R v Le'Ca
[2018] NZHC 274
•27 February 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2016-092-11616
[2018] NZHC 274
THE QUEEN v
ADRIAN LE’CA
Hearing: 27 February 2018 Appearances:
K E Hogan for the Crown
A J Maxwell-Scott and E van Son for the defendant
Judgment:
27 February 2018
SENTENCING NOTES OF GORDON J
Solicitors: Crown Solicitor, Manukau Counsel: A M Scott, Auckland
R v LE’CA [2018] NZHC 274 [27 February 2018]
Introduction
[1] Mr Le’Ca, you appear for sentence today having pleaded guilty to three charges relating to the importation of methamphetamine:
(a)Importation of a class A controlled drug (methamphetamine);1
(b)Possession of a class A drug for supply (methamphetamine);2 and
(c)Possession of a class A drug for supply (cocaine).3
[2]The maximum penalty for each charge is life imprisonment.4
[3] I will begin by briefly summarising parts of the factual background which, in my view, are relevant to the sentence I will impose.
Factual background
[4] Mr Le’Ca, you were involved in a methamphetamine importation operation that utilised the international mail system. Through the combined efforts of the New Zealand Police and New Zealand Customs, the operation came to light.
[5] You did not conduct this operation alone. You had help. The charges you pleaded guilty to, and for which you are to be sentenced, relate to specific instances. The possession for supply charges relate to an incident on 30 September 2016. On that day, you and your co-offender, Fred Uputaua, met up with a third person at Totara Park in Manurewa. That third person placed a sports bag containing 14.9 kilograms of methamphetamine and 1.923 kilograms of cocaine in Mr Uputaua’s car. You supervised the exchange from your car parked nearby.
[6] The importation charge relates to a package containing 1.362 kilograms of methamphetamine intercepted by Customs on 8 May 2016.
1 Misuse of Drugs Act 1975, s 6(1)(a).
2 Misuse of Drugs Act, s 6(1)(f).
3 Misuse of Drugs Act, s 6(1)(f).
4 Section 6(2)(a).
[7] Your co-offenders have already been sentenced. Duffy J sentenced both Queenie Matthews and Meinata Piahana on 10 November 2017.5 Ms Matthews is your sister, while Mr Piahana is your nephew. Both received a sentence of 11 months’ home detention.6 Those sentences are in no way reflective of the sentence that I am going to impose on you. Duffy J described the role of Ms Matthews and Mr Piahana as “a support role, sometimes described as that of a “catcher””.7 She further commented:
[12] … There is no indication that you opened the packages of methamphetamine that were sent to your address, or arranged for their distribution. You did not have any sophisticated involvement in planning the scheme …
[8] On the other hand, Duffy J labelled your offending as much more serious.8 She regarded the personal circumstances of Ms Matthews and Mr Piahana as “unique and exceptional”.9 This therefore warranted a “departure from the general approach that this Court applies in sentencing for this type of offending”.10 As will be seen, in your case there are no such circumstances.
[9] Lang J sentenced Mr Uputaua separately on 25 September 2017 to 13 years and nine months’ imprisonment.11 This sentence is closer to the sentence I will impose on you. Nevertheless, Mr Uputaua had a support role. You have admitted that you were both the organiser of the importation and distribution of methamphetamine.
[10] Mr Le’Ca, you lived in Thailand for six years. Upon your return from Thailand on 8 September 2015, you listed your address as 5 Gypsy Moth Place, Papakura. This is the home address of Ms Matthews and her son, Mr Piahana.
[11] On 30 September 2016, the Police executed a search warrant at your then address, 5/19 Waihi Way. They located $257,000 in cash and recently acquired luxury items, as well as encrypted Blackberry cell phones. The following day they executed
5 R v Piahana [2017] NZHC 2763.
6 At [51].
7 At [12].
8 At [3].
9 At [48].
10 At [48].
11 R v Uputaua [2017] NZHC 2320 at [13].
a search warrant at 5 Gypsy Moth Place and located empty shoe boxes with sticky notes referencing large amounts of cash.
Approach to sentencing
[12]Mr Le’Ca, setting a finite sentence involves three steps.12
[13] I must first set a starting point for your sentence to take into account the facts of your offending, and then adjust it up or down taking into account your personal circumstances. The last step is to consider what discount you should receive for your guilty plea. There is also the matter of a minimum period of imprisonment.
[14] I note that through this process, I will have regard to the purposes and principles of sentencing contained in ss 7 and 8 of the Sentencing Act 2002. Your offending is one of the most serious forms of offending; reflected through the maximum penalty. Methamphetamine has been described as an “insidious, pernicious and highly addictive drug”, responsible for “incalculable levels of misery”.13 As Moore J commented:14
[20] … Its dreadful effects ripple well beyond the addict. Families including your own have been decimated by its collateral damage. The consequence to our community is simply huge. That is why any sentence imposed must also operate as a deterrent to others who may be tempted by the massive profits associated with this trade.
