R v Hodder
[2024] NZHC 459
•28 February 2024
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2022-012-1483
[2024] NZHC 459
THE KING v
MATTHEW LUKE HODDER
Hearing: 28 February 2024 Appearances:
C E R Power for Crown
P K Hamlin and S J R Baird for Defendant
Judgment:
28 February 2024
SENTENCING REMARKS 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 MATTHEW LUKE HODDER [2024] NZHC 459 [28 February 2024]
Introduction
[1] Matthew Luke Hodder, you appear for sentencing, having entered a guilty plea 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 ten years’ imprisonment.
[2] You pleaded guilty to that charge on 15 December 2023, shortly following a sentence indication I gave on 12 December 2023.
Background facts
[3] I set out the facts relevant to the charge to which you have pleaded guilty in the sentence indication.2 Rather than repeat those in full here, the sentence indication notes will be attached to, and form part of these remarks.
[4] To summarize, you and a co-defendant attempted to recover from the hull of a vessel berthed at the Port of Dunedin, two large duffel bags that had, prior to the intervention of the law enforcement agencies in Philadelphia, United States of America, contained 91 kilograms of cocaine, worth up to $27 million if sold in New Zealand. With your co-defendant you had flown from Melbourne to Queenstown, and then driven to Dunedin, after the initial plan to retrieve those duffel bags in the Port of Melbourne, in your home city, had been aborted.
[5] In the small hours of 17 September 2022, you changed into your diving gear, you entered the water at the Port of Dunedin, and you set out to recover the two bags. Despite your best endeavours, the bags could not be located. You returned to shore, your co-defendant sought clarification from those within the criminal enterprise who had direct knowledge as to where the drugs had been secured to the vessel and, with your co-defendant, you then returned to central Dunedin, intent on a later attempt to recover the bags. Unbeknownst to you and your co-defendant, all your movements
1 Misuse of Drugs Act 1975, s 6(1)(f) and (2); and Crimes Act 1961, s 311. Maximum penalty 10 years’ imprisonment.
2 R v Hodder [2023] NZHC 3715.
and communications were being surveilled by police and you were arrested in central Dunedin.
The sentence indication
[6] In my sentence indication, having considered a number of cases that had been referred to me by Crown counsel and your counsel, Mr Hamlin, I adopted a starting point of seven years’ imprisonment.3 That is the starting point I adopt today.
[7] Generally, my observation in relation to your offending is this. By any measure this was very serious drug trafficking. If the attempt to possess the 91 kilograms of cocaine had been successful, you would have been facing a starting point of excess of 25 years’ imprisonment. The harm such an importation would have had on the community is immense. One indication of the consequences and suffering of Class A drug dealing is the New Zealand Drug Harm Index which is compiled by the National Drug Intelligence Bureau.4 It indicates that the total social harm costs associated with cocaine in 2020 were almost $300,000 per kilogram.
[8] In the sentence indication, I indicated I would allow a discount for your guilty plea of 20 per cent.5 That reduced the sentence by one year and five months. I accepted there may be other factors personal to you that would justify a further deduction at sentencing.
Further submissions
[9] Mr Hamlin on your behalf has filed further submissions addressing factors personal to you. With his submissions he has filed a number of reports. I have read and considered a pre-sentence report, a s 27 cultural report, and an AOD clinical assessment report. I have also read letters of support from your partner Adele, her mother, and from your father Barry and his partner.
3 At [30] – [44].
4 McFadden M and Ors, 2022, The New Zealand Illicit Drug Harm Index 2020, Version 1.1, Wellington. See also Zhang v R [2019] NZCA 507 [2019] 3 NZLR 648 [Zhang] at [80].
5 At [45], [46].
[10] With reference to that material, Mr Hamlin submits that you were suffering an extreme addiction and severe mental health issues at the time of your offending and that both factors have had a direct and indirect causal relationship with your offending and justify a further discount of up to 30 per cent. He also proposes an additional discrete discount of 10 per cent to reflect your remorse, previous good character, and your prospects of rehabilitation.
[11] As you have heard, Mr Power for the Crown questions the causal connection between your mental health and your addiction to your offending. He submits the motivation for this offending was purely financial. He proposes a deduction of no more than five per cent should be allowed to reflect your personal background factors, in particular your mental health issues and your addictions. He further proposes a discount of no more than five per cent to recognise your rehabilitative efforts and prospects.
