R v Iwu
[2015] NZHC 1438
•18 June 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-092-13378 [2015] NZHC 1438
THE QUEEN
v
NNAMDI AUGUSTINE IWU UGOCHUKWU KINGSLEY OKPARA HYACINTH DAMUS OCHIBULU NANCY LILLIAN LEEFE
Hearing: 18 June 2015 Appearances:
Y V Yelavich and E Woolley for the Crown
M Ryan for Iwu
S Tait and J Hudson for Okpara
M S Gibson for Ochibulu
J W Clearwater for Obiaga
R L Thomson for N LeefeDate:
18 June 2015
SENTENCING REMARKS OF THOMAS J
R v IWU, OKPARA, OCHIBULU and LEEFE [2015] NZHC 1438 [18 June 2015]
Introduction
[1] Mr Iwu, Mr Okpara, Mr Ochibulu, Mr Obiaga and Ms Leefe, you appear for sentence after being found guilty by a jury of various importation and possession for supply charges relating to your participation in a network responsible for importing over 2.5 kilograms of methamphetamine into the country.
[2] Today, each of you will be sentenced in respect of your involvement in relation to that offending.
The facts
[3] I will briefly set out the facts of the offending and consider each of your roles in more detail as I deal with your individual sentences.
[4] The charges were laid as a result of the New Zealand Police and the New Zealand Customs’ investigation into an organised criminal enterprise involving parties in Nigeria, Malaysia and New Zealand, with the purpose of importing methamphetamine into New Zealand through mixed methods of delivery being, specifically, the use of a physical courier and two mail importations.
Physical courier
[5] The first importation was on 13 November 2013, involving 1.5 kilograms of methamphetamine brought into New Zealand by Mr Miranda.1 Ms Leefe, you were instructed by Mr Obiaga to go the airport to make sure that Mr Miranda had successfully passed through Customs. Mr Obiaga gave you his flight details and a photograph. The flight was delayed so you left the airport shortly after. Mr Miranda was stopped by Customs. It was found he had over 1.5 kilograms of methamphetamine secreted in his luggage. Mr Miranda agreed to work with the
Police to undertake a controlled delivery.
1 Mr Miranda was acquitted by the jury on the charge of importation.
[6] Mr Miranda was instructed by a Daniel Tucker in Nigeria to hand over the bags to a Mr “Alfred Coker” in Auckland. Through text messages and telephone calls between Mr Miranda and Mr Coker, who was Mr Iwu, arrangements were made for Mr Miranda to deliver the bags containing methamphetamine to Mr Coker on 18 or 19 November 2013.
[7] On 18 November 2013, Mr Iwu travelled to Auckland to collect the bags. Mr Miranda waited at the pick-up location but no one arrived. Over the next few days, he received phone calls and text messages from a “Suzanne”, who introduced herself as Alfred Coker’s partner, to arrange the handover of the bags. “Suzanne” was subsequently identified as Ms Fiona Ishak who was acting on instructions from Mr Obiaga.2 Eventually, on 21 November 2013, the handover of the bags to Mr Mark Hughes took place at Mangere Bridge.
[8] Mr Hughes and others, also recruited by Ms Leefe, kept Mr Miranda under observation to see if he were being watched. Ms Leefe was coordinating their activities, while relaying her observations to Mr Obiaga and Ms Ishak.
[9] The bags were handed over to Mr Obiaga at Mr Hughes’s address. Mr Obiaga paid Ms Leefe $500, who, in turn, paid some money to those who had taken part in the delivery.
[10] Mr Obiaga hid the bags in a bush area near the cargo car-park at Auckland
Airport.
[11] On 24 November, Mr Obiaga met with Mr Iwu, Mr Okpara and Mr Ochibulu at the car-park to hand over the bags containing the drugs. He located the contents of the bags but not the methamphetamine which had been removed by the Police about an hour earlier. At this time, Mr Iwu suspected that Mr Obiaga had “ripped him off”, and Mr Obiaga suspected that he was “ripped off” by Mr Hughes and Ms
Leefe.
2 Ms Ishak pleaded guilty and was sentenced in this Court on 26 August 2014. See R v Ishak
[2014] NZHC 2027.
[12] Threats were subsequently made by Mr Iwu towards Mr Obiaga’s family in
Nigeria.
Mail importations
[13] Two importations of methamphetamine took place through the mail system on 20 November 2013 and on 1 December 2013. Mr Iwu, Mr Okpara and Mr Ochibulu were all involved in relation to these importations.
First importation
[14] On 20 November 2013, Customs officers intercepted a package from the Philippines addressed to Mata Hapokingi of 3/60 Avenue Road in Otahuhu. The package was described as containing personal effects. 49 zip lock bags containing
487.7 grams of methamphetamine were concealed in the heels of shoes in the package.
[15] The address on the package was the address of Mr Ochibulu at the time.
