R v Ferreira-Sampaio

[2024] NZHC 1178

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2022-012-001484

[2024] NZHC 1178

THE KING

v

CARLOS DAVIDE FERREIRA-SAMPAIO

Hearing:

9 May 2024

Appearances:

R D Smith for Crown

R M Mansfield KC and H R Smith for Defendant (via AVL)

Judgment:

9 May 2024

SENTENCING NOTES OF EATON J

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

R v FERREIRA-SAMPAIO [2024] NZHC 1178 [9 May 2024]

Introduction

[1]    Carlos Davide Ferreira-Sampaio, you appear for sentencing, having pleaded guilty to a charge of attempting to take possession of a Class A controlled drug (cocaine)  for the  purpose of supply.1  The maximum  penalty  for  that  offence is  10 years’ imprisonment.

[2]    Your guilty plea was entered on 27 February 2024, immediately following a sentence indication.

Facts

[3]    Although the facts are well known to you and have been addressed before both very briefly at your sentence indication hearing and fully at the sentencing of your co-defendant, Matthew Hodder,2 it is necessary that I summarise the factual basis upon which you are to be sentenced.

[4]    On 2 August 2022, a ship, the Spirit of Auckland (sailing under the flag of the United Kingdom), was passing through the United States and had further stops planned in Australia and New Zealand. While transiting through a port in Philadelphia, a local law enforcement agency located and removed two large duffle bags secured within an intake grate on the exterior starboard side of the ship’s hull. Those bags contained 91 kilograms of cocaine, worth up to NZD $27 million if sold in New Zealand. The ship left Philadelphia not long after the cocaine was seized by authorities.

[5]    On 31 August 2022, you travelled from your home nation of Portugal to Melbourne, Australia. Those who engaged you believed the cocaine was still attached to the ship. You were tasked with facilitating the retrieval of the cocaine. You conducted reconnaissance on the port of Melbourne which included analysing security measures and identifying possible launch points for a recovery. You were acting as the intermediary for the overseas importers of the drug who were overseeing the operation. It was you who engaged your co-defendant, Mr Hodder, who was tasked

1      Misuse of Drugs Act 1975, s 6(1)(f) and (2); and Crimes Act 1961, s 311.

2      R v Hodder [2024] NZHC 459.

with providing physical assistance with the retrieval. He was not aware of the specific contents of the duffle bags but appreciated the contents were likely illegal and were of significant value.

[6]    On 6 September, Mr Hodder and an associate went scuba diving from a launch point you had  identified  in  preparation  for  the  ship’s  arrival.  On  8 September Mr Hodder and two associates launched a small boat from that same point to further test the equipment but they were stopped by Australian authorities when they returned to dock. The attempted retrieval at Port Melbourne was then aborted. The Spirit of Auckland left Melbourne for Port Chalmers in Dunedin. A new plan was then hatched for the retrieval of the drugs.

[7]    On 13 September, you flew from Melbourne to Queenstown with Mr Hodder. You did not associate with one another on the flight or at the airport, but upon arrival in Queenstown, you met up, rented a vehicle, and travelled together to Dunedin before renting accommodation at a local motel.

[8]    Over 15 and 16 September, the two of you made multiple visits to dive equipment and outdoor supply stores. You purchased scuba diving equipment and hired air tanks, spending over $4,000 in cash at one store.

[9]    On 16 September you travelled to Port Chalmers and scoped out the shipping berth. The Spirit of Auckland was scheduled to dock at Port Chalmers on the morning of 17 September.  Unbeknownst to you and Mr Hodder,  shortly after midnight on  16 September, the police had installed a listening device in your rental vehicle.

[10]   At 3:13 am on the morning of 17 September, you and Mr Hodder travelled to the port and parked your vehicle in a location that overlooked the shipping channel. Mr Hodder changed into his diving gear and entered the restricted dock area where he hid under the dock. Mr Ferreira-Sampaio, you remained with the rental vehicle and maintained radio communication with Mr Hodder.