[12] I have read each of the reports and letters that have been filed on your behalf closely. I will summarise and discuss those reports briefly.
Pre-sentence report
[13] The pre-sentence report records your explanation for your involvement in this offending. You say you were approached and offered a job for $50,000 at a time you faced significant financial and mental pressure in the aftermath of COVID and the consequences of a lockdown on your Melbourne based roofing company. You told the report writer you had understood your role in this offending required you to swim to a catamaran and act as security, but you then made further inquiries and told those who you had engaged with that you were “out”. You maintained you were then subject to threats and so reluctantly agreed to carry out a role in accordance with your instructions.
[14] The pre-sentence report records that at the time you offended you were battling an alcohol addiction and that your mental health was compromised. You described your offending as a mistake and, to your credit you described yourself as being grateful for your arrest, believing it has saved your life. You told the report author you were
relatively recently diagnosed with schizophrenia and bipolar disorder, but that currently you are in a much-improved state of health.
Letters in support
[15] The letters I have referred to tell me you enjoy the ongoing support of family, and in particular your father, grandmother, and partner. It seems your family, like you, have seen the present predicament you face as an opportunity to reset relationships.
Alcohol and drug report
[16] The alcohol and drug report tells me that you easily meet the criteria for a diagnosis of alcohol use disorder, and you satisfy some of the criteria for a diagnosis of a moderate cocaine use disorder. The report tells me you were exposed to alcohol from your early teens and were drinking very heavily from aged 20 years. That continued right through until the day of your offending and your subsequent incarceration. Your cocaine use escalated during your employment as a stripper. Cocaine use is described in the report as a “big culture within the nightlife”. The report records you sought assistance from Alcoholics Anonymous in Australia leading to a 10-month period of abstinence from all substances. It refers to your self-report of prior diagnoses of schizophrenia and bipolar disorder, depressive episode, and suicidal ideations.
[17] The report goes on to tell me you meet the criteria for a diagnosis of schizophrenia and bipolar. The principal report writer is an experienced s 27 cultural report writer and has worked as a volunteer within the alcohol and drugs sector for 12 years. The second report writer is described as an alcohol and drug clinician with five years’ experience in that sector working as an operations manager for a residential treatment centre.
[18] As I indicated during the course of oral argument, I did not consider it be within the expertise of those report authors to be making a diagnosis of such serious and complex psychiatric disorders.
[19] During his submissions this morning, Mr Hamlin made available medical notes from what I take is your GP in Victoria. Those notes refer to your long and complex history of mental health issues and a past diagnosis of both schizophrenia and bipolar. I accept that record as evidence of a formal diagnosis. As at the date of the offending, you were not on medications for those illnesses and you remain free of medications, having described your present mental health as very good.
[20] The Court does not have the benefit of any psychiatric reports, that is reports from qualified clinicians with whom you had engaged in Australia. Absent expert guidance I must exercise caution when I consider any causal connections between your mental health and your offending. In my view, it would be rare for the Court to find a mental illness was relevantly severe, and directly causal of serious drug trafficking absent reports from suitable qualified experts.
[21] I nevertheless accept, Mr Hodder, you have suffered from mental health issues over and above your addictions and those issues were part of a very complex factual matrix personal to you that played a role in your offending. As Mr Hamlin highlighted in his oral submissions, the Supreme Court in Berkland said:6
Contributory mental illness can still explain why an offender is living in the chaotic or conflictual circumstances that made the offending more likely. Contributory addiction can help to explain why an offender was drawn into the commercial drug dealing environment. And I certainly take your mental health and addictions into account in that context.
[22] Finally, the alcohol and drug report record your openness to engage in rehabilitative measures and recommends that a comprehensive plan be put in place to assist you upon your release.
Section 27 report
[23] I also have the s 27 report identifying what those report writers consider were likely contributing factors to your offending. That included:
(a) [ ];
6 R v Berkland [2022] NZSC 143 at [109].
(b) [ ];
(c) [ ].
I make a suppression order in relation to those factors given their very personal nature.