[16] Text messages with the address details for the package had been sent by Mr Okpara and Mr Iwu to each other and to contacts in Nigeria and Malaysia. Mr Iwu sent a text message to Nigeria with a phone number included in the consignee details on the package.
Second importation
[17] The second importation through the mail system was via a package from Cameroon addressed to Tracey Hapokingi of 10 Temuri Place, Auckland. The package contained two handbags. Hidden under the hard bases inside the bags was
640 grams of methamphetamine.
[18] Tracey Hapokingi is the name of Mr Ochibulu's partner and 10 Temuri Place is the address of her relatives.
[19] Text messages had been sent by Mr Iwu and Mr Okpara containing the same address details to phone numbers in Nigeria, Malaysia and to each other. Mr Iwu
provided two different Nigerian phone numbers with the details for the package. A member of the overseas syndicate in Malaysia sent messages to Mr Iwu with the same address details and the parcel’s tracking number.
[20] A controlled delivery of this package took place on 5 December 2013. Mr Ochibulu uplifted the parcel from 10 Temuri Place. He took it back to his home address. He phoned Mr Okpara, who went to Mr Ochibulu’s address. Mr Iwu arrived on a flight to Auckland on the same day and was arrested at the airport. In his jacket pocket was a set of digital scales of the type used to deal methamphetamine. Residue of methamphetamine was on the scales.
[21] As the Police entered Mr Ochibulu’s home address, he had his hands in one
of the bags and Mr Okpara was located trying to climb out of the window
Approach to sentencing
[22] The sentencing guideline of this Court requires me to take a two-step approach. First, I must establish what we call the starting point. That requires me to look at the nature and extent of each of your offending. Because this case deals with methamphetamine offending, I am required to follow a guideline judgment called R
v Fatu, which sets out the appropriate sentencing bands.3 You will hear me speak of
that decision and other decisions which will form the basis on which I reach my starting points. Secondly, I will look at what adjustments should be made to your starting points. Here, I will consider matters relating to your personal circumstances, which may increase or reduce each of your sentences, as the case may be.
[23] I must also take into account the purposes and principles of sentencing. When the court sentences offenders for dealing commercially in controlled drugs, the primary purpose is deterrence. Because of the harm done in the community by methamphetamine, denunciation is an important purpose, as is the need to hold you accountable and to promote in you a sense of responsibility for, and acknowledgement of, the harm. I must also take into account the purposes of
rehabilitation and reintegration. I also have regard to the need for consistency in
3 R v Fatu [2006] 2 NZLR 72 (CA).
sentencing, and have considered a number of relevant cases which deal with similar offending. I will not detail those cases today but reference to them will be incorporated in the footnotes of the sentencing remarks.
[24] I will now address each of you in turn, following that two-step process. At the end, after considering each of you individually, I will impose the appropriate sentences on you.
Mr Iwu
[25] Mr Iwu, you have been found guilty of two charges of importing methamphetamine in respect of the two importations through the mail system and one charge of possessing methamphetamine for supply in respect of the methamphetamine brought into New Zealand by Mr Miranda. The maximum penalty in respect of each charge is life imprisonment.
Setting the starting point
[26] The lead offences are the two charges of importation.4 The total amount of methamphetamine involved is the mail importation charges is 1.127 kilograms. The highest category of offending in the Fatu bands begins at 500 grams of methamphetamine and the amount involved in this case is clearly well beyond that. The Crown submits I should adopt a starting point of 17 to 18 years’ imprisonment, with an uplift of three years to reflect the totality of your offending. Your counsel says that a starting point of 14 years, with an uplift of two years is appropriate.
[27] In determining where you sit in terms of the lower or higher end of the Fatu sentencing range, I need to have regard to your position within the network.5 Mr Ryan, on your behalf, says there is insufficient evidence to distinguish your role from
others because the evidence of the hierarchy within the group is equivocal and,
4 All things being equal, an importer is more culpable than a supplier. See R v Fatu, above n 3, at
[22].
5 Role classification, pre-Fatu, is laid out in R v Wickremasinghe HC Auckland T013408, 28
March 2003. That case sets out three categories of importer: at the top end was the instigator, mastermind or prime mover. At the lower end of the scale was the mere courier. There was also an in-between category of offender, a second tier known as a “crucial player”. Subsequent cases have used these distinctions to assist in assessing the appropriate starting point; see R v Fung HC Auckland CRI-2006-004-010504, 20 September 2006 at [38]–[39].
accordingly, I should simply focus on the amount of drugs involved. I do not accept that view. I am satisfied there is evidence which distinguishes your role quite clearly.
