidence in this Court.
[8] No drugs were found to which the importation charge relates. You admit you did import cocaine but only to the extent reflected in the small supply charges, less than 100 grams according to the notes I made. The Crown alleges that you imported far more than six kilograms of cocaine, but without the seizure of such drugs, or direct evidence, the case against you was based on inferences. One striking piece of evidence was the delivery of a 10 kilogram package by FEDEX from Venezuela to Rakaia in June 2015 described in the FEDEX documents as a submersible pump. It was never found. Communications by you which revolve around that package are resonant with drug language, and dealing.
[9] When you were arrested, you said the currency transactions arose because you were investing in US currency, and you sent money to South America via Western Union for friends who were travelling there. You did not remember meeting someone, who was the undercover officer, in Hagley Park and handing over USD$70,000.
[10] The expert witness explained that cocaine is usually in powdered (salt) or crystalline (crack) form, usually produced in South American jungle laboratories using coca leaves and other chemicals and solvents. The most common use of cocaine is nasal inhalation, whereas crystalline or crack cocaine is smoked.
[11] The Colombian Drug Cartels are said in that evidence to be defunct, or largely so, and other criminal organisations have emerged, known as “Emerging Criminal Organisations”.
[12] At the relevant time, the usual price of cocaine at the Colombian source was USD$2,500 per kilogram which includes transportation and taxes or levies paid to the appropriate criminal organisation. This converted in the US to retail prices of USD$30 to USD$100 per gram for powder and for crack USD$25 to USD$150 per gram.
[13] Remittance of money to pay for the drugs involves money laundering organisations, and money brokers and those who exchange foreign currency are used as well. The expert witness said that Panama and Hong Kong are very common locations for drug trafficking organisations to launder drug proceeds. The Western Union transactions in which you were involved were in several names belonging to third parties. The remittances were structured into small, relatively equal amounts and over short periods of time. This indicates the avoidance of potential reporting requirements to law enforcement, and the scrutiny of larger transactions. All the individuals who retrieved the money were Colombian, and as the money was sent to Panama and Hong Kong there was a clear indication of Colombian involvement at locations that do not point to such involvement for legitimate purposes.
[14] The transaction with which you were involved has been assessed by the expert witness as involving your purchase of cocaine at a price range of between USD$1,670 to USD$2,475 per kilogram which fell within the range of USD$1,550 to USD$2,550 from internal DEA data.
[15] Although Mr Starling put up a very strong defence on your behalf regarding the inference to be drawn from the monetary transactions, I was satisfied on all the evidence there was no reasonable alternative explanation for them, other than your importation of cocaine into New Zealand, and anything else would be speculative.
[16] An issue which concerned the Court, reflected in the Judgment, was whether the monetary transactions, to purchase cocaine and the cost of importation, fell within the charge period. The expert evidence was that drug traffickers do not expect payment ahead of delivery. They are criminals. Remitting money offshore as you did, makes no sense without the drugs being received first. The rule described by the special agent is “Never front the money”.
The ease of offending
[17] Your offending here was remarkably casual, and seems to have been very simple for you to undertake. You had been to South America and had established contacts. There seems to have been no difficulty for you in sourcing the drugs, and
the texts which accompanied your liaison with a supplier in Colombia reflect just how straightforward it was, and you express surprise at how cheap it was.
[18] Your text traffic with someone in South America reflects what, to the Court seems a futile and useless code. The references to “hat tricks” and “scoring a goal” were plainly associated with purchase and importation of drugs. One wonders why you even bothered with such a code. International authorities work to identify and intercept drug transactions and money laundering, and you fell foul of those measures.
Provision of advice to Courts
[19] I want to refer to the provision of advice to the Court which covers all sentencings.
[20] Influential factors behind your offending are drug dependency and relationship issues. It appears you resumed using cocaine during your holiday in Colombia in 2014, following the breakup of a relationship.
[21] It appears your use of drugs began in the United Kingdom as Mr Starling has just mentioned, and your recreational use became a dependency. You tried to make a clean break by coming to New Zealand and for some years it seems you did. Your visit to Colombia brought the temptation of readily available cocaine.
[22] Even on your own account, you imported some 100 grams of cocaine for your own use, but you say some friends became aware of that, and you sold them some. Your own consumption, self reported, was about every three days and every weekend.