[11]   The ship ultimately berthed at the port. It was tied off and the engines shut down. Mr Hodder swam to the starboard side of the ship and performed numerous

dives to the intake grate in search of the product. Unable to find the bags, he surfaced and swam around the stern of the ship. He was seen in the water by Port Otago staff and was observed by the police who were conducting direct surveillance of both of you. Mr Hodder eventually swam to shore where he met with you and confirmed that he could not locate the product. Mr Ferreira-Sampaio, you then made contact with others overseas who were involved in this importation in order to seek clarification as to where exactly the product was affixed to the ship. You asked for a video of where and how the product had been affixed. These communications were intercepted by the police. On receipt of further information, you and Mr Hodder discussed a second attempt to retrieve the product but ultimately elected not to do so. Instead, you returned to Dunedin.

[12]On arrival in central Dunedin, you were both arrested by police.

[13]The summary of facts records that the average price per kilogram of cocaine is

$180,000, giving a value to the attempted importation of $16.38 million. At what is described as the maximum price of $300,000 per kilogram, the cocaine could achieve potential sales of $27 million.

Sentence Indication

[14]   The sentence indication I gave you was a starting point of eight years’ imprisonment and a 20 per cent deduction to reflect your guilty plea. I acknowledged that further credits to reflect any personal considerations might be available.

Pre-sentence report

[15]   I have a pre-sentence report that describes how you came to be involved in this offending, stemming from your need to repay a gambling debt. It otherwise describes your personal background as you have since set out in an affidavit, to which I will refer shortly.

[16]   The pre-sentence report refers to your history of alcohol consumption and gambling. It considers that the risk of harm to yourself and your family posed by those habits pre-2021 would have been moderate to high, but that given the sustained period

of abstinence both before and since your remand in custody, the report does not recommend your participation in programmes to address harmful alcohol use or gambling.

[17]   Nevertheless, you have taken positive measures, and you have indicated your willingness to participate in such programmes if recommended within the prison.

Approach to sentencing

[18]   In determining the appropriate sentence for your offending, I must have regard to the purposes and principles of the Sentencing Act 2002. Of particular relevance, is the need to hold you accountable for your offending, to denounce your conduct and to deter you and others from committing similar offences. The particularly relevant sentencing principles that I must take into account include the seriousness of the offence; your personal culpability; the desirability of consistency for sentencing with other offending; and the requirement that the Court impose the least restrictive outcome that is appropriate in all the circumstances.

[19]   The first step in fixing a sentence is to establish a starting point and that means identifying the aggravating and mitigating features of your offending and looking at other cases that have involved similar offending. And of course, of particular relevance in this case is my sentencing of your co-defendant, Mr Matthew Hodder.

[20]   Having fixed a starting point, I will then take into account any personal circumstances including your guilty plea and the other matters raised by Mr Smith on your behalf.

Submissions

[21]   I have considered the written submissions that were filed in advance of the sentence indication  hearing  by  Mr  R  Smith  on  behalf  of  the  Crown  and  by  Mr Mansfield KC and Mr H Smith, on your behalf, including a memorandum that was filed on 9 May in relation to your personal circumstances. I understand all counsel

agree that the R v Hodder decision addresses the relevant principles and the relevant authorities.3

Crown submissions

[22]   Mr R Smith. on behalf of the Crown, acknowledges there is not a guideline decision for offending involving cocaine and that there are a very limited number of cases dealing with an attempt to take possession of cocaine for the purpose of supply.

[23]   He submits the guideline provided in Zhang v R, including its use of quantity bands and reference to role of offenders, can be used as a check in cocaine cases, though with a slightly reduced comparative starting point.4

[24]   Given the quantity of cocaine involved in this case, Mr Smith, for the Crown, submits your offending would be placed squarely within band five of Zhang, leading to a starting point of between 10 years and life imprisonment if you had been convicted of a complete offence. Accepting that band must be adjusted to reflect the maximum sentence you face of 10 years’ imprisonment, Mr Smith suggests a recalibrated band five of Zhang of seven to 10 years’ imprisonment.

