R v Lidder
[2020] NZHC 1738
•17 July 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-004-008295
[2020] NZHC 1738
THE QUEEN v
HARPREET LIDDER
Hearing: 17 July 2020 Appearances:
H Steele and C McDiarmid for the Crown
J D Munro and J N Olsen for the Defendant
Judgment:
17 July 2020
SENTENCING NOTES OF DUFFY J
R v LIDDER [2020] NZHC 1738 [17 July 2020]
Introduction
[1]Harpreet Lidder, you appear for sentence today after pleading guilty to:
(a)importing the class A drug methamphetamine;1
(b)possessing the class A drug methamphetamine for the purposes of supply;2
(c)importing the class B drug MDMA;3 and
(d)possessing the class B drug MDMA for the purposes of supply.4
What happened
[2] In August 2019, the New Zealand Customs Service commenced Operation Manta to investigate the suspected importation of controlled drugs through a New Zealand company; NZ Importing Group Ltd. Between 6 August and 18 August 2019 NZ Importing Group Ltd imported six separate consignments into New Zealand. The first five of these were not examined by New Zealand Customs but the sixth was and was found to contain 469 kilograms of methamphetamine concealed within large electric motors.
[3] You are associated with the importation of the fifth consignment only. You are a Canadian national who arrived in the country on 28 April 2018. Almost a year later on 18 June 2019 you rented a storage unit. On 25 June 2019 the fifth consignment was imported to New Zealand weighing 316 kilograms and declared to Customs to be electric transformers. On 1 July the fifth consignment was delivered to your rented storage unit and signed for by you. You had also rented a truck and on that same day you loaded the fifth consignment onto the truck and departed the storage facility.
1 Misuse of Drugs Act 1975, ss 6(1)(a) and 6(2)(a). Maximum penalty life imprisonment.
2 Sections 6(1)(f) and 6(2)(a). Maximum penalty life imprisonment.
3 Section 6(1)(a) and 6(2)(a). Maximum penalty 14 years’ imprisonment.
4 Section 6(1)(f) and 6(2)(a). Maximum penalty 14 years’ imprisonment.
[4] Between 3 May and 13 August 2019, you made multiple cash deposits into your New Zealand bank account, together they totalled approximately $45,000.
[5] On 5 September 2019, New Zealand Customs and the Police executed a search warrant at your address. You attempted to evade Police, jumping from your balcony onto the roof top of a neighbouring building. You were, however, subsequently apprehended by Police. During the search of your property the Police located among other items, 14.87 kilograms of methamphetamine, 1.998 kilograms of MDMA, a backpack containing cash NZ$56,872.50 and CAD$3,038.00 cash, zip-lock bags, scales and other drug dealing paraphernalia.
[6] On 6 September 2019 a search warrant was executed at your storage unit and uncovered various tools, frequency controllers, a vacuum sealer and gloves, each of which returned positive results for traces of methamphetamine.
[7] It is in relation to this 14.87 kilograms of methamphetamine that you are convicted of both the importation and possession of a class A drug. And it is in relation to the 1.998 kilograms of MDMA that you are convicted of importing and possessing the Class B drug MDMA. The methamphetamine you imported is said to have a street value of approximately $2.4 million, and the MDMA is said to possess a street value of approximately $160,000.
Approach to sentencing
[8] I will now briefly describe the purpose and process of your sentencing today, so that you understand how the Court reaches the sentences it does.
[9] Given the seriousness with which importing both class A and class B drugs is viewed, the main purposes of your sentencing is to denounce your conduct and deter both you and others from engaging in similar drug-related offending.5 In sentencing you I must impose the maximum penalty for your offending if it is among the most serious of cases for which the penalty is prescribed.6 In the case of your offending the most serious charge is the importation of methamphetamine and the maximum penalty
5 Sentencing Act 2002, ss 7(1)(e) and (f).
6 Section 8(c).
I may impose for that offending is life imprisonment. However, I am also required to impose the least restrictive outcome appropriate in the circumstances.7
[10] Following the recent Court of Appeal decision in Moses v R, I must take a two- step approach to sentencing you today. This approach is as follows:8
(a)the first step, following R v Taueki, calculates the adjusted starting point, incorporating aggravating and mitigating features of the offence;
(b)the second step incorporates all aggravating and mitigating factors personal to the offender, together with any guilty pleas discount, which should be calculated as a percentage of the adjusted starting point.
(footnotes omitted).
[11] Finally, I may also impose a minimum period of imprisonment (MPI) that you must serve before you are eligible for parole if I determine one is necessary.