[15] The Court of Appeal commented in the context of methamphetamine offending in Sarah v R that “deterrence and denunciation must be the primary sentencing objectives”.15 I must, therefore, impose a sentence that will hold you accountable for the harm done to the community, as well as one which will denounce your behaviour and deter you and others from committing similar offending.
[16] I must also take into account the gravity of your offending, including your degree of culpability, the need for consistency with appropriate sentencing levels and
12 R v Taueki [2005] 3 NZLR 372 (CA); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
13 R v Keogh [2016] NZHC 508 at [20].
14 R v Keogh, above n 13, at [20].
15 Sarah v R [2013] NZCA 446 at [42].
the need to impose the least restrictive sentence that is appropriate in the circumstances.
Starting point
[17] You are charged with more than one offence. The Crown accepts, and I agree, that a concurrent sentence of imprisonment is appropriate.16 What this means is that I will adopt a lead offence and determine a starting point for that offence and then uplift it to reflect the totality of the offending.
[18]In setting a starting point I take the charge of possession for supply of
14.9 kilograms of methamphetamine as the lead offence. As I noted earlier, this charge attracts a maximum penalty of life imprisonment.
[19] There is a tariff case for this type of offending, namely the Court of Appeal decision of R v Fatu.17 That case helps me assess the seriousness of your offending and determine the starting point. In Fatu, the Court of Appeal categorised the seriousness of methamphetamine offending into four bands resulting in different starting points:18
(a)Band one – low-level supply (less than 5 g) – two years to four years’ imprisonment.
(b)Band two – supplying commercial quantities (5 g to 250 g) – three years to nine years’ imprisonment.
(c)Band three – supplying large commercial quantities (250 g to 500 g) – eight years to 11 years’ imprisonment.
(d)Band four – supplying very large commercial quantities (500 g or more) – ten years to life imprisonment.
[20]The quantity of methamphetamine involved in your offending, namely
14.9 kilograms, far exceeds these bands. Nevertheless, your offending properly falls into band four. The Court in Fatu commented in this regard:
[33] … Where the quantity concerned is in excess of 500 grams, we would see the appropriate starting range as being ten years imprisonment or more.
16 Sentencing Act 2002, s 84(2).
17 R v Fatu [2006] 2 NZLR 72 (CA).
18 At [34].
Longer sentences will be appropriate where the quantities are appreciably larger, to reflect the fact that dealing in methamphetamine now potentially attracts a life sentence.
[21] I must refer to the relevant aggravating features of your offending. Section 9(1) of the Sentencing Act contains a range of aggravating factors.
[22] First, I will consider your role in the operation. The Crown’s position is that you were the “prime mover” or “Mr Big” of the drug operation. Ms Hogan submits that a starting point in the vicinity of 18 years’ imprisonment is appropriate.
[23] On your behalf, Ms Maxwell Scott accepts that you were the organiser in New Zealand and importer as alleged. But she says it cannot be shown that you were a “Mr Big” in terms of the entire international network. As to the large amounts of cash in your possession, Ms Maxwell Scott says that you brought significant sums of cash with you when you returned from Thailand in September 2015, having engaged in several profitable businesses over there. However, I note that the summary of facts that you signed acknowledges that there was $257,000 of unexplained cash. Ms Maxwell Scott ultimately submits that a starting point in the region of 17 years’ imprisonment is appropriate.
[24] Ultimately, I will sentence you on the basis that you were as described in the summary of facts which, as I have said, you accepted when you pleaded guilty. You were the organiser of the importation and distribution of methamphetamine. I note the comments of Asher J in relation to those at the top of a drug syndicate:19
[21] … for those who are high in the chain of importation, the quantity and value is of prime importance. This is because the prime movers know exactly how large the importation is, and it can be assumed that they will be the persons who will be rewarded by the fruits of the importation. So they have the most express knowledge of scale, the damage that can be caused to the community and the profit to themselves. Where offenders are at a low level in the chain of command, then amount and value as aggravating factors, while still of importance, are less central.
19 Tilialo-Staples v Police [2013] NZHC 1255.
[25] Therefore, as the Court of Appeal in Fatu noted, “[t]hose who are the 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”.20
[26] You had possession of 14.9 kilograms of methamphetamine, which is almost 30 times greater than the amount at which band four begins to apply.
[27] I must take into account the commerciality of the offending which is illustrated by the quantity and value of the methamphetamine involved. 14.9 kilograms of methamphetamine at 80 per cent purity had a potential value of $14,900,000.
[28]The Crown refers to two cases which I briefly summarise.