[25]   He submits your role falls above that of Mr Hodder, and squarely within what is described in Zhang as the significant role. In particular, he highlights that you travelled from Portugal to Australia and then New Zealand to oversee the collection of the cocaine, that it was you who enlisted Mr Hodder to assist, that you were the one communicating with those further up the chain of command and therefore must have known you were seeking to possess a very significant quantity of cocaine.

[26]   Counsel referred to a number of cases of offending involving the importation and possession of substantial amounts of cocaine:

(a)R v Cook:5 35 kilograms of cocaine was found inside a sculpture. Two men were charged. The more culpable offender was assessed as having

3      R v Hodder, above n 2.

4      Zhang v R [2019] NZCA 507, [2017] 3 NZLR 648; and Cavallo v R [2022] NZCA 276, (2022) 30

CRNZ 726.

5      R v Cook [2017] NZHC 2034.

a mid to low-level significant role and starting points of 20 and 19 years were adopted respectively. The less culpable offender’s starting point, who had been the “hired help” for the syndicate in the operation and provided practical and logistical support, was reduced to 17 years by the Court of Appeal.6

(b)Cavallo v R:7 46 kilograms of cocaine was imported by Mr Cavallo and 76 kilograms by two other offenders. Mr Cavallo’s role was assessed as high-level significant, and a starting point of 20 years and 10 months was adopted. One of the other offenders was assessed as having had a leading role with an accompanying starting point of 27 years and six months.

(c)Yonkwa-Dingom v R:8 The appellant’s role was described as comfortably significant role for offending involving the importation of

23.7 kilograms of cocaine. A starting point of 15 years’ imprisonment was adopted.

(d)Agwu v R:9 Mr Agwu had a leading role, as the head of the operation, in the importation and supply of 4.5 kilograms of cocaine. A starting point of 18 years was adopted.

(e)de Macedo v R:10 Mr de Macedo fell into a lesser role and was purely a courier in the importation of around 2.4 kilograms of cocaine. An 11-year starting point was adopted.

[27]   Mr Smith advances two cases dealing specifically with attempts to import or possess Class A drugs, albeit acknowledging that they are of limited relevance.  In   R v Anchondo, a starting point of five years and six months’ imprisonment was adopted on a charge of attempting to take possession of five kilograms of cocaine for

6      Cook v R [2020] NZCA 469.

7      Cavallo v R, above n 4..

8      Yonkwa-Dingom v R [2021] NZCA 603.

9      Agwu v R [2015] NZCA 619.

10     de Macedo v R [2020] NZCA 132.

the purpose of supply.11 In that case, the defendant’s role was described as being a “custodian courier”.12 In Smith v Police, a five-year starting point was adopted in relation to two charges of attempting to import firstly 80 and then 760 tabs of LSD.13

[28]   With reference to the seven-year starting point that I adopted for Mr Hodder’s offending, Mr Smith, for the Crown, submits that a starting point of about eight years’ imprisonment is appropriate to reflect your culpability.

Defendant’s submissions

[29]   Mr Mansfield, in his written submissions, supported by Mr H Smith in his oral submissions this morning, acknowledges the quantity of drugs you attempted to possess clearly places this offending within band five of Zhang. Your counsel submits an adjusted band five might be five to 10 years imprisonment.

[30]   The primary submission made on your behalf as regards the starting point is that there is no  material  difference  between  the  roles  played  by  yourself  and  Mr Hodder. Mr Mansfield, in his written submissions, described you both as being effectively “catchers”.

[31]   In response to the cases advanced by the Crown, Mr Mansfield says that in the Cook decision the defendant was significantly more involved in the unlawful operation and more connected to those further up the chain. He describes your case as having more similarities to that of de Macedo and Anchondo. He stresses that this operation was being facilitated at the direction of persons far more senior than you in the chain of command. He urges a starting point of seven to seven and a half years’ imprisonment.