Setting a starting point
[12] I must adopt a starting point that reflects your individual culpability but also operates to both deter and denounce your offending. The Court of Appeal in Zhang v R9 recently set out the new tariff decision for methamphetamine offending, replacing the prior tariff decision, R v Fatu.10 Zhang, sets out five bands of offending demarcated on the quantity of the drug involved in the offending, with band five applying to offending where the quantum exceeds two kilograms. In maintaining quantum-based bands Zhang confirmed the quantity of the drug imported is an important measure of culpability.11 However, the Court of Appeal also emphasised that quantity alone is not determinative of culpability. Rather, setting the starting point involves a full evaluation of the role of the offender.12
[13] The current offending involved a single importation of 14.87 kilograms of methamphetamine, placing the offending quite clearly in band five and warranting a
7 Section 8(g).
8 Moses v R [2020] NZCA 296 at [46].
9 Zhang v R [2019] NZCA 507.
10 R v Fatu [2006] 2 NZLR 72 (CA).
11 Zhang v R [2019] NZCA 507 at [104].
12 At [104].
starting point of between 10 years’ and life imprisonment. I must then consider your individual role, as this will operate to fine tune the appropriate starting point within this available range.
[14] To aid in this fine-tuning process the Court of Appeal in Zhang identified three roles – lesser; significant; and leading – and listed features that will often be present for offenders that fit within that particular role. With regard to these Mr Steele, for the Crown, submits that you played a significant role as you came to New Zealand as part of an international drug syndicate and not only did you receive and extract the imported methamphetamine, the items located at your address suggest that you were also involved in the packaging and in arranging the distribution. Mr Steele submits you were motivated to carry out this operational role by the prospect of financial gain.
[15] On the other hand, your counsel, Mr Munro, submits that your role falls toward the higher end of the lesser category as you merely performed a function within a larger chain; had no influence on others within the chain; were powerless to withdraw from the offending; and had no idea of the large scale of the operation. Mr Munro acknowledges that you were in part motivated by financial gain but says that ultimately you were naïve and exploited by others situated above you in the chain.
[16] Having regard to your offending I am satisfied that you were motivated to participate in the importation of methamphetamine for your own financial gain, and that such gain was subsequently realised as evidenced by the various bank deposits you made. Your role, as both counsel have described, was to come to New Zealand, receive the controlled drug, extract it and package it for supply. You may also have had some involvement in the supply, however, there is inadequate evidence to confirm this and I put that to the side. You were indeed a link in a larger chain, or a cog in a much larger machine, the exact size of which, I accept, you were not aware. I am satisfied you were unaware of the full extent of the importation, I am satisfied you did not organise the importation as occurred in Zhang. I am also satisfied you possessed little autonomy of your role and exercised no control over anybody else in the chain. As such, I see your role as falling toward the upper end of lesser category in Zhang.
[17] Both Crown and defence counsel have also provided me with a number of comparative cases to assist in establishing a starting point that is consistent with previous methamphetamine-related sentences. In particular, counsel have referred me to Zhang,13 Pai,14 Culter15 and Berkland.16
[18] With regard to those cases Mr Steele submits that your offending is more serious than that in Zhang as the various bank deposits you made as well as the significant sums of cash found at your address suggest that you may have also played a role in the supply phase of the operation, however, he says that your offending is less serious than that in Berkland as there is significantly less evidence of you playing an active role in supplying the drug. As a result, he says that a starting point of 15 and a half years’ imprisonment is appropriate.
[19] Mr Munro agrees with Mr Steele that your role was more serious than that in Pai, that is in terms of your involvement in packaging the drugs and travelling to New Zealand. However, it became clear to me from what he said in Court today that he considers your involvement less serious than in Pai in the sense that the quantity of the methamphetamine in Pai was 22.6 kilograms and there was a higher involvement
13 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648. Mr Zhang was sentenced for one charge of importing 17.9 kilograms of methamphetamine. Soon after arriving in New Zealand Mr Zhang received a parcel containing 17.9 kilograms of methamphetamine, which was intercepted by New Zealand Customs and became subject to a controlled delivery. After the parcel was delivered Police executed a search warrant at Mr Zhang’s address and uncovered the methamphetamine as well as various drug-dealing paraphernalia. The Court of Appeal deemed Mr Zhang’s offending to fall at the lower end of significant as he served an operational function in the chain, travelling to New Zealand to receive the package and then taking steps to prepare the drug for packaging. Mr Zhang was more than just a catcher but there was no evidence to show he was taking part in the supply or that he had any role directing others in the chain. For his offending he received a starting point of 15 years’ imprisonment.
14 Pai v R [2020] NZCA 146. Mr Pai travelled to New Zealand on holiday, rented a house and while there received a shipment which had concealed 22.6 kilograms of methamphetamine. Mr Pai was only involved in the importation. In the High Court he received a starting point of 18 years’ imprisonment, however, on appeal the starting point was reduced to 15 years’ imprisonment.
15 Culter v R [2019] NZHC 2737. Mr Culter received four packages containing 2.5 kilograms of methamphetamine. Police and Customs installed surveillance devices that revealed Mr Culter removing the drugs, packaging them and delivering them. When Police executed the search warrant the methamphetamine was gone and in its place was over $1 million in cash. Mr Culter was said to be a distributor of a significant quantity of methamphetamine and had a fair degree of autonomy in his role. Mr Culter received a starting point of 12 years’ imprisonment.