[28] The Crown says you were a senior member at the highest level. It is accepted that you were not the mastermind of the overall network.6 Your role is described as the “prime mover” of the New Zealand group. That means that although you did not perform any of the physical tasks involved in the operation, your role was pivotal to the overall efficacy of the operation. I have considered the cases to which both the Crown and your counsel refer.7 I am satisfied from the evidence that you were at the highest level in the organisation at the New Zealand end. It was you who took steps to arrange for the mail importations. You provided the overseas syndicate with address details, and you were the main point of contact with them. It is obvious that the overseas syndicate reposed considerable trust and confidence in you.8 Although the parcels were not delivered directly to you, you went to an internet cafe with Mr Okpara to check the progress of the mail importation and, when the second parcel arrived, you travelled to Auckland from your home in Woodville.9 All of these factors persuade me that you were in a slightly higher league of culpability or involvement than your co-offenders.
[29] In R v Javid, the Judge was of the view that the manner in which the network operated provided insight into culpability.10 In that case, the defendant used an innocent co-accused to take the risk of bringing drugs into New Zealand. Similarly, your network was prepared to use the address details of family homes to carry the
risk of bringing drugs into New Zealand. You knew that because it was you (as well
6 It is accepted the overall mastermind was either Mr Tucker or Mr Chemezie (or both) in Nigeria.
See R v Wickremasinghe, above n 5, at [20]; “The mastermind might be found at any level or indeed remote entirely from the handling of the drugs”.
7 R v Nguyen HC Auckland CRI-2009-004-1300, 12 February 2010; R v Tien Nguyen HC Auckland CRI-2008-092-2791, 14 November 2008; R v Javid HC Auckland CRI-2005-004-
014044, 4 September 2007; and R v Law HC Auckland CRI-2008-004-6039, 13 May 2005.
8 This was a consideration in R v Tshisa CA507/05, 31 August 2006, a case relating to the importation of in excess of two kilograms of cocaine.
9 I note this evidence was used in trial to support the charge for possession for supply. Mr Iwu was acquitted on that charge. The evidence, however, demonstrates the importance of his role in relation to the importation charge(s) as well.
10 R v Javid, above n 7.
as Mr Okpara) who had sent the name and address details of Mr Ochibulu’s relatives
to the overseas syndicate which arranged for the parcels to be sent.
[30] The offending was clearly commercial in nature. Your counsel accepts that. The amount of methamphetamine you imported into this country has a street value of just over $1 million. Because you were involved at the higher level, the inference I draw is that you would have been rewarded by the fruits of the importation.11
[31] The Crown says that the duration of the offending, a period of about two weeks or even two months, is an aggravating factor. In my assessment, it is more the fact of two separate importations and the degree of premeditation and planning involved in the importation.12 Careful planning is evident from the way in which the drugs were imported, given the drugs were secreted in the base of the handbag and inside the heels of the shoes. Furthermore, I am satisfied you attempted to distance yourself from the offending because you knew the risks were high.13
[32] In those circumstances, I adopt a starting point in relation to the importation
charges of 16 years’ imprisonment.
[33] The Crown proposes I uplift the starting point by three years to reflect the possession charge which involved 1.5 kilograms of methamphetamine. The Crown says you again played a “lead” role in relation to that charge. I accept that submission. You co-ordinated the handover of the bags containing methamphetamine from Mr Miranda, using the name “Alfred Coker” in an attempt to avoid detection. You took positive steps to gain physical possession of the bags. You were involved in discussions with the overseas syndicate when the methamphetamine was discovered to be missing and you, yourself, were personally
involved in the threats concerning Mr Obiaga’s family. I am satisfied it was you who
11 See R v Wickremasinghe, above 5, at [22]. It was held that the quantity and the value of the drugs involved is “of prime importance” to masterminds and prime movers because they will know exactly how much the importation is and, secondly, because of their position, one can assume they themselves will be rewarded by the fruits of the importation. The greater the quantities imported, the greater the rewards are likely to be for them.
12 The duration of these kinds of operations varies and I do not consider two weeks or two months is of great duration. For example, in R v Nguyen, above n 7, multiple offending occurred over a period of nine months.
13 R v Nguyen, above n 7, at [14].
was intended to be next (and perhaps the last) in line in the supply chain. I increase your starting point by three years.
[34] I am satisfied, considering the totality of the offending, that the effective
starting point should be 19 years’ imprisonment.
Adjusting the starting point
[35] Both Mr Ryan and counsel for the Crown say there are no aggravating or mitigating factors personal to you. I will briefly explain why that is the case. The courts have made it clear on a number of occasions that previous good character can hold little weight in relation to drug offending given the need for deterrence both of the offender and of those thinking of offending in future.14
[36] Quite apart from that, I do not consider there is anything about your personal circumstances which provides any significant mitigation. Your wife is a New Zealander. You met in Malaysia. You married and came to New Zealand in
2011 on a working visa. You have three young children. As far as I can tell, you seem to have the support of your wife and family.
[37] However, you come to this Court as a first offender in New Zealand and there is no evidence of any overseas convictions. You are entitled to a nominal discount of five per cent in that regard.15
[38] Your counsel concedes there are no mitigating factors to draw from your pre- sentence report. The report writer was unable to assess your motivation to change because you maintained your innocence, although you said “they found me guilty, so I will do whatever I need to do”.