[29] In R v Huang,21 the appellant was found guilty of possession of eight kilograms of methamphetamine for supply, and of conspiring to supply methamphetamine. Clifford J had adopted a starting point of 12 years and six months’ imprisonment in respect of the supply charge, which was sixteen times greater than the amount contemplated in band four of Fatu. On appeal, the Court of Appeal upheld that starting point.22 This was despite the fact that the appellant was a courier with no knowledge of the quantity of drugs involved.
[30] In R v Yim,23 the defendant pleaded guilty to one charge of possession of methamphetamine for supply. Police investigations into the importation of 39 kilograms of methamphetamine had led them to the defendant. He was found in possession of one kilogram of methamphetamine and large quantities of cash, which he had been entrusted with holding on behalf of others. Venning J accepted that the defendant had a lesser role, but that it was important to the overall operation.24 He adopted a starting point of 14 years’ imprisonment.25 The eventual end sentence was
20 At [31].
21 R v Huang [2008] NZCA 46.
22 At [56].
23 R v Yim [2017] NZHC 702.
24 At [14].
25 At [14].
11 years and six months’ imprisonment.26 The Court of Appeal upheld both the starting point and end sentence on appeal.27
[31] I must also, under the parity principle, consider the sentence imposed on Mr Uputaua, who pleaded guilty to the same charge of possession of 14.9 kilograms of methamphetamine for supply. Lang J adopted a starting point of 15 years’ imprisonment, noting that Mr Uputaua played a lesser role than you and others higher in the syndicate, but nevertheless still an important one.28
[32] Therefore, consistent with the cases I have mentioned and the principle of parity, and taking into account your role in the offending, I adopt a starting point of 18 years’ imprisonment.
Uplift
[33] The Crown submits that a total uplift of around two to three years’ imprisonment to reflect the additional charges of possession of cocaine for supply and importation of methamphetamine is appropriate. In respect of the cocaine charge, the Crown notes the fact that cocaine is a different type of class A drug and has a different market. The Crown submits that this charge could warrant a starting point in the region of ten years’ imprisonment if you were being sentenced separately on this offence.
[34] On your behalf, Ms Maxwell Scott accepts that an uplift is warranted, but submits that it should be two years’ imprisonment in total for the remaining two charges.
[35] In the sentencing of Mr Uputaua, Lang J applied an uplift of one year’s imprisonment on two charges of being in possession of a combined nearly 2 kilograms of cocaine for supply.29 One of those charges was the same charge to which you have pleaded guilty. The second charge related to 31.7 grams of cocaine found at Mr Uputaua’s address.
26 At [23].
27 Yim v R [2017] NZCA 421 at [9], [11], [19].
28 R v Uputaua, above n 11, at [2].
29 R v Uputaua, above n 11, at [3].
[36] Having regard to your more senior role in the operation, and although you face one charge and not two in relation to the cocaine, I consider that an uplift of one year’s imprisonment is appropriate for this charge.
[37] Finally, there is the charge of importing 1.362 kilograms of methamphetamine. This also falls within band four of Fatu,30 and the Crown submits this charge alone could attract a starting point in the region of 15 years’ imprisonment.
[38] In the sentencing of Mr Uputaua, Lang J applied an uplift of two years’ imprisonment on the two charges of attempting to import a combined 1.65 kilograms of methamphetamine, where again Mr Uputaua’s role was less than your one in your offending.31
[39] I consider that an uplift of two years’ imprisonment is appropriate here in relation to the importing charge.
[40] The total uplift, therefore, for the two additional charges is three years’ imprisonment.
Overall starting point
[41]I therefore reach an overall starting point of 21 years’ imprisonment.
Personal circumstances
[42] I now need to consider your personal circumstances to see whether I should adjust your starting point.
[43]Before I do so, I note the remarks of the Supreme Court in Jarden v R:32
[12] … in sentencing those convicted of dealing commercially in controlled drugs the personal circumstances of the offender must be subordinated to the importance of deterrence. But this does not mean that personal circumstances can never be relevant.
30 At [36].
31 R v Uputaua, above n 11, at [2].
32 Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612.
Previous convictions
[44] You are 55 years of age. You have several historical convictions for violence in New Zealand, dating between 1979 and 1987. It appears that since then you have lived primarily in Australia and Thailand. Your criminal history in Australia does not contain any convictions for drug offending. The Crown does not seek an uplift for your criminal history. I agree that one is not warranted. You have no prior convictions for drug offending.
Age
[45] You submit that as you are 55 years of age, a significant term of imprisonment will inevitably result in you spending a substantial part of your remaining life in custody. You submit that this will make the term of imprisonment particularly severe. In her submissions on your behalf today, Ms Maxwell Scott has referred to the fact that your wife and children are in Australia, and you wonder whether you will ever see them again.