[24]It also identified:
(a)childhood neglect;
(b)mental health challenges;
(c)problematic alcohol, cocaine and Valium use;
(d) experience of multiple traumatic events. as other contributing factors.
[25] Each of those factors is traversed in detail in the s 27 report. It is not necessary that I recite the details. No doubt each of those factors feature in your background. It is much more difficult however to assess the connection those factors have with your offending. I observe that quite properly the authors of the s 27 report acknowledged they were not qualified to speak to the relevance of your mental health diagnoses.
[26] One factor the s 27 report does not identify as a factor contributing to your offending is financial distress. That omission is at odds with your explanation advanced at the sentence indication hearing, that you became involved in this offending due to significant financial stress and that your financial vulnerability was then exploited by those higher up within this criminal enterprise. That submission was supported by reference to financial documentation in the form of bank statements.
[27] In my assessment, Mr Hodder, the essential context of your offending was the failure of your roofing business and the associated debt. In my view, and as you have
previously explained, financial stress appears to have the most direct causal connection to your offending. It was undoubtedly your motivation for offending.
[28] However, I acknowledge there were a number of factors that led to your second roofing business failure. They have been outlined in the report and include a physical injury you suffered, the stress of losing a baby, the breakup of a relationship, the suicide of friends and your escalating drug and alcohol addiction. But, as you told the probation officer, COVID was a significant factor in the failure of your roofing business. COVID negatively impacted many thousands of businesses in New Zealand and Australia, as I am sure you are aware, and of course beyond, and that is a factor that was quite independent of your personal background.
[29] I do not doubt that in your childhood, you were exposed to trauma and those experiences have played a part in your alcohol and drug dependency. But, as with the alcohol and drug report, the s 27 report makes it clear that your alcohol and drug consumption escalated after you had commenced employment as a male stripper, a profession in which you excelled and achieved success but one that inevitably involved a lifestyle of “partying” as you have described. On my assessment, your escalating drug addiction was, in large part, a consequence of lifestyle choices rather than negative childhood experiences and exposures. It was your longstanding illicit drug use that would have opened the door for your involvement in this offending. Sustained illicit drug use provides a connection to those who are engaged in the world of drug dealing. But it was your financial woes that led you to your fateful decision to actively engage in what you must have known was a sophisticated, international, high level criminal enterprise.
[30] While, in my assessment the s 27 report has not identified any particular operative or proximate cause of your offending, the Supreme Court in Berkland7 confirmed contributory factors that are not properly described as operative or proximate might still provide rational explanations for why an offender has come to offend and therefore do establish a causative contribution relevant to sentencing. I have read a passage from that case that highlights that point.
7 Berkland v R [2022] NZSC 143 at [109].
[31] I acknowledge that your background played a role in your subsequent addictions and that those addictions had escalated shortly prior to your offending.
[32] As I said to your counsel during the hearing of submissions this morning, in Berkland the Supreme Court was dealing with an offender who exhibited the full suite of criminogenic factors. Mr Berkland had also offered significant evidence of measures towards his rehabilitation. The Supreme Court in that case confirmed a sentence deduction of 10 per cent to reflect Mr Berkland’s background and addiction and allowed a further discount of 10 per cent to reflect his rehabilitative efforts.
[33] Mr Hamlin has submitted your extreme addiction and severe mental health issues have both a direct and indirect causal relationship with your offending and justify a deduction of up to 30 per cent. In my view, Mr Hodder, the relationship of your addiction and mental health to your offending is indirect and limited. As I have said, financial distress was the primary causal factor associated with your offending. But I accept the collapse of your roofing business was no doubt negatively impacted by your mental health and addictions, but your motivation was to secure a significant cash windfall.
[34] There is no evidence to suggest that at the time you agreed to be involved in the offending, you were suffering from psychosis. There is no evidence as to how mental illness might have impacted on your decision to offend other than being a background factor. There is no evidence that at the time you engaged in and carried out this offending you were acting under the influence of drugs. On the contrary, the prolonged and quite challenging tasks you were required to undertake required you to have a clear head.
[35] I fix a total deduction to reflect your background, including your addictions and mental health challenges at 10 per cent.