[23] You have reflected on the profound and negative effects of drug dependency, and your vulnerability. You have suffered epilepsy since you were a teenager. You have had a number of seizures, including some recently. The frequency and severity of those seizures may have worsened through cocaine use, but that is speculative.
[24] You are at a medium risk of re-offending because of the scale of the offending. At the same time, you have no violence related charges, indeed a very limited record of any kind, which suggests your potential for harm to others is low, other than by your involvement in this very serious drug importation and dealing which should not be understated.
[25] You are no longer dependent on cocaine given your remand in custody, but you know you are vulnerable to substance misuse and will engage in programs to address that. You have already done so while on remand.
[26] You are in New Zealand on a permanent residents visa and the sentence that will be imposed will place your residency in jeopardy under the Immigration Act. You have a seven year old child with your former partner whom you have not seen since you were remanded in custody. This is a high price to pay. Your sister and your father are important supports to you. You lost your mother three months before you were remanded in custody. You have good skills and qualifications, and were of real value to your employer. You have lost your way, as you do not have the criminal record in the past often associated with such serious offending.
Principles and Purposes of Sentencing
[27] The relevant purposes and principles of sentencing are set out in ss 7 and 8 of the Sentencing Act 2002.
[28] The primary purposes of sentencing here are to denounce and deter you and others from serious offending of this kind. This is part and parcel of protecting the public from the scourge of drug importation and dealing. As the Court of Appeal said in Terewi v R:4
As with any drug offending for the purpose of profit making…[t]he fundamental requirement is that the sentence imposed should act as a deterrent to other persons minded to engage in similar activity.
[29] You must be held to account for the unquantifiable harm to the community which stems from such substantial offending. I must take into account the gravity
4 Terewi v R [1999] 3 NZLR 62 (CA).
and seriousness of the offending,5 and the need for consistency of sentence for similar offending.6 This last consideration is reflected in the careful and realistic submissions for the Crown and by your counsel, Mr Starling.
Guideline offending and appropriate starting point
[30] The Crown submits that you must be sentenced on the basis that you were a key player in a large-scale commercial operation for the importation into New Zealand of cocaine from Colombia. Mr Starling in effect acknowledges this. There was no evidence however of market activity in New Zealand of scale, which suggests a means of distribution. I do not however find that your involvement includes a sophisticated means of distribution as there is no evidence of that.
[31] Counsel refer to R v Fatu,7 which is the leading tariff case for Class A drug offending which involved methamphetamine. This constitutes guidance for Class A drug offending, although I am aware as just discussed, of the Court’s caution that it was intended to apply only to methamphetamine offending.8 However, as there is no tariff case for the importation of cocaine, the sentencing bands are instructive. There is public interest in this matter and I describe them as follows:9
·Band 1: low level importation (less than 5 grams), two and a half to four and a half years imprisonment;
·Band 2: importing commercial quantities (between 5-250 grams), three and a half to 10 years imprisonment;
·Band 3: importing large commercial quantities (250-500 grams), nine to 13 years imprisonment;
·Band 4: importing very large commercial quantities (of 500 grams or more), 12 years to life imprisonment.
5 Sentencing Act 2002, ss 8(a) and (b).
6 Section 8(e).
[32] Cocaine is not treated as any more, nor less evil, than any other Class A drugs. I have no evidence to draw a distinction. While sentences for large scale cocaine importation are less frequent than for methamphetamine, they reflect the same determination to deter the importation of drugs for commercial dealing, denounce such offending, and there is a fundamental element in those respects, and in the sentences imposed, of protection of the public. The notion that cocaine is a “party” drug which somehow carries less sting in its effect and the way the law should approach it, must be put aside.
[33] While there are differences between the different drugs within Class A, and drug offending in terms of quantity, potency and effect on the human body and brain, and on society, there is no basis for me to apply a different tariff for importation of cocaine in particular. The offending here clearly and comfortably falls within Band 4. Importation of six kilograms of cocaine makes this case one of the larger importations to have come before the Courts. On the submissions made to me today, something with a street value in excess of $2,000,000. A starting point in the range of 12 years to life imprisonment is directed. The Crown advocates for a starting point of 17 to 18 years, whereas Mr Starling advances a starting point of
16 to18 years.
[34] In R v Liava’a, importation of four kilograms of cocaine, was at the time the largest detected importation of that drug in New Zealand. This case goes back over
20 years.