[39] The most obvious factor in respect of which a person in your position is entitled to a discount would be a guilty plea. That is taken as admission of
14 R v Wang [2014] NZCA 409 at [28]; R v Wickremasinghe, above n 5, at [38]; and Jarden v R
[2008] 3 NZLR 612 (SC) at [12].
15 Previous good character evidenced by absence of previous convictions is “not a predominant factor” and “of limited application”. See Wei v R [2012] NZCA 57 at [38].
wrongdoing and saves the state the cost of a trial.16 Mr Iwu, you maintain your innocence. Indeed, you have written a letter which was handed to me today repeating that you are innocent of the charges, so I am unable to take that any further.
[40] Given the discounts to which I have referred, the end effective sentence is
therefore 18 years’ imprisonment.
Minimum period of imprisonment
[41] The Crown submits I impose a minimum term of imprisonment. The Court of Appeal has said that “it is almost invariable” in very serious drug offending cases that such an order will be made.17 However, the power of the Court to impose a
minimum period remains discretionary.18 Your counsel says it is not necessary
because a minimum period of imprisonment will only have the effect of keeping you incarcerated in New Zealand at the expense of tax payers (than if you were to be deported after having served the period deemed appropriate by the Parole Board). That is a pragmatic view. It is a matter for the immigration authorities to decide whether you will be deported.
[42] The focus for me in respect of the consideration of a minimum period of imprisonment is whether the four factors listed in s 86(2) of the Sentencing Act 2002 are met, which is the need to hold you accountable for the harm done to the community; denouncing your conduct; deterring you and others from committing the same or a similar offence; and protecting the community from the offender. I am not satisfied that the ordinary parole period is insufficient to meet those objectives given the lengthy term of imprisonment. That you face the prospect of deportation is
relevant only to whether you will pose harm to the community upon release.19 The
report writer assessed you to be at a low risk of reoffending and at low-risk of causing harm to the community. I accept that is questionable given your persistent
16 R v Spencer HC Tauranga CRI-2009-070-9161, 5 February 2010 at [11].
17 R v Aram [2007] NZCA 328 at [78].
18 Section 86.
19 I have considered the authorities noting that the prospect of deportation is not a proper ground for refusing to impose a minimum sentence which is otherwise justified. See Bi v R [2014] NZCA 10 at [6]; and Olua v R [2014] NZCA 105.
claims of innocence. However, given the lengthy term of imprisonment, I am not satisfied a minimum period of imprisonment is required in this case.
[43] Mr Iwu, please stand. Mr Iwu, on the two charges of importation of methamphetamine, you are sentenced to 18 years’ imprisonment. On the charge of possession of methamphetamine for supply, you are sentenced to 12 years’ imprisonment. Those sentences are to be served concurrently. The effective sentence of the Court is 18 years’ imprisonment.
Mr Okpara
[44] Mr Okpara, you have been found guilty of two charges of importing and two charges of possessing methamphetamine for supply. Each of these charges carries a maximum penalty of life imprisonment. The importation charges relate to the two importations through the mail, as does one possession charge. The other possession charge relates to the methamphetamine brought into New Zealand by Mr Miranda.
Setting the starting point
[45] Again, I treat the lead offences as the two importations, totalling 1.127 kilograms. The Crown submits that a starting point of 16 to 17 years’ imprisonment, with an uplift of three years to three years six months’ imprisonment for the possession offences is appropriate. Your counsel says that I should adopt a starting point of 12 years’ imprisonment for the lead charge (being the one importation of
640 grams), with a “slight” uplift in relation to the other importation charge. Mr Tait submits there should be no uplift in relation to the possession charge relating to the importation because it has been effectively accounted for when setting the starting point for the lead offence. He submits an uplift of two to two and a half years is appropriate for the first charge of possession of methamphetamine for supply.
[46] In terms of the hierarchy of those involved, I accept you were not at the highest level. The Crown describes your role as Mr Iwu’s “right-hand man”, meaning you were his principal assistant. Your counsel opposes that submission. In my assessment, the Crown is correct to describe you as Mr Iwu’s primary assistant because you were the only person, other than Mr Iwu, who was involved in the
higher level of organisation by sending contact and address details to the overseas syndicate. You also participated in phone calls with the overseas syndicate. I accept you were more of an assistant rather than a leader because it is clear from the evidence that you did not play the “leading role” Mr Iwu did.20
[47] It is accepted by Mr Tait and counsel for the Crown that the feature of commerciality is an aggravating factor. Mr Tait says the degree of planning was quite “amateur” and opposes the Crown submission that the importations were sophisticated. There was minimal communication by you with the overseas syndicate, Mr Tait says. Although you did not secrete the methamphetamine into the shoes and handbags yourself, that was a feature of the enterprise of which you were part. In any event, it is the commerciality, the fact of two importations and premeditation which are the aggravating factors on which I place weight.
