R v Hughes

[2015] NZHC 22

ORDER PROHIBITING PUBLICATION OF THE SENTENCE AND ANY PART OF THE PROCEEDINGS (EXCEPT THE RESULT AS SET OUT IN

[21] IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL [RETRIAL]. PUBLICATION IN LAW REPORT OR LAW DIGEST

PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-092-013378

[2015] NZHC 22

THE QUEEN

v

MARK RAYMOND HUGHES

Hearing:

23 January 2015

Counsel:

Y V Yelavich for the Crown

S N B Wimsett for the Prisoner

Sentence:

23 January 2015

SENTENCE OF VENNING J

Counsel:     S N B Wimsett, Auckland

Solicitors:    Meredith Connell, Auckland

R v HUGHES [2015] NZHC 22 [23 January 2015]

[1]    Mark Hughes, you are for sentence, having pleaded guilty to one count of possession of a class A controlled drug for supply, methamphetamine. The maximum penalty is life imprisonment.

[2]    Your involvement in the offending was limited, as is apparent from the summary of facts. The summary of facts discloses that a Mr Miranda flew from Auckland to Port Moresby, and returned to New Zealand on 13 November 2013 with a blue trolley suitcase and a computer in a backpack. On arrival in New Zealand, he was searched by Customs. The suitcase was found to contain one kilogram of methamphetamine, and the backpack another 500 grams. Mr Miranda agreed to assist the police and Customs by delivering the suitcase and the backpack to the intended recipients in New Zealand.

[3]    A number of people were drawn into dealing with the drugs. On the instigation of a Mr Iwu, arrangements were made for Mr Miranda to hand over the bags to Mr Iwu in the vicinity of a New World supermarket on Tuesday, 19 November 2013. While Mr Miranda was waiting outside the supermarket, he was observed by Messrs Okpara and Ochibulu. He was kept under observation by them. Ultimately, he left the supermarket and the meeting did not take place. Mr Iwu remained at Mr Okpara’s address.

[4]    The next day, Messrs Iwu and Okpara went to an internet café where they checked the progress of a parcel on its way to New Zealand. During the same day, Mr Miranda was again contacted by a woman, who introduced herself as Mr Iwu’s partner. This was a Ms Ishak. She had been recruited by Mr Obiaga as a means of him distancing himself from the hand-over of the suitcases from Mr Miranda.

[5]    On 21 November 2013, Mr Obiaga sent a text message in the name of “Suzanne”, which was the attributed to Ms Ishak, to Mr Miranda arranging a meeting at 3.00 pm that day, when he was to hand over the bags and the laptop computer. From about 3.30 pm that day, on Thursday, 21 November 2013, you and Mr Leefe and Mr Rameka were in the vicinity of the Super Value Supermarket, Mangere Bridge, observing Mr Miranda under the directions of Mr Obiaga and Ms Leefe. Ms Ishak

phoned Mr Miranda at 5.32 pm, telling him that Mr Iwu would be there to see Mr Miranda in about 10 minutes and he was to hand over the package.

[6]    At approximately 6.05 pm, you approached Mr Miranda and asked for the bags. Mr Miranda asked you what the code word was. You did not know the password, and Mr Miranda declined to give you the bags. As a result of Mr Miranda not handing over the bags, there followed another series of calls and text messages to progress the delivery. Mr Miranda gave up waiting and at about 7.40 pm, he started walking over the old Mangere Bridge. Mr Leefe met up with you and Mr Rameka in a car and after further discussion, you and Mr Rameka followed on the motorway to the other side of the bridge to intercept Mr Miranda. Mr Miranda received further instructions, telling him to return to the Mangere Bridge shops and to hand the bag to the same man when he was approached again. He was again shadowed by you and Mr Rameka in the car.

[7]    At 8 o' clock, Mr Miranda handed over the two bags and laptop to you, as he had been instructed by Ms Ishak to do. You then placed the bags in the back of the car and drove off with Mr Leefe. Mr Miranda was left on the side of the road.

[8]    Next you, Mr Leefe and Mr Rameka met up at your address in Manurewa where you handed over the bags to Mr Obiaga, who in turn paid Ms Leefe $500 for uplifting the bags from Mr Miranda. From this, she paid you, Mr Hughes $200. That was the extent of your involvement in the offending.

[9]    The pre-sentence report notes that you are 40 years old, that you have been in a relationship with your present partner for 15 years and you have three children with her, and a daughter from a previous relationship. Your partner and family are supportive of you. Your partner and your mother have both written letters to the Court in your support. Your partner’s letter, in particular, makes it clear the effect that your offending has had on her and your children.

