R v Ghasemi

[2012] NZHC 2180

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-11207 [2012] NZHC 2180

THE QUEEN

v

YASHAR GHASEMI

Charges:         Possession of methamphetamine for the purpose of supply x1

Supplying methamphetamine x1

Plea:               Guilty

Hearing:         28 August 2012

Counsel:         B Tantrum for the Crown

D Jones QC for the Prisoner

Sentenced:     28 August 2012

Possession    of    methamphetamine    –    9½    years’    imprisonment.

Minimum non-parole period of three years nine months.

Supply  of  methamphetamine  –  5  years’ imprisonment  concurrent. Total:  9 years 6 months’ imprisonment

SENTENCING NOTES OF VENNING J

Solicitors:      Crown Solicitors, PO Box 2213, Auckland 1140

Counsel:       D Jones QC, PO Box 1750, Auckland 1140.

R V GHASEMI HC AK CRI-2011-404-11207 [28 August 2012]

[1]      Yashar Ghasemi, you are before the Court for sentence having pleaded guilty to one count of possession of methamphetamine for the purpose of supply and one charge of supplying methamphetamine.  Both charges carry the maximum penalty of life imprisonment.

[2]      Your offending came to light following the interception at the New Zealand border of a co-accused, Mr Tyniec, on 15 April 2011.  Customs found Mr Tyniec had sought, tried to bring methamphetamine weighing approximately 1.911 kilograms into New Zealand.   Mr Tyniec agreed to co-operate with New Zealand law enforcement authorities.  As a result a controlled delivery of the methamphetamine was commenced.

[3]      After contact with another co-accused, Mr Nouri, on 19 April, Mr Tyniec received a phone call from you Mr Ghasemi.  You told Mr Tyniec to go down to the reception area of the hotel he was staying in, to order a taxi, and to go to the Countdown supermarket on the corner of Quay Street and Tangihua Street.  At this stage a small amount of the imported methamphetamine and a large amount of the substituted placebo was in a bag together with a covert electronic tracking device.

[4]      Shortly  afterwards,  Mr  Tyniec  passed  the  bag,  containing  the  drugs  and placebo to you.  In exchange you gave Mr Tyniec $1,000 in cash.  You then returned to your apartment in the Stadium Waldorf Apartments, Beach Road, with the drugs and placebo.   There you discovered the methamphetamine that you expected to receive was in fact rock salt.

[5]      Customs were able to confirm that the tracking device with the drugs was physically located in the room occupied by you at Waldorf Apartments in Beach Road.

[6]      Later that same morning Customs identified that the tracking device was then in a car outside the Mercure Hotel in Customs Street.  That car was identified as a Toyota Corolla bearing the registration plate which confirmed registration of the car to you.

[7]      Shortly afterwards, Mr Tyniec went downstairs from the hotel and got into the Toyota car with you.   You took him back to your address at the Waldorf Apartments.   You  told  Mr Tyniec  you  wanted  your  $1,000  back  and  you  then returned Mr Tyniec to his hotel.

[8]      From 18 April on, the police monitored your communications.  As a result of those  intercepted  communications,  the  police  intercepted  a  call  on  2 June  2011 between you and an unknown male referred to as ‘Habibi’.   In the conversation Habibi arranged to purchase methamphetamine from you.

[9]      On 3 June, you met Habibi at Countdown, Quay Street where you supplied a David Mafi with 13.1 grams of methamphetamine.  Mr Mafi’s vehicle was followed by the police, stopped and it was found that he had 13.1 grams of methamphetamine in the car.

[10]     Mr Ghasemi you are of Iranian ethnicity.  You obtained refugee status after coming  to  New  Zealand  in  2004.    Two  of  your  brothers  have  subsequently immigrated here and are supportive of you.  At the time of your offending you were approximately  31  years.    You  are  now  33.    You  have  no  previous  relevant convictions.  You have trained as a chef but have also worked in construction and painting.   The probation officer who spoke to you for the preparation of a pre- sentence report notes you have taken full responsibility for your actions and have made a frank admission of regret and fault.  You say you were very sorry for what you have done and that it has been the biggest mistake of your life.   You accept imprisonment is inevitable but have expressed your desire to make the most of your time  in  prison  by  continuing  with  education  and  other  programmes.    You  are assessed as being at a low risk of re-offending.

[11]     I take as the lead offence for your sentence the charge of possession of 1.9 kilograms of methamphetamine for supply.

[12]     The starting point for consideration for the appropriate sentence is the Court of Appeal decision in Fatu.[1]   The offending in the present case falls into band 4.  At

your sentence indication hearing I indicated that I considered a starting point of 13½ years to be appropriate to reflect the extent of your involvement in the offending and the additional charge.

[1] R v Fatu [2006] 2 NZLR 72.

[13]     I am satisfied that remains appropriate.  I have considered your co-accused Mr Tyniec’s sentencing notes and also the cases of Li,[2] Huang,[3] and Laurenson[4] that I referred to at the sentence indication hearing.

[2] R v Li HC Auckland CRI-2006-019-8458, 25 August 2009.

[3] R v Huang [2008] NZCA 46.

[4] R v Laurenson HC Wellington CRI-2011-085-1797, 17 August 2011.

[14]     There are no personal aggravating factors.   In terms of personal mitigating factors Mr Jones has referred to the positive features in the pre-sentence report and in his written submissions submits a further discount is appropriate to recognise the difficulty you will have of serving a prison sentence in a foreign country.  Against that of course you have been granted refugee status to live in New Zealand and you do, as I have said, have the support of your brothers.  Most significant in my view is your genuine remorse for your offending and the other positive features identified in the pre-sentence report, including your attitude towards the future.   To recognise those positive personal factors and to take account of the period of time you were on electronically monitored bail I consider a reduction of nine months to be appropriate. That reduces the sentence to 12 years nine months before consideration of the guilty plea.

[15]     Counsel are agreed a full discount of 25 per cent is appropriate for the guilty plea and I do not disagree.  That leads to an end sentence of nine and a half years’ imprisonment.

[16]     I am then required to consider whether a minimum non-parole period should be imposed in the circumstances.   I have reviewed the file despite the earlier indication.    I remain  satisfied  a  minimum  non-parole  period  is  required.   Your offending involved a substantial amount of methamphetamine.   Even taking into account your limited role, as I said at the sentencing indication the role you played was still an important one.  There is also the additional charge to be considered.  In

the circumstances I do not consider the standard minimum non-parole period to be

sufficient to address the principles and purposes of the Sentencing Act in your case. But I accept that the positive features I have referred to support moderation of any uplift to that minimum non-parole period.  In those circumstances I fix the minimum non-parole period at close to the 40 per cent indicated at the sentencing indication hearing.

[17]     Mr Ghasemi please stand.  On the charge of possession of methamphetamine for supply you are sentenced to imprisonment for nine and a half years.  You are to serve a minimum non-parole period of three years nine months.  On the charge of supply of methamphetamine you are sentenced to five years’ imprisonment.   That sentence is concurrent. The effective sentence is nine years six months.

[18]     You are formally discharged in relation to counts 1, 2, 5, 6, 7, 10 and 15 in the indictment before the Court. You may stand down.

Venning J