[48] The network used the address of family homes. You, like Mr Iwu, were aware of that because you also sent the address details connected with Mr Ochibulu’s relatives to the overseas syndicate.
[49] Overall, I consider that an appropriate starting point, in line with the
authorities, is 15 and a half years’ imprisonment.21
[50] Mr Okpara, your possession for supply charges reflect two different sets of offending: the first relates to the 1.5 kilograms of methamphetamine brought in to the country by Mr Miranda and the second relates to the 640 grams of methamphetamine secreted in the handbags. In respect of the first, you were involved in a number of phone calls and text messages in relation to the methamphetamine imported by Mr Miranda. You were involved in discussions as to
who should take part in the handover. On 24 November 2013, you went to the
20 For example, Mr Okpara went to the internet cafe at Mr Iwu’s request and entered tracking
details at the request of Mr Iwu.
21 Counsel for Mr Okpara submits that R v Tien Nguyen, above n 7, can be distinguished on the
basis that the quantity of methamphetamine involved in the lead offence was “nearly three times the amount” imported for the lead offence here, which Mr Tait submits to be 640 grams. The same reasoning was used to distinguish R v Javid, above n 7. I treat the two counts of importation together as the lead charges, with a total amount of 1.127 kilograms. The parcels were sent close together in time, through identical methods (i.e. mail importations), and sent to addresses with which Mr Ochibulu was associated.
airport with Mr Iwu and Mr Ochibulu to collect the bags from Mr Obiaga. In respect of the second possession for supply charge, you travelled to Mr Ochibulu’s house to be present when the parcel was opened. You were found there when the Police arrived. I am mindful that the second possession for supply charge is closely related in time and circumstances with the second importation charge and, therefore, there will be no uplift in that regard. Your culpability in respect of the first possession charge is less than Mr Iwu and I impose an uplift of two years.
[51] I am satisfied on a totality basis that an overall starting point of 17 and a half
years’ imprisonment is appropriate.
Adjusting the starting point
[52] Turning to your personal circumstances, Mr Okpara, you are 27 years old. You moved to New Zealand after meeting your wife in Malaysia. She is a New Zealand citizen. You applied for residency in June 2013 but your application has obviously been put on hold since your arrest. You come to this Court as a first offender and there is no evidence of any convictions in any overseas jurisdiction. You are entitled to a modest discount of five per cent in that regard.
[53] It is submitted on your behalf that you should be awarded a discount for family support and your immigration status. I am told you have the support of your wife and your mother-in-law. Mr Tait also submits that you speak limited English, so a lengthy term of imprisonment will be particularly difficult for you. As well, it is likely you will be deported once you have served your sentence. Mr Okpara, those factors do not set you apart from the rest of your co-offenders. As I have already said, there is very little room to discount any sentence for personal circumstances in relation to drug offending.
[54] Mr Okpara, I do not accept the submission of remorse that is made on your behalf. It is noteworthy that the report writer records that you did not appear to take responsibility for the offending, despite saying to the writer, “I’m so sorry for what happened, I don’t mean to join with others to bring drugs into New Zealand”.
[55] You have maintained your innocence so there is no discount for a guilty plea.
[56] Your counsel submits you should be awarded a discount for your time on bail by electronic monitoring from 20 June 2014. You spent three months on a 24-hour curfew. After that, the conditions were varied to enable you to continue your employment. I allow a discount of four months in respect of your bail conditions.
[57] That brings the end sentence to 16 years and two months’ imprisonment.
Minimum period of imprisonment
[58] As you will have heard me say, the Crown requests a minimum period of imprisonment.
[59] Although that has become “a general principle”,22 I am not convinced, for the reasons I have already articulated in relation to Mr Iwu,23 that a minimum term is required. In considering the need to protect the community, I note you will be deported when your sentence has concluded.24
[60] Mr Okpara, please stand. On the two charges of importation of methamphetamine, you are sentenced to 16 years and two months’ imprisonment. On the two charges of possession of methamphetamine for supply, you are sentenced to
10 years to be served concurrently.
Mr Ochibulu
[61] Mr Ochibulu, you have been found guilty of two charges of importing and two charges of possessing methamphetamine for supply. Each carries a maximum penalty of life imprisonment. The importation charges relate to the two importations through the mail as does one possession charge. The other possession charge relates
to the methamphetamine Mr Miranda brought into New Zealand.
22 R v Shaw [2015] NZHC 238 at [55].
23 See paragraph [42] above for reasoning.
24 Again, noting that the prospect of deportation, on its own, is not a proper ground for refusing to impose a minimum sentence which is otherwise justified. See Bi v R, above n 19, at [6], and Olua v R, above n 19.