11     R v Anchondo [2018] NZHC 1978.

12 At [16].

13     Smith v Police [2018] NZHC 878.

Analysis

[32]   Mr Ferreira-Sampaio, the sentence indication I gave of eight years’ imprisonment is confirmed. In sentencing Mr Hodder, I reviewed the relevant authorities and I adopt that review.

[33]   By way of summary, I referred in Hodder to the Court of Appeal decision in Cavallo v R that confirmed the guidelines in Zhang can appropriately be used as a cross-check in cases involving cocaine albeit with starting points slightly adjusted downwards to reflect the reduced harm arising from cocaine.14 That is not to say there is still not significant harm to the community as a result of the use of the illicit drug, cocaine.

[34]   It is appropriate to fix your starting point by reference both to the quantity of drug involved and the role you played, as is the approach taken in relation to other Class A drug offending.

[35]   There can be no doubt that the quantity of drugs you sought to possess is the most significant aggravating feature of your offending. The offending also involved a high degree of planning.

[36]   There is no doubt this offending falls within band five of Zhang. I agree that band must be adjusted downwards to reflect the maximum penalty you face is one of 10 years’ imprisonment. As I have indicated, Mr R Smith would reformulate band five of Zhang as a range of seven to 10 years’ imprisonment. Mr Mansfield submits that ought to be five to 10 years’ imprisonment.

[37]   A strict application of the principle that the penalty for an attempt should be no more than half of the maximum punishment to which a defendant would have been liable had the full offence been committed, would lead to a  band  range  of five  to 10 years’ imprisonment as band five of Zhang. I consider a band range that encompasses five years of a maximum of 10 years to be unhelpfully broad in fixing a starting point. I prefer a slightly narrower band which I would fix as six to 10 years.

14     R v Hodder, above n 2, at [77], citing Cavallo v R, above n 4, at [63].

That issue is really moot in your case, because whatever the appropriately reformulated band five, the quantity of drug involved in your offending would lead to a starting point at the higher end of band five.

[38]   I have considered the cases involving an attempt to import a Class A drug. They are few and far between. As you have heard, both the cases referred to involved attempts to import significant lesser quantities of a Class A drug and they resulted in starting points of five and five and a half years’ imprisonment. Other than those cases and the Cook decision, the other cases I have been referred to, I agree with your counsel, that other than confirming the quantity of drugs in this case is very substantial, they are otherwise of little assistance.

[39]   Placing an offender into  one  of  the  three  role  categories  set  by  the  Court of Appeal in Zhang and confirmed by the Supreme Court in Berkland v R is not an easy exercise.15 I remind myself that the Court of Appeal in Zhang observed that the role categories are a tool to aid evaluation, they are not a straitjacket for a sentencing court.16

[40]   The Supreme Court in Berkland described the essential characteristic of the role of a significant player is that they are important enablers in the chain who take their orders from leaders.17 The Court in Berkland observed that purely operational functions will not usually place an offender at the upper end of the significant role unless they exercise a higher degree of autonomy in the performance of functions that are significant to the operation or there is some distinctive element of the operational style justifying its placement at the upper end.18 The Court described those falling within the middle and lower end of the significant range as unlikely to be exercising managerial functions or having real autonomy in the performance of their functions.19

[41]As regards reward from the criminal enterprise, the Court in Berkland

considered that financial gain rather than commercial profit is the appropriate

15     Zhang v R, above n 4, at [115]; and Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [63]- [71].

16     Zhang v R, above n 4, at [120], and reiterated in Berkland v R, above n 15, at [65].

17     Berkland v R, above n 15, at [67].

18 At [68].

19 At [69].

descriptor of a significant player.20 Therefore, somebody in the middle to lower range of a significant role is typically required to carry a greater share of the risks than the reward justifies.21 And I am sure that applied in your case.