Remorse, previous good character, support network and rehabilitation
[36] I then turn to deal with the other factors Mr Hamlin describes as being remorse, previous good character, support network and rehabilitation. I deal with those together.
[37] I accept that within both the various reports and your personal letter you do express genuine remorse and a meaningful acknowledgement of responsibility for your offending. You told the s 27 report writer “I have never felt so free in my whole life”. As you recognise, that is a rather ironic assessment, given your incarceration, but to my mind it is an assessment that reflects a very positive and healthy attitude post arrest and detention. I consider your remorse to be worthy of recognition.
[38] I have read the letters of support. You are fortunate to have the ongoing love and support of your partner, her mother, your father and other family and friends in Australia. Those persons have expressed their commitment to doing what they can to support you during the term of your imprisonment in New Zealand and to continue that support when you return to Australia.
[39] Those persons confirm what you have told me through the probation officer and in your own letter that you have seized the opportunity that has arisen from your arrest and detention to confront your demons and endeavour to move past them. Your offending has presented you with an opportunity to develop much stronger bonds with your family.
[40] I acknowledge you have no relevant previous convictions, but that is tempered by the fact that, by your own admission, you have spent many years abusing illicit drugs.
[41] I acknowledge that you have expressed your willingness and intent to engage in rehabilitation both during the term of your sentence and upon your return to Australia. Indeed, you have completed an alcohol and drug and wellbeing short remand programme whilst you have been incarcerated in New Zealand, evidencing your positive intent. I have been provided with a brief email from an administrator of Odyssey House rehabilitation facility based in Victoria confirming your family have made inquiries on your behalf about engaging with that facility upon your return to Australia. Each of the reports I have reviewed acknowledge your positive mindset, your acknowledgement that a positive future for you must engage sobriety, and they record your commitment to change. And of course, the Court encourages you to continue on your path of rehabilitation.
[42]I add one further factor into this pot pourri of further personal factors.
[43] The Court recognises that the isolation from family, and I am talking about face-to-face contact, the denial of family support to persons who are not residents of New Zealand and who are imprisoned in New Zealand may be treated as a mitigating factor where it makes the sentence harder than usual to bear. This is a matter at a discretion of the sentencing Judge.8 I accept the isolation from your family including your partner will make your sentence harder than usual to bear. Balanced against that, there is no foreign language issue and, as residents of Australia, it is not overly burdensome for your family to travel to New Zealand, although they have not been able to do so to see you since you have been incarcerated other than a trip Mr Hamlin told me about where your partner had hoped you might be released on EM bail. I have reviewed the cases on this issue where a small discount has been allowed to recognise similar difficulties.9
[44] What I propose Mr Hodder is to make an allowance of a further 10 per cent to reflect your remorse, your past character, your rehabilitative efforts and prospects, and the difficulties you face in prison in New Zealand.
[45] What that means is from a starting point of seven years’ imprisonment I allow total deductions of 40 per cent and, rounding that sentence down, I arrive at an end sentence of 50 months imprisonment.
Other orders
[46] The Crown seeks an order for forfeiture of the diving equipment, electronic devices and cash found in your possession. You have no objection to those orders being made, although Mr Hamlin will engage with the Crown as to whether all the devices need to be forfeited. Given your co-defendant has entered a not guilty plea. I simply record that you do not oppose forfeiture orders being made in relation to the equipment and the cash. I think it appropriate to defer making final orders until the determination of the prosecution of the co-defendant.
8 Zhang v R, above n 5, at [163].
9 Chan v R [2020] NZCA 486 at [24]; R v Thai, above n 20, at [41].
Result
[47] Mr Hodder, please stand. Matthew Luke Hodder, on the charge of attempting to possess a Class A controlled drug, namely cocaine, for the purposes of supply you are sentenced to four years and two months’ imprisonment. You may stand down.
...................................................
Eaton J
Solicitors:
RPB Law, Dunedin
Counsel:
P K Hamlin, Barrister, Auckland
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE
INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS
PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE
THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KOTI MATUA O AOTEAROA OTEPOTIROHE
CRI-2023-012-1483 [2023] NZHC 3715
NEW ZEALAND POLICE
V
MATTHEW LUKE HODDER
Hearing: Appearances:
Judgment:
12 December 2023
R D Smith for Crown
P K Hamlin for Defendant 12 December 2023
SENTENCING INDICATION 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:
NEW ZEALAND POLICE v HODDER [2023] NZHC 3715 [12 December 2023]
Introduction
[48] Matthew Luke Hodder seeks a sentence indication on a charge of attempting to take possession of a Class A controlled drug (cocaine).10 The maximum penalty is ten years’ imprisonment.