Setting the starting point
[62] As with the other two offenders, I treat the two importations as the lead offences. The amount involved, 1.127 kilograms of methamphetamine, places the offending squarely into band four of the Fatu decision. 25
[63] The Crown submits the appropriate starting point for the importation offending should be somewhere between 15 to 16 years’ imprisonment, with an uplift of three years to three years, six months’ imprisonment to take into account the possession offences. Your counsel submits the appropriate starting point is 14 years, with an uplift of three years to take account of the possession for supply charge and the other importation charge.
[64] Mr Ochibulu, although you did not send any text messages, you provided the addresses for the parcels to be sent to, and you obviously had to do that for the enterprise to be successful. You personally collected the second parcel from the address you had provided. The Crown says your role was something more than a “catcher”. Your counsel says you played a more “custodial” role and that I should adopt a lower starting point because it is unlikely that you would have had an equal share from the proceeds of the offending than the more senior players in this network. The Court of Appeal has made it clear that a person is not treated more leniently simply because there is no evidence that he or she had a share in the profits
of the drug offending. That is because:26
… those who accept responsibility to organise large scale drug importing…must expect to suffer the obvious consequences, notwithstanding there is no proof of actual profit to them.
[65] You were involved in both importations because you provided those above you in the hierarchy with address details. That is more than a custodial role. Your role was vital because it was you who was entrusted with the delivery and pick-up of
the drugs, which is a crucial part of the enterprise. Although I accept that you did
25 Mr Ochibulu’s counsel relies on the one charge of importation as the lead charge, being 640 grams. I prefer the Crown’s approach that both mail importations amount to the “lead” offences, totalling in 1.127 kilograms. See footnote 21 above.
26 Tshisa, above n 8, at [26].
not necessarily want to be actively involved, the reality is that you became actively involved.
[66] In any event, I agree that your role was something more than a catcher because not only did you get your “hands dirty”27 by performing the physical task of uplifting the parcel but you were also in the background involved in the organisational aspect as well. That is evidenced by the fact that you participated in some phone calls with the overseas syndicate, which demonstrates your role as part of a bigger and organised aspect of the offending.
[67] I take a starting point of 15 years’ imprisonment.
[68] I accept that the second possession charge is closely related to the circumstances of the importation charge, so I will impose no uplift in respect of that. I uplift the amount in respect of the first possession for the supply charge by one and a half years to take into account your later and lesser involvement with the drugs brought into the country by Mr Miranda.
[69] That takes your effective starting point to 16 and a half years’ imprisonment.
Adjusting the starting point
[70] Mr Ochibulu, I see nothing in your personal circumstances to justify a reduction from the starting point. You are a permanent resident in New Zealand, you are married to a New Zealander with children.
[71] Your previous convictions in New Zealand relate to drink driving; the latest being in 2012. You have no previous convictions in relation to drug offending. Although you are not someone with an unblemished record, I agree with your counsel and counsel for the Crown that your previous convictions should not operate as an aggravating factor so as to increase the starting point. However, you are not
able to come to this Court as a first offender.
27 R v Wong HC Auckland CRI-2005-004-15296, 8 September 2006 at [14].
[72] According to your pre-sentence report, you appear to accept the verdicts and are prepared to face the sentence you will receive today. I note too the content of the letter you have written which emphasises you are remorseful and have now come to terms with your part in the offending. I am hesitant to give you any credit for that because whether you are remorseful for your offending or for the position in which you have found yourself is hard to ascertain.
[73] Mr Ochibulu, your counsel has asked for an allowance for the period under which you have been subject to bail by electronic monitoring. I accept you are entitled to a reduction in light of that. I allow a discount of four months in that regard.
[74] Taking these factors into account, I allow a discount of eight months in your circumstances, leaving an effective end sentence, Mr Ochibulu, of 15 years and 10 months’ imprisonment.
Minimum period of imprisonment
[75] The Crown, again, seeks a minimum period of imprisonment. As I have said, however, given the length of sentence, I am not satisfied that it is necessary.28 I also, of course, must be consistent with your co-defendants29 who, as I have already said, will not be subject to a minimum term of imprisonment.
[76] Mr Ochibulu, please stand. On the two charges of importation of methamphetamine, you are sentenced to 15 years and 10 months’ imprisonment. On the two charges of possession of methamphetamine for supply, you are sentenced to eight years to be served concurrently.
Mr Obiaga
[77] Mr Obiaga, you have been found guilty of one charge of importing methamphetamine and one charge of possessing methamphetamine for supply. Both
28 See paragraph [42] above for reasoning.
29 Section 8(e).
charges relate to the methamphetamine brought into New Zealand by Mr Miranda on
13 November 2013. Each charge carries a maximum sentence of life imprisonment.
Setting the starting point
[78] The importation charge, I take as the lead offence. The total amount imported in Mr Miranda’s luggage was 1.5 kilograms, which takes you comfortably into the fourth band of Fatu. The Crown submits I should adopt a starting point of
16 to 17 years’ imprisonment, with an uplift of two years’ in respect of the possession charge. Your counsel says a starting point of 10 years’ imprisonment is appropriate and there should be no uplift for the possession charge given it relates, in his submission, to the same set of facts as the importation charge.