[42]   At the sentence indication I assessed your role to fall above that of Mr Hodder and to fall squarely within the significant category. The key factors I identify as critical to your role classification are these:

(a)First, on my assessment, the sole purpose of your travelling to Australia and then to New Zealand was to oversee the retrieval of the cocaine. That indicates to me a commitment to your role and accordingly a responsibility within this operation that was at a higher level than that of Mr Hodder. You were trusted by those further up the chain to oversee the retrieval of a very substantial importation.

(b)Secondly, on my assessment, you effectively managed the retrieval operation, including the recruitment of Mr Hodder and the essential reconnaissance   and   planning   that   went   on,   both    at    the    Port of Melbourne and then the Port of Otago.

(c)Thirdly, unlike Mr Hodder, you had a direct line to those higher up in the enterprise.

(d)Fourthly, you were motivated by the promise of financial reward.

[43]   Mr Ferreira-Sampaio, I accept you were far from the top of this enterprise. You were acting at all times on instructions, acting on behalf of others, persons who have not been identified, but the reality is this was the attempted possession of 91 kilograms of cocaine with a very high street value.

20     Berkland v R, above n 15, at [70].

21 At [70].

[44]   When I stand back and assess that quantity of drug against the role you played, which I accept is falls within the significant category, I confirm the appropriate starting point in my view is one of eight years’ imprisonment.

Guilty plea credit

[45]You are entitled to a credit for your guilty plea.

[46]   Although your plea was entered about 18 months after you were first arrested, and the evidence against you was always strong, I accept a deduction at the higher end of the range is appropriate. I fix that at 20 per cent, being the same credit that was given to Mr Hodder.

Further personal considerations

[47]   Mr H Smith on your behalf, seeks further deductions beyond that applied to reflect your guilty plea. He submits further deductions are appropriate to reflect your personal considerations.

[48]   In support counsel relies on an affidavit that you had sworn on 9 May addressing your personal background, your handwritten letter to the Court, and letters of support from your brother, your brother-in-law and the mother of your children. I have also seen a certificate confirming that while on remand you have completed the AOD and wellbeing short remand programme.

[49]   In your affidavit you explain that following a childhood surrounded by loving parents and grandparents, you have continued to enjoy a close relationship with family, and particularly with your brother. You did well at school and on completing your secondary school education, mandatory conscription meant you joined the army. While on temporary leave from the army, you obtained a Masters Degree in Geography and Territory Management. You then re-joined the army. You became a member of the Special Forces Paratroopers Unit. You were deployed to serve under NATO in Bosnia and Herzegovina, Kosovo and then East Timor.

[50]   Whilst serving, I accept you were confronted by many atrocities and having completed your deployment in East Timor, you were diagnosed with post-traumatic stress disorder (PTSD). An issue was raised during the course of argument as to the absence of corroborative evidence of the PTSD diagnosis, but having read your affidavit, your letter, and the supporting letters from your family, I do not doubt the formal diagnosis made in relation to your mental health. I accept the difficulties inherent in you being incarcerated on the other side of the world explain the failure to provide corroborative evidence.

[51]   Having been diagnosed with PTSD, you were transferred to an instructor role within the army before you ultimately retired as a First Sergeant.

[52]   After that you met your wife, with whom you have two daughters, now aged 18 and 13. With your wife you opened restaurants both in Portugal and in Spain and you felt well enough in that period to cease taking your prescribed medication.

[53]   Regrettably, like so many worldwide, you then fell victim to the COVID-19 pandemic. Your restaurants did not survive. That in turn led to an escalation in your drinking, to you playing poker and gambling with friends. That perhaps inevitably gave rise to a gambling debt. It was that debt and the significant accumulating interest that ultimately gave rise to an invitation from others for you to travel to Australia, and to the offending to which you have pleaded guilty.

[54]   Within the history as you have outlined in the material that has been filed you have never named any persons involved in this criminal operation.