[10]   There is one matter of concern in the pre-sentence report and that is the reference to your explanation of your actions by saying you were not aware the package you were picking up contained drugs, and that you had been offered a small

amount of money to pick up some documents. However, as your counsel has acknowledged, and as you know, you told something slightly different to the police when you were interviewed. You accepted that you knew the bag had something illegal and that it could be “cannabis, f’ing crack, speed or you don't know”. The short point is that you knew illegal drugs were involved, but I accept you did not know the quantity.

[11]   However, to your credit, the pre-sentence report records that you have expressed remorse and regret for your decision to become involved in the way you did, and the report writer assesses your remorse as genuine, rather than because of your present circumstances. You acknowledge the shame and humiliation brought on your family and whanau. You are assessed at having a low risk of reoffending.

[12]   Mr Hughes, in sentencing you, the Court is required to take account of the purposes and principles of the Sentencing Act 2002. In your case, the particularly relevant purposes are to hold you accountable to the community for the drug offending you were involved in, and to denounce and deter such conduct. Your family is affected by your offending. But the supply of drugs to the community affects a number of families.

[13]   As to the principles, I take into account the gravity of the offending, particularly your degree of culpability. I also take into account the seriousness of the offence, as recognised by Parliament imposing the maximum term of life imprisonment for drug offending. I also have regard to the need for consistency in sentencing, and have considered a number of other relevant cases in this area.1

[14]The Crown submits that given the quantity of methamphetamine involved at

1.5 kilograms with a street value of approximately $1.5M, band four of R v Fatu

applies, with a starting point of 10 years’ imprisonment.2

1      R v Soles [2014] NZHC 2665; R v Ishak [2014] NZHC 2027; R v Javid HC Auckland CRI-2005- 004-014044, 4 September 2007, Lang J; R v Araki HC Auckland CRI 2008-004-2758, 10 June 2008, Allan J; and R v Law HC Auckland CRI 2008-004-006039, 13 May 2008, Wylie J.

2      R v Fatu [2006] 2 NZLR 72 (CA).

[15]   However, in Fatu, the Court of Appeal gave some indication that the bands were not to be rigidly followed in all circumstances, and I will refer to two passages from the Court of Appeal in support of that proposition. At [31], the Court said:

[31]      Our sentencing ranges overlap between categories. Where an offender fits within any particular band will depend not just on the quantity and purity of the drugs involved but also the role played by the offender. Those who are primary offenders can expect starting point sentences towards the higher end of the relevant band with the converse applying to those whose role is less significant. Obviously the sentencing Judge will also need to take into account the principles of sentencing referred to in s 8 of the Sentencing Act 2002. Further, the aggravating and mitigating factors relevant to the offending (as opposed to the offender), as set out in s 9 of the Sentencing Act, will also be highly relevant in fixing the starting point within a particular band.

And at [32], the Court said:

[32] In cases involving importation and supply, considerations of commerciality may be significant. Indeed, as will become apparent, we think that in importation cases involving only small quantities of the drug for personal consumption, the appropriate sentencing response may lie outside (ie beneath) the bands postulated (see [34] below). In cases involving supply, there is an obvious culpability difference between those who supply for gain and those who give small quantities of drugs to friends for their personal consumption (or, perhaps, buy small quantities of drugs for their friends). Where there is a complete absence of commerciality and an absence of aggravating features (e.g. an aggravating feature such as the supply of drugs to school children or other young people) sentencing Judges may sentence beneath the bands postulated in [34].

[16]   I also have regard to the comments of Chambers J in R v Wickremasinghe to the effect that in the case of a person involved in the drug offending, but who plays a much lesser role, and who may not know of the quantity of drugs involved, and who does not share in the fruits of the dealing but is just paid a fee, (such as you), the quantity may not be quite so important3

[17]   Mr Hughes, I consider you to have been a link in the chain of offending but no more. You had no organisational role at all. You were acting on instructions. While what you did involved you in the possession of methamphetamine for supply, to which you have properly pleaded guilty, you were not a crucial player. If you had not been available to undertake the role you did, someone else would have been chosen. I accept that you had no idea of the amount of the drugs involved. For those reasons, I

3      R v Wickremasinghe HC Auckland T013408, 28 March 2003 at [23]–[25].

am satisfied that, in this case, the Court is able to take a starting point of eight years’ imprisonment.

[18]   I then turn to consider your personal factors. There are no personal aggravating factors. While you have previous convictions, they are for unrelated offending. You are not entitled to any credit as a person with a clean slate, but nor is there any uplift for the previous unrelated offending.

[19]   I have noted the mainly positive pre-sentence report. I accept a reduction of six months for your positive personal features is appropriate, and from that, I deduct a further discount of between 20 and 25 per cent for your guilty plea, in your case approaching 25 per cent.

[20]Mr Hughes, please stand.

[21]   On the charge of possession of methamphetamine for supply, you are sentenced to imprisonment for five years, eight months.

[22]Stand down.

Venning J