[35] The starting point adopted of 15-16 years factored in some related drugs charges. The Court of Appeal considered that for offending which represents the most serious of its kind, a starting point of 17-18 years imprisonment was warranted, and to reduce that because it was “naïve” offending or because cocaine was less
harmful than heroin, was unsupported by authority.10 The case was in fact decided in
1998, and the Sentencing Act 2002 now provides as a principle of sentencing the need for offending approaching the most serious to be met with a sentence near the maximum.11
[36] R v Tshisa, importation of cocaine (of not less than two kilograms), also involved exportation to Australia of 2.8 kilograms of cocaine, and importation of a small but not insubstantial quantity of methamphetamine. A starting point of
17 years was not disturbed on appeal.12 His Honour Justice John Hansen for the
Court said:
[23] The primary focus in sentencing for class A drug offending must be the seriousness of the offending and the culpability of the offender. This is established by reference to the number of offences, the quantity, quality and value of the drugs involved, and the extent of the offender’s involvement.
[37] The representative nature of the charge of importation is relevant to culpability, as here.13 The Court said that purity of the drug was a relevant consideration (and in that case and in R v Liava’a the approximate purity was between 60 and 80 per cent). I do not know of course the purity of cocaine in this case. In R v Liava’a there had been four known importations making up the four kilograms apprehended. The finding that no less six kilograms was imported clearly speaks to the seriousness of the offending.
[38] Agwu v R is a recent Court of Appeal authority which guides the sentence in this case.14 It involved the importation of what was conservatively estimated to be four and a half kilograms of cocaine. The Court referred to the Judge’s characterisation of the offending, with which it agreed:15
…Mr Agwu was not the international mastermind of the operation, but he was involved with those who dispatched the drugs from overseas, and he was the head of the operation in New Zealand. The operation was well organised, involved substantial quantities of cocaine and was a commercial money-making venture.
[39] The Court considered that the Judge’s starting point of 18 years was “stern
but nevertheless within range for an importation of class A drugs of this scale”.16
12 R v Tshisa CA507/05, 31 August 2006.
13 At [29]. See also R v Xie CA397/05, 8 August 2006.
[40] In R v Ogaz, a starting point of 15 years was considered within range for the importation of 976 grams of cocaine from Australia.17 The quantities involved make your case more serious.
[41] In R v Aroh, one of the appellants had imported 3.4 kilograms of cocaine secreted in children’s books. There was associated importation of much lesser amounts of cocaine, and a small quantity of heroin. The Court of Appeal considered that a starting point of 17 years was “at the top of the available range”, but was nevertheless available.18
[42] Mr Starling accepts who has made realistic submissions accepts that this Court is likely to be guided by the authorities in R v Tshisa and Agwu v R. I consider the offending in this case is up there with the most serious of its kind and at least as serious as that exhibited by the authoritative sentences cited to the Court.
[43] For this large scale commercial importation, and some supply, I reach a global starting point for all offending of 17 years imprisonment. That takes into account the aggravating features of the offending which inform its seriousness. There are no mitigating features which relate to the offending.
Uplift to the starting point
[44] I address the question of an uplift. You had a recent conviction for importing a small quantity of cocaine, for which you were sentenced to home detention. Only part of that sentence was served before you were arrested on these charges.
[45] This is relevant criminal history. This aggravates the offending and a relatively small uplift of six months would mark that. However, as I discussed with counsel, you do not have the criminal record one associates with this sort of offending for which you are being sentenced. Nothing in your past indicates such large scale offending as this and on that basis I give you credit for that against the seriousness of the charge you face and the sentence, and I do not uplift.
Mitigating discounts
[47] You maintain you have not participated in importation of cocaine to the extent which this Court has found and it follows there is no remorse, nor acceptance of the seriousness of your offending, except to that which you admit.
[48] You are entitled to credit, in my view, for the guilty pleas entered before trial for importation and supply. The Crown submits that you pleaded guilty to the charges at a late stage, after multiple case reviews were adjourned to give you the opportunity to review the evidence. The Crown contends a 10 to 15 percent discount is appropriate.
[49] You do not accept that you entered guilty pleas at a late stage. Mr Starling submits that the charges were still being modified regarding the involvement of two co-offenders, and disclosure by the Crown included more than 10,000 documents for one of your co-offenders. He contends for a discount of 15 to 20 per cent.