[46] The Court of Appeal’s decision in M (CA91/2012) v R is the leading case on the availability of discounts for age:33
[52] Issues of age and ill health are to be taken into account in the sentencing exercise to the extent they are applicable and if not recognising them would render an otherwise appropriate sentence disproportionately severe.
…
[54] A review of the case law in this area, which is extensive, establishes that the extent to which age and ill health can be treated as mitigating factors and the amount of discount given for that varies according to the particular circumstances of the offender and the offending. There is no discernible pattern, because both the circumstances of the offender and of the offending are so varied. Generally however the reductions given are limited. Whether a discount is appropriate and the amount of a discount is a matter of fact and degree and turns on particular circumstances of the case.
[47] Here, I do not consider a discount for your age is appropriate. In my view, there is no evidence that imprisonment will have a disproportionately severe effect on you because of your age.
33 M (CA91/2012) v R [2013] NZCA 325.
Remorse
[48] The author of your pre-sentence report indicates that you have expressed remorse for your offending. He says you know what the harm of those drugs would have been, and that you let your family, friends and the New Zealand public down. However, you were unwilling to speak much about the offending so the report writer assessed your remorse as questionable. Ms Maxwell Scott does not seek a specific discount for remorse and, in my view, such a discount would not be appropriate in the circumstances.
[49] In the case of Mr Uputaua, there was a letter to the Court expressing remorse. Although in the end Lang J did make a small reduction of six months to the end sentence for Mr Uputaua, I am not prepared to do so in your case. I do not see genuine remorse.
Guilty plea
[50] You are entitled to a reduction in your sentence for your guilty plea.34 But any reduction cannot exceed 25 per cent.35 In this regard, the Supreme Court in Hessell v R stated:36
[75] … Whether the accused pleads guilty at the first reasonable opportunity is always relevant. But when that opportunity arose is a matter for particular inquiry rather than formalistic quantification. A plea can reasonably be seen as early when an accused pleads as soon as he or she has had the opportunity to be informed of all implications of the plea.
[51] Ms Hogan for the Crown acknowledges that you are entitled to a substantial discount for your guilty plea. Ms Maxwell Scott submits the full discount of 25 per cent is appropriate.
[52] Whether you are entitled to the full 25 per cent discount turns on whether you pleaded guilty at the “first reasonable opportunity”.37
34 Hessell v R, above n 12, at [73].
35 Hessell v R, above n 12, at [75].
36 Hessell v R, above n 12.
37 Hessell v R, above n 12, at [75].
[53] You entered your guilty plea on the morning of the trial, after some change in circumstances. On the Friday before your trial, you became aware that evidence from your co-offender, Ms Matthews, would be admissible against you. That significantly changed the weight of evidence against you.
[54] In these circumstances, I accept that you pleaded guilty at the first reasonable opportunity meaning that you are entitled to the full 25 per cent discount.
End sentence
[55] Applying a 25 per discount to the starting point of 21 years’ imprisonment, I reach an end sentence of 15 years and nine months’ imprisonment.
Minimum period of imprisonment
[56] Section 86(2) of the Sentencing Act provides that the Court may impose a minimum period of imprisonment of more than one-third of the total sentence if it is satisfied that a one-third period would be insufficient in:
(a)holding the offender accountable for the harm done to the victim and the community by the offending:
(b)denouncing the conduct in which the offender was involved:
(c)deterring the offender or other persons from committing the same or a similar offence:
(d)protecting the community from the offender.
[57] The Crown seeks a minimum period of imprisonment of at least 50 per cent and refers to a recent judgment of the Court of Appeal in Mok v R.38
[58] Mr Le’Ca, you were a pivotal member of a methamphetamine importation operation. It involved a significant amount of methamphetamine, which had the
38 Mok v R [2017] NZCA 537 at [13]-[14].
potential to cause serious harm to the community. A minimum period of imprisonment is appropriate here for those reasons.
[59] I note that in respect of Mr Uputaua, Lang J imposed a minimum period of imprisonment of 49 per cent.39
[60]In your case, I impose a minimum period of imprisonment of 50 per cent.
Sentence
[61]Mr Le’Ca would you please stand.
[62] On the charge of being in possession of 14.9 kilograms of methamphetamine for supply, you are sentenced to 15 years and nine months’ imprisonment. You are ordered to serve a minimum term of seven years and 10 months’ imprisonment on that charge before being eligible for parole.
[63] On the charge of being in possession of 1.923 kilograms of cocaine for supply, you are sentenced to seven years’ imprisonment. That sentence will be served concurrently with the lead sentence on the charge of possession of methamphetamine for supply.
[64] On the charge of importing 1.362 kilograms of methamphetamine, you are sentenced to seven years’ imprisonment. That sentence will also be served concurrently with the lead sentence on the charge of possession of methamphetamine for supply.
[65]Stand down.
Gordon J
39 R v Uputaua, above n 11, at [15].
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