[79] As you will have heard me say, because the amount is well beyond the highest category identified in Fatu, the degree and level of your involvement are of importance to setting the appropriate starting point. The Crown says that although you were not the mastermind of the drug-ring in New Zealand, you were entrusted
with supervising the importation. Your counsel opposes that view.30 I agree with the
description submitted by the Crown. It is clear you supervised the importation from a distance.31 You instructed those who you recruited. You gave Ms Leefe details of Mr Miranda’s flight and showed her a copy of his passport photograph, so she knew who to look out for at the airport. You kept a close eye on those who were working for you.
[80] The Crown says that you stood to gain half of what was in the bags. Although there was some suggestion of that, I am not satisfied of that aspect to the requisite standard. The evidence shows you were expected to hand over the bags to Mr Iwu and, indeed, at the bushes near the air-cargo facility, you tried to give him everything you could find. You asked for a fee of $1000 prior to showing them
where the bags were located.
30 Mr Clearwater, for Mr Obiaga, accepts the importation charge is the lead offence but submits his role is more akin to that of a courier because he was to collect the bag from the airport and to deliver it to Mr Iwu. The importation ended at the time Mr Miranda exited Auckland Airport. In setting the starting point on the lead offence, I am concerned with the role Mr Obiaga played up to the point in which the importation was complete.
31 Javid, above n 7, at [16].
[81] Another aspect which increases your culpability is the manner in which your network operated. The jury accepted that Mr Miranda did not know what was in the suitcase because he was acquitted at trial and so your network was prepared to use innocent individuals to carry the risk of bringing drugs into New Zealand.32 You knew about Mr Miranda because of the details to which I have already alluded and some of the evidence at the trial also supports that inference.
[82] The starting point I adopt for the lead offence is 15 years’ imprisonment.
[83] I must now consider the uplift for the starting point to reflect the possession for supply charge. The short point is that I do not accept the submission made on your behalf that the possession charge relates to the same set of facts as the importation charge. It does not. The uplift reflects the elaborate arrangements you undertook in an effort to counteract the risks involved during the handover phase from Mr Miranda to you, as well as from you to Mr Iwu. You recruited Ms Ishak
and Ms Leefe to distance yourself from the hand-over,33 you purchased “throwaway”
phones to be used by those you recruited to protect the identity of those involved, you travelled to the intended handover location to observe where surveillance cameras were located, and you took positive steps to keep the bags moving through the chain. You were obviously trusted by the overseas syndicate to ensure that the drugs reached the intended recipient.
[84] I accept there was evidence that you only became involved as a late choice. I do not accept, however, the submission that your role was similar to that of Ms Ishak and Ms Leefe. The fact Ms Leefe might have made a decision on one occasion, when she could not get hold of you, does not suggest that she was acting independently in this offending.
[85] All of this, Mr Obiaga, occurred once the importation was complete and is therefore reflective of the possession charge. That offending alone would warrant
falling within the fourth band of Fatu.
32 Javid, above n 7, at [17]–[18].
33 I accept the submission made for Mr Obiaga that he did not himself recruit Mr Hughes or Mr
Leefe (who was acquitted by the jury on charge of possession for supply).
[86] I now consider the totality of your overall offending. The purpose of this inquiry is to ensure that the aggregate sentence is not wholly out of proportion to the gravity of your offending as a whole. I agree with the submission of the Crown that an uplift of two years is appropriate. I am satisfied an overall starting point of 17 years’ imprisonment reflects your overall culpability.
Adjusting the starting point
[87] I must now consider whether there are any aggravating or mitigating factors personal to you.
[88] Mr Obiaga, as you will have heard me say, personal circumstances carry little weight in relation to this type of offending. But nevertheless I must consider them.34
You have been a New Zealand resident since 2011. You have a wife and two children living in Australia. Your family moved there because your wife obtained full-time employment, you say.
[89] Your counsel submits that you are entitled to some credit to your previous good character. You worked as a carer for people with intellectual and/or mental health problems for 14 months prior to your arrest when you were dismissed from your employment. You were a member of the executive of the Auckland Igbo Association. I have before me a letter in support of your character from Mr Rawiri, whose family home you resided in while you were on bail. Mr Rawiri speaks very highly of you and the strong bonds you formed with his whānau. He says that you have provided his whānau with “a deep appreciation for [your] culture, upbringing and spiritual values.” But, of course, Mr Obiaga, that evidence relates to your character after-the-fact of the offending. Mr Rawiri did not know you personally until you were on bail.
[90] However, since this is the first time you come before this Court and there is no suggestion you have any prior convictions, you are entitled to a modest discount
of five per cent in that regard.