[49] In giving a sentence indication, I will focus on what I consider to be the relevant matters in setting a starting point, if Mr Hodder were to plead guilty to that charge. I will then indicate what discounts I consider to be appropriate on the information currently available.
Facts
[50] First, I will outline the facts upon which I give the indication. The facts are critical in understanding and assessing the appropriate sentence. An agreed summary of facts has been prepared between your counsel and Crown counsel for the purpose of this hearing. I have read that carefully and that is the basis upon which the indication is given.
[51] I observe the summary refers to the alleged involvement of your co-defendant, Mr Ferreira-Sampaio. Whilst for the purpose of this hearing, Mr Hodder agrees to the summary of facts, I acknowledge that Mr Ferreira-Sampaio has not.
[52] 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 $27 million if sold in New Zealand. The ship left Philadelphia not long after the cocaine was seized by the authorities.
10 Misuse of Drugs Act 1975, s 6(1)(f) and (2); and Crimes Act 1961, s 311. Maximum penalty 10 years’ imprisonment.
[53] On 31 August 2022, Mr Ferreira-Sampaio travelled from his home nation of Portugal to Melbourne, believing the cocaine was still attached to the ship. He conducted reconnaissance on the port of Melbourne which included analysing security measures and identifying possible launch points. He acted as the intermediary for the overseas importers of the drug who were overseeing the operation. Mr Hodder was tasked 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.
[54] On 6 September, Mr Hodder and an associate went scuba diving from a launch point Mr Ferreira-Sampaio had identified in preparation for the ship’s arrival. On 8 September Mr Hodder and two associates launched a small boat from the same point to further test the equipment but 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.
[55] On 13 September, Mr Hodder and Mr Ferreira-Sampaio flew from Melbourne to Queenstown. They did not associate with one another on the flight or at the airport, but upon arrival in Queenstown, met up, rented a vehicle, and travelled to Dunedin before renting accommodation at a motel.
[56] Over 15 and 16 September, the defendants made multiple visits to dive equipment and outdoor supply stores. They purchased scuba diving equipment and hired air tanks, spending over $4,000 in cash at one store.
[57] They travelled to Port Chalmers and scoped out the shipping berth on 16 September. The Spirit of Auckland was scheduled to dock at Port Chalmers on the morning of 17 September.
[58] Shortly after midnight on 16 September, police installed a listening device in the defendant’s rental vehicle.
[59] At 3:13 am on the morning of 17 September, both men travelled to the port and parked their 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 remained with the rental vehicle and maintained radio communication with Mr Hodder, including while he was underwater.
[60] 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 it, he then 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 the defendants. Mr Hodder eventually swam to shore where he met with Mr Ferreira-Sampaio and discussed that he could not locate the product. Mr Ferreira-Sampaio then made contact with others overseas who were involved in the importation to seek clarification as to where exactly the product was affixed to the ship. He asked for a video of where and how the product had been affixed. These communications were intercepted by police. On receipt of further information, the defendants discussed a second attempt to retrieve the product but elected not to do so. Instead, they returned to Dunedin. On arrival in central Dunedin, both men were arrested by police.
[61] The summary of facts records that the average price per kilogram of cocaine in New Zealand 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.
Approach to sentencing
[62] In determining the appropriate sentence for your offending, I would have regard to the purposes and principles in the Sentencing Act 2002. They being to hold you accountable for your offending, to denounce that conduct and to deter you and others from committing similar offences. The particularly relevant sentencing principles that will need to be taken into account would include the seriousness of your offence; your culpability; the desirability of consistency for sentencing with other offending; and the requirement the Court impose the least restrictive outcome that is appropriate in all the circumstances.
[63] 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. I will then take into account any personal circumstances including your guilty plea.
Submissions
[64] I will briefly summarise the submissions advanced on behalf of the Crown and your counsel. I have taken into account those submissions in assessing the appropriate starting point.