[50] Mr Dixon I think your position was understandable regarding your pleas. You wished to challenge the crucial element of the amount of cocaine and the judgment of this Court put that at the very bottom end of the range for which the Crown contended on the expert evidence. The issue for the Court was a difficult one, and you were entitled to put the prosecution to proof on that issue.
[51] While guilty pleas were entered at a late stage that meant that not all matters had to go to trial, which would have been long and challenging for the Crown. You disputed important parts of the facts. Counsel estimates, in my view conservatively, that trial on all matters would have taken longer than two weeks. The Court has been saved time and expense, and the policy rationale behind guilty plea discounts applies. Your decision to plead guilty to serious charges of the kind which you faced would always have been difficult matter and you are entitled to credit for that.
[52] I consider a discount of 15 per cent is appropriate which results in an end sentence in the order of 14 years and six months imprisonment.
The appropriate MPI
[54] The imposition of what is known as an ‘MPI’ is governed by s 86 of the
Sentencing Act 2002.
[55] In order to impose an MPI, the Court must be satisfied that the eligibility date for parole will not sufficiently satisfy the need to:
· hold the offender accountable for harm caused;
· to denounce the conduct in which the offender was involved;
·to deter the offender or others from future commission of similar offending; and
· finally in protecting the community.
[56] In imposing an MPI, the Court must have regard to its duration, taking into account the purposes and principles of sentencing and any aggravating or mitigating factors,19 and it must be careful not to double count those factors in setting the applicable MPI.20 It must not exceed the lesser of two thirds of the end sentence, or
10 years.21
[57] I consider there must be an MPI in this case, given the seriousness of your offending, and the corresponding need to denounce and deter you and others, in order to protect the public from what I call the scourge of drug importation. The Crown contends that a conventional MPI of 50 per cent of the end sentence is warranted, and to some extent Mr Starling accepts that an MPI is inevitable.
Appellate authority establishes that principle.
19 R v Nguyen [2009] NZCA 239 at [33] – [34].
20 R v Gordon [2009] NZCA 145 at [46].
21 Sentencing Act 2002, s86(4).
[58] In R v Tshisa, referred to earlier, an MPI of six and half years, representing
50 per cent of the end sentence of 13 years imprisonment, was imposed and not disturbed on appeal. Agwu v R also involved an MPI of eight and half years being
50 per cent of the end sentence of 17 years imprisonment. The Court of Appeal referred to the MPI in the following terms:
[12] We consider there was no error by the Judge in imposing the MPI. A MPI is common for importing class A drugs of this scale even for a first offender…[t]he MPI here was set at 50 per cent of the sentence. That was orthodox.
[59] These cases demonstrate that the MPI is reached with regard to the quantity of drugs involved and the role of the offender in the operation. In my view, the present case exhibits circumstances which clearly warrant an MPI. I am not persuaded, nor was this advocated, that it should be more than 50 per cent, but it should be 50 per cent.
[60] I therefore intend to impose an MPI of seven years, being a little less of the
50 per cent of the end sentence I have imposed.
Conclusion
[61] Mr Dixon, I ask you to stand.
[62] On the charge of importing a Class A drug, namely cocaine, you are sentenced to 14 years six months imprisonment.
[63] On the four charges of supplying, and the charge of offering to supply, a Class A drug, namely cocaine, you are sentenced to three years imprisonment, those sentences to be served concurrently.
[64] On the charge of failing to provide a password, you are sentenced to
one month imprisonment to be served concurrently.
[65] A minimum non-parole period of seven years is to apply in respect of your offending.
[66] Now that is the end of the formal sentence but for the destruction of material but in the context of possible appeals it would be inappropriate to order the destruction of what might be evidence.
[67] I am prepared to make an order for destruction of cell phones, scales and containers associated with the purchase, arrangement of sale of the Class A drug cocaine, and the forfeiture of USD$10,000 on the basis that that would not be operative until such time as there is final disposition of the prosecution and any appeal. I make an order as I have just read to the Court. Otherwise that application is adjourned pending final disposition.
[68] Please stand down Mr Dixon.
[69] I formally record the entry of convictions following the pleas of guilty.
……………………………………………
Nicholas Davidson J
Solicitors:
(Crown Solicitor’s Office) Raymond Donnelly & Co, Christchurch
Michael Starling Barrister, Christchurch
Betterlaw, Christchurch