34 Subsections 8(h) and (i).
[91] You have provided evidence that you suffer from claustrophobia and are on medication prescribed by a prison doctor. You told your doctor you have suffered from this for over 20 years as a result of having been stuck in a lift for 2 hours. You ask that I take this factor into account, your counsel submitting it is a personal matter which will make the sentence of imprisonment disproportionately severe. However your doctor's letter does not provide me with the evidence which would be required to make any allowance in this regard. It does not detail the extent of your condition and how you would react to imprisonment which, of course, will be a physical restriction but not to the same degree, for example, as being in a lift. Furthermore, as it stands, your condition is obviously being managed by the prison health workers.
[92] Your counsel submits that you have demonstrated genuine remorse, at least in part, despite the fact you pleaded not guilty. In cross-examination, you wanted it to be known that you took (and continue to take) full responsibility for Ms Leefe’s involvement in the offending. In my assessment, that does not afford you any discount. You assumed responsibility for Ms Leefe after it was patently obvious from all the evidence that it was you who recruited her. Your comment did not go beyond what was obviously the position. I note also there is no indication in your pre-sentence report that you have demonstrated any remorse since the conclusion of the trial.
[93] Mr Obiaga, you have been on bail by electronic monitoring since 15
September 2014. I allow a discount of four months in that regard.35
[94] The end effective sentence is therefore 15 years and 10 months’
imprisonment.
Minimum period of imprisonment
[95] The Crown has sought a minimum term of imprisonment. However, for the reasons I have already given,36 and as it is a lengthy sentence of imprisonment, I am
not satisfied a minimum period is required. I also note that since being on remand,
35 Akin to R v Afakasi [2014] NZHC 2907.
36 See paragraph [42] above for reasoning.
you have completed four sessions with Community Alcohol and Drug Services
(CADS) and a one session of anger management.
[96] Mr Obiaga, please stand. On the charge of importation of methamphetamine, you are sentenced to 15 years and 10 months’ imprisonment. On the charge of possession of methamphetamine for supply, you are sentenced to 12 years to be served concurrently.
Ms Leefe
[97] Ms Leefe, you have been found guilty on one charge of possession of methamphetamine for the purpose of supply, which carries a maximum penalty of life imprisonment. The amount involved was 1.5 kilograms, which is squarely within the fourth band of Fatu.
Setting the starting point
[98] In line with Ms Ishak’s sentence, the Crown submits that a starting point of
10 years’ imprisonment is appropriate. You accept that.
[99] Although your role was not “crucial”, it was nonetheless important because you played a vital link between those playing crucial roles in the operation, the Crown says. Your involvement does not go as far as being of “critical” importance because without you, Mr Obiaga, no doubt would have found other people to become involved and perform your role.
[100] In line with the principle of parity, that starting point will be consistent with the one given to Ms Ishak. You, like Ms Ishak, were used to make Mr Obiaga’s connection to the drug offending more remote. However, in my assessment, arguably, you have could have had a slightly higher starting point because of the element of gain attached to your role. You accept you were motivated by financial gain. You were paid for your involvement, whereas Ms Ishak in fact, lent money to Mr Obiaga. I should also add, that although your role was replaceable, you brought
in other people, your family members.37 That arguably increases your culpability.
37 Mr Rameka (not charged), Mr Hughes (sentenced) and Mr Leefe (acquitted).
You received instructions and you passed them on to those below you. There is a suggestion, therefore, that you were an important player with a position of responsibility, perhaps more so than Ms Ishak. However, I am not satisfied there is a need to depart from the starting point given in respect of her offending and on which both counsel agree.
[101] I therefore take a starting point of 10 years’ imprisonment.
Adjusting the starting point
[102] I now turn to consider your personal circumstances and whether there is anything to suggest that the starting point should be uplifted or discounted. Obviously, you are in a quite different position from Ms Ishak, who pleaded guilty and gave considerable assistance to the authorities. You maintained your innocence. However, this is your first offence and you are entitled to a discount in that regard.
[103] Your pre-sentence report is encouraging. The report writer described you as a “positively motivated intelligent woman with insight into [your] personal situation”. You do not have a drug and/or alcohol abuse problem. In the report writer’s opinion, you showed genuine remorse. You say you accept the verdict. Your counsel says you have made a significant contribution to the community, particularly through your job and this was attested to by the witness called on your behalf at the trial. There was also a letter handed to me today speaking of your good character.
[104] I am also aware, as these had to be managed through the trial, of your health issues.
[105] In the circumstances, I give you a discount of 10 per cent reflecting your personal situation and previous good character.38
[106] The end sentence is therefore nine years’ imprisonment.
38 R v Jarden, above n 14. Noting, of course, that personal circumstances are of limited application in cases of drug offending.
[107] Ms Leefe, please stand. On the charge of possession of methamphetamine for
supply you are sentenced to 9 years’ imprisonment.
Conclusion
[108] Finally, I make an order for the disposal of the methamphetamine and items seized by the Police associated with the offending.
Thomas J
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