Crown submissions
[65] Mr Smith acknowledges there is not a guideline decision for offending involving cocaine and a very limited number of cases dealing with an attempt to take possession of cocaine for the purposes of supply. He submits the guideline provided in Zhang v R, including its use of quantity bands and reference to role, can be used as a check in cocaine cases, though with a slightly reduced comparative starting point.11
[66] Given the quantity of cocaine involved in this case, he submits your offending would be placed squarely within band five of Zhang. Therefore, a starting point on the Zhang bands are between ten years and life imprisonment. Adjusting that band to reflect the maximum sentence you face of ten years’ imprisonment; he suggests a reformulation of band five to being one of between seven and ten years’ imprisonment.
[67] As to your role, Mr Smith acknowledges that you were enlisted to retrieve the bags without knowing their specific contents. Mr Smith highlights you did know the contents were likely illegal and had significant value. He highlights you carried out practice dives in Melbourne. You then travelled to Dunedin to attempt retrieval. You were involved in the purchase of dive equipment in Dunedin, being persistent in offering cash when hiring dive tanks. Mr Smith says you must have been aware there was a larger scale to the operation and it involved substantial commercial interest. He
11 Citing Cavallo v R [2022] NZCA 276.
argues your role falls, at least, at the high end of what is described in Zhang as the lesser role.
[68] On that basis, he submits a starting point of about seven years’ imprisonment is appropriate. He has adjusted downwards his assessment as to both your role and the appropriate starting point, having regard to the submissions filed on your behalf and Mr Hamlin.
[69] Mr Smith referred to a number of cases offending involving the importation and possession of substantial amounts of cocaine:
(a)R v Cook:12 35 kg of cocaine was found inside a sculpture. Two men were charged. The more culpable offender was assessed as having 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.13
(b)Cavallo v R:14 46 kg of cocaine was imported by Mr Cavallo and 76 kg 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:15 A comfortably significant role and the importing of 23.7 kg of cocaine yielded a starting point of 15 years’ imprisonment.
(d)Agwu v R:16 Mr Agwu had a leading role, as the head of the operation, in the importation and supply of 4.5 kg of cocaine. A starting point of 18 years was adopted.
12 R v Cook [2017] NZHC 20234.
13 Cook v R [2020] NZCA 469.
14 Cavallo v R [2022] NZCA 276, (2022) 30 CRNZ 726.
15 Yonkwa-Dingom v R [2021] NZCA 603.
16 Agwu v R [2015] NZCA 619.
(e)de Macedo v R:17 Mr de Macedo fell into a lesser role and was purely a courier in the importation of around 2.4 kg of cocaine. An 11-year starting point was adopted.
[70] He 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,18 a starting point of five years, six months’ imprisonment was adopted on a charge of attempting to take possession of 5 kilograms of cocaine for purposes of supply. In that case the defendant’s role was described as being a “custodian courier”. In Smith v Police,19 a five-year starting point was adopted in relation to two charges of attempting to import firstly 80 and then 760 tabs of LSD.
[71] As regards your guilty plea, Mr Smith acknowledges if you entered a guilty plea following the sentence indication, having regard to the strength of the Crown case and the delay in entering a plea that the discount should be at the higher end of the range but not the maximum. He contends a 20 per cent deduction is appropriate.
Defendant’s submissions
[72] Mr Hamlin on your behalf acknowledges the quantity of drugs the subject of this attempted possession does place this offending in band five of Zhang. However, he submits because you did not know what the identity or quantity of the product that you were to retrieve, this is a case where there should be greater focus on the role you played rather than simply the quantity of drug involved when I assess a starting point.20 He submits that your role falls squarely within the lesser category emphasising the following factors:
(a)that you had the limited role of retrieval for which you were receiving directions throughout the operation;
(b)you received threats to coerce your involvement while in New Zealand;
17 de Macedo v R [2020] NZCA 132.