[55]   You are fortunate to retain the love and support of your family. A common theme in their supporting letters is that you are a family-oriented man, someone who is hard working and caring for others. Your family are naturally worried for your wellbeing, you being incarcerated on the other side of the world. They are encouraging and supportive of your ongoing rehabilitation and ultimately your reintegration back into society.

[56]   Mr H Smith submits that your personal circumstances warrant discrete recognition under the umbrella headings of general background circumstances, rehabilitative efforts, remorse and the difficulties that you will face in prison as a foreign national.

[57]   I accept that through your guilty plea, your affidavit and your letter, you do demonstrate a level of remorse that is worthy of recognition. You acknowledge the distress and shame you have brought on your family and the potential harm your offending, if it had been successful, would have imposed on so many communities within New Zealand.

[58]   Further, the Court recognises that isolation from family, and I am talking about face-to-face contact with family, because I assume you have telephone contact with your family (Mr Ferreira-Sampaio nods in agreement), for persons who are not residents of New Zealand and are imprisoned in this country may be treated as a mitigating factor where it makes the sentence harder than usual to bear.22 That is a matter for the discretion of the sentencing Judge.23 I accept your isolation from your family in Portugal will make your sentence harder to bear. You, of course, are fluent in English so the harshness of not being able to speak the English language does not arise. I have reviewed the cases in relation to harshness for a foreign national being sentenced to imprisonment in New Zealand, and I agree that a small discrete discount is appropriate to recognise the challenge that you will face.24

[59]   I am not persuaded that there is any strong causal connection between your past and, particularly, your mental illness, and your offending. Rather, as with many persons in the hospitality industry, your personal crisis was financial and largely a consequence of the COVID-19 pandemic. However, I do acknowledge that there were mental health issues giving rise to gambling and alcohol issues that have a connection to your offending.

22     For example, R v Yung [2017] NZHC 895 at [6]; and R v Yuen [2016] NZHC 571 at [15].

23     Zhang v R, above n 4, at [163].

24     Chan v R [2020] NZCA 486 at [24]; and R v Thai [2021] NZHC 1006 at [41].

[60]   I agree with you, Mr Ferreira-Sampaio, it is unlikely you will be assessed as somebody who has an underlying gambling or alcohol addiction, given you have abstained from both of those habits now for some years. But you have acknowledged that if it is considered appropriate, you will engage in further programmes within the prison to address those issues. And you have, as I have recognised, already completed a wellbeing programme. So, I have no doubt that you are going to use your time in a New Zealand prison constructively to ensure that when you are ultimately released that you will break free from whatever shackles that led to this offending.

[61]   Accumulating those personal factors and recognising that a small discount is appropriate to reflect each of the three particular factors I have identified, I fix a total further deduction of 15 per cent, leading to a total deduction from your starting point of 35 per cent.

Observation

[62]   As I said to Mr Hodder when I sentenced him, Mr Ferreira-Sampaio, and I may have said it you at the sentence indication, you will, no doubt, if you have not already then in the passage of time, thank your lucky stars that the agencies in Philadelphia had removed the drugs from this vessel. My assessment is that if the drugs had been successfully imported into New Zealand, the starting point for your offending would have been in the range of 25 years’ imprisonment.

Forfeiture orders

[63]   The Crown seek an order for forfeiture of the diving equipment, electronic devices and cash that was found in the possession of both you and Mr Hodder on arrest. You have no objection to those orders being made. Mr Hodder had no objection. I did not make any final order at Mr Hodder’s sentencing, to preserve your position. I now make final forfeiture orders as sought by the Crown.

Result

[64]Mr Ferreira-Sampaio, will you please stand.

[65]   On the charge of attempting to possess a Class A controlled drug, namely cocaine, for the purpose of supply you are sentenced to five years and two months’ imprisonment. You may stand down.

...................................................

Eaton J

Solicitors:
RPB Law, Dunedin

Counsel:
R M Mansfield KC, Auckland