18 R v Anchondo [2018] NZHC 1978.
19 Smith v Police [2018] NZHC 878.
20 Tilialo-Staples v Police [2013] NZHC 1255 at [21].
(c)you were in financial difficulty at the time and that was being exploited;
(d)you were initially offered $50,000 for your assistance, but this was disproportionate to the value of the concealed material and the offer to pay you was retracted after the failure in Melbourne;
(e)you were at the bottom of the chain of the operation, possessing no influence over others. He stresses you were unaware of the quantity of drugs or the nature of the organisation which you were assisting; and
(f)you were involved for a discrete part of the smuggling operation with no further link to those above you.
[73] Mr Hamlin submits even if the Court were to determine your role fell, at least in part, within what is described as the significant role that, standing back and undertaking an overall impression, the Court should conclude that you are properly categorised as having the lesser role.
[74] In response to the cases advanced by the Crown, Mr Hamlin says that in the Cook decision the defendant was significantly more involved in that operation and more connected to other in the chain. He describes your case as having similarities to that in de Macedo and Anchondo. He described you as akin to the role of a catcher, exerting no influence on others. He says this operation was being facilitated at the direction of more senior persons in the chain of command. He urges a starting point of between five and six years’ imprisonment.
[75] In relation to the guilty plea, Mr Hamlin says he has been trying to resolve the case since he became involved in July 2023. He says there have been some delays because of an enforced change of counsel and some disclosure issues. He seeks the maximum credit of 25 per cent credit.
Analysis
[76] So where do I sit having heard those submissions supplemented by the oral submissions this morning?
[77] As the Court of Appeal confirmed in a case, Cavallo v R21 the guidelines in Zhang can appropriately be used as a cross-check in cases involving cocaine albeit with the starting points slightly adjusted downwards to reflect the reduced harm arising from cocaine.
[78] It is appropriate therefore to fix your starting point by reference both to the quantity of drug involved and the role you played in this offending.
[79] It is plain Mr Hodder that the quantity of drugs places this offending at the high end of band 5 of Zhang. However, that starting point range must be adjusted downwards to reflect the maximum penalty you face as one of ten years’ imprisonment. Mr Smith would reformulate band 5 as being a range of seven to ten years’ imprisonment. Mr Hamlin would reformulate that band as a range of five to ten years’ imprisonment.
[80] A strict application of the principle that the penalty for an attempt should not be 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 range for band 5 offending for this offence of five to ten years’ imprisonment. I consider a band 5 range that encompasses five years of a maximum of ten years to be unhelpfully broad in setting a sentence. I prefer and think more appropriate a slightly narrower band five which I fix as being six to ten years. The quantity of drug involved in this offending would place the appropriate sentence towards the higher end of that range.
[81] The issue of your role is in part contested, perhaps less contested than it was when the Crown filed their submissions. 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 is a difficult exercise. Not surprisingly, counsel invite me to focus on different factors. I remind myself that the Court of Appeal in Zhang observed that the three role categories are a tool to aid evaluation, they are not a straight jacket.22
21 Cavallo v R, above n 5 at [63].
22 Zhang v R [2019] NZCA 507 at [120], [2019] 3 NZLR 648.
[82] The Supreme Court in Berkland described the essential characteristic of a significant player is that they are important enablers in the chain who take their orders from leaders. The Court observed that purely operational functions will not usually place an offender at the upper end of 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 role justifying its placement at the upper end.23 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.24
[83] As regards reward, the Court considered that financial gain rather than commercial profit is the appropriate descriptor of a significant player.25 Consequently, 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.26
[84] For the purposes of the sentence indication hearing, I do not propose dealing with each of the individual considerations as adjusted by the Supreme Court in Berkland v R27 regarding a lesser or a significant role. The key factors I identify as critical to your role as follows:
(a)the operation to import a very significant quantity of cocaine into Australia was underway prior to your involvement;
(b)whilst financial pressures may have been the catalyst for your involvement in this offending, you made a conscious decision to engage in serious offending. The decision that you made to play a role in this offending was not a consequence of pressure, coercion or intimidation from others;
23 Berkland v R [2022] NZSC 143 at [68], [2022] 1 NZLR 509.
24 At [69].
25 At [70].
26 At [70].
27 Berkland v R [2020] NZSC 125
(c)you knew the packages to be retrieved contained a product that was illegal and of substantial value;
(d)you were motivated by the promise of financial reward;
(e)I accept you had no influence on those above you in the chain, however you must have understood this was a large-scale operation involving international players and was highly illegal;
(f)you were not involved in the direction of others in the operation; and
(g)I accept that the role you played was very important to the operation but was a limited function restricted to retrieving the product. You did not have an autonomous role.
[85] The evidence does not permit a finding that you acted under threats, duress or coercion. Rather, you committed to your role in the operation, and I accept it was a role you anticipated would be completed in early September, hence you having booked a trip to Bali on 12 September. Plainly there were matters outside your control. The involvement of the Australian authorities led to the Melbourne retrieval enterprise being aborted, which inevitably meant extending your role to attempting the retrieval from the port of Dunedin. I accept you would have come under pressure from those involved to complete your role and you were pressured to travel to Dunedin to do so.
[86] Both counsel have referred to the case of Cook v R.28 Mr Cook was found guilty of possessing cocaine for the purpose of supply and attempting to supply cocaine. He received a sentenced to 17 years and nine months’ imprisonment that related to 35 kilograms of cocaine imported within a jewel-encrusted bronze horsehead from Mexico.
[87] Mr Cook was assessed by the Court of Appeal to have played a role that fell within the significant categorisation. I distinguish your role from his because he had a more prolonged involvement in his operation, and he was directly involved in the
28 Cook v R [2020] NZCA 469.
ongoing proposed distribution of the drugs once they had arrived in New Zealand. Beyond that, the role he played had a number of features that are common to your role. In particular it was accepted by the Court of Appeal he was acting on instructions from a co-defendant playing the role of hired-help, which is how I would describe your role. Mr Cook was attending primarily to practical and logistical issues. That applies to you albeit I accept that it was all associated with the retrieval of the drugs. Mr Cook had no links to overseas organisations, did not communicate with them and I accept that applies to you. It was intended he would be paid a discrete fee for his role, which was US$50,000 and Mr Smith has indicated the Crown are content for me to give this indication accepting that you had been promised a $50,000 reward for your role. Mr Cook was described as having a low to mid significant role in that operation. As I have said, your role falls below that.
[88] In my assessment, your role went beyond that of a catcher. It has a number of features of the person who falls within the lesser category, but it also has features that fall within the lower end of the significant role. I see your offending as being on the cusp of those two categories.
[89] I have had regard to the cases involving an attempt to import a Class A drug, particularly Anchondo and Berkland. As you have heard they both involved attempts to import significant lesser quantities of a Class A drug and they result in starting points of five and five and a half years’ imprisonment. Beyond those cases and the Cook decision, the other cases I have been referred to, other than confirming the quantity of drugs here is very substantial, have not been of any particular assistance.
[90] I accept Mr Hamlin’s submission that the role an offender plays can be more impactful than the quantum of drug involved. The reality is this was the attempted possession of what we now know to be 91 kilograms of cocaine and whatever the categorisation of your role, I do consider the quantum of drug to be a significant aggravating factor. I agree you must have appreciated this operation involved very significant quantities of an illegal product.
[91] When I stand back and assess that quantity against the role which I accept is at the high end and overlapping the low end of significant, I consider the appropriate starting point to be one of seven years’ imprisonment.
Guilty plea credit
[92] From that starting point you are entitled to a credit for your guilty plea. You were first charged in September 2022. The case was first called in this Court on 14 February 2023. You were then represented by different counsel. At that stage a s 147 discharge application was filed. I infer that related to whether there was sufficient evidence to prove the product was cocaine. At that first call there was a trial date of 21 October 2024 allocated. The s 147 application was subsequently abandoned. It is more recently, last month, that you have sought a sentence indication.
[93] It is well over a year since you were first charged. I accept the evidence against you is strong. You are yet to enter a guilty plea. If you were to enter a guilty plea following this sentence indication, I agree that you would be entitled to a credit towards the higher end of the available range. I would fix that at 20 per cent.
Sentence indication
[94] The indication I give Mr Hodder is if you were to plead guilty to the charge, I would take a starting point of seven years’ imprisonment. I would allow a deduction of 20 per cent for your guilty plea. I accept there may well be other factors personal to you that I do not know about at the moment that might justify a further deduction on this sentence.
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Eaton J
Solicitors:
RPB Law, Dunedin
Counsel:
P K Hamlin, Barrister, Auckland
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