16 Berkland v R [2020] NZCA 150. Mr Berkland was sentenced for purchasing 15 kilograms of methamphetamine for the purposes of supply as well as various other drug and firearms charges. Mr Berkland was a senior member of the mongrel mob and together he and his co-offender supplied methamphetamine on a commercial basis. Mr Berkland was considered to be the right- hand man and his role fell towards the upper end of significant. Mr Berkland received a starting point of 16 and a half years’ imprisonment.
in the sense that Mr Pai had direct involvement with the leader of the operation, whereas you did not. Although Mr Munro agrees that your role is comparable to that of Mr Zhang, he ultimately submits that your role was less serious as you did not take part in arranging the importation of the drugs into New Zealand. On this basis Mr Munro submits that a starting point of between 12 and 13 years’ imprisonment is appropriate.
[20] I have found the comparisons made by counsel to be a helpful cross-check in setting your starting point. I have had recourse to the various cases I have mentioned and I agree that your offending is similar to that of Mr Zhang in Zhang. You, like Mr Zhang, carried out an operational role, importing, extracting and packaging. However, I agree with Mr Munro that you were less involved in the importation than Mr Zhang and the quantum you imported was also less than that imported by Mr Zhang. I also agree with Mr Munro that your offending was clearly less serious than in Culter and Berkland. As to how it is to be rated against Mr Pai’s offending, there is the fact that you came to New Zealand and you packaged the drugs, which is more serious than Mr Pai, but on the other hand Mr Pai was involved with a higher level of importation and he clearly knew more about the operation through his direct contact with the leader. So, on balance, it is difficult to say whether your case is more serious than Mr Pai’s or not, perhaps the outcome is neutral.
[21] With the cases and remarks in mind and bearing in mind also that whereas looking at comparable cases can help, ultimately it becomes a decision based on the circumstances of your offending. I am satisfied that a starting point of 14 and a half years’ imprisonment is appropriate. I now turn to adjusting the starting point.
Adjusting the starting point
[22] In setting the appropriate starting point I must consider the totality of your offending, including the remaining charges of possessing methamphetamine, importing MDMA and possessing MDMA. Both counsel submit that it is appropriate that I uplift the starting point by one year to reflect this additional offending. I agree that such an uplift is appropriate.
[23] I can see no other aggravating or mitigating factors relating to your offending that would warrant any further adjustment to the starting point. Accordingly, that brings a global starting point to 15 and a half years’ imprisonment.
Aggravating and Mitigating features
[24] I now reach the second step of the sentencing exercise; that involves determining whether the starting point I have adopted requires adjustment to reflect either aggravating or mitigating factors personal to you, and any credit you ought to receive for the guilty pleas you entered.
[25] There are no personal aggravating factors relevant to your sentencing today, so I shall move on to address the various mitigating factors your counsel has put forth.
[26] First, Mr Munro submits that you ought to be entitled to a deduction of 10 per cent to reflect your prior good character as you have no prior convictions and this Court has received a number of letters from your family members attesting to your good character. Mr Steele agrees that a 10 per cent deduction is appropriate to reflect this, as do I.
[27] Secondly, Mr Munro contends that a further deduction of five per cent is warranted to reflect your youth, remorse and the difficulties you face as a foreign national incarcerated in New Zealand.
[28] In regard to your age, Mr Munro acknowledges that you are not technically a youth, being 24 years old at the time of the offending, but that you at a young age were vulnerable to pressure and that a lengthy sentence would be crushing for you and for your rehabilitative prospects. I acknowledge that you were likely naïve to the ins and outs of serious drug-related offending at the time and this made you vulnerable to exploitation. This may have arisen from your naivety as a first-time drug-offender but your relatively young age and therefore lack of life experience may also have been a contributing factor. Accordingly, I propose to take your young age and naivety into account when setting a discount.
[29] Mr Munro then points to the letter you have provided to this Court expressing your remorse for your offending. He says that it is illustrative of the insight you have subsequently gained into the gravity of the offending and your genuine remorse. Mr Munro also refers to the fact that as all your family are located overseas, serving a sentence in New Zealand will be hard for you and this difficulty is only exacerbated by the current border restrictions put in place due to Covid-19.
[30] I have reviewed your letter to this Court and accept that you have expressed some remorse for your offending, but I am sceptical that you were unaware of the impact of methamphetamine offending prior to your conviction on the current charges. I also note that the genuineness of your remorse is to be assessed in light of the Provision of Advice to the Court which reported that you minimised your involvement in the offending saying that you were duped or tricked into participating and claimed that you were unaware you were importing methamphetamine – you say that you thought it was cannabis. Your pleading guilty to the charge of importation of methamphetamine without going to a disputed facts hearing, means you accept what is set out in the summary of facts and it means that you accept that you knew you were importing methamphetamine into this country. On this basis any discount for your remorse must be limited. In regard to the difficulty you will face in prison in New Zealand this discount must also be limited as although you will be isolated from your family you are familiar with the language of this country.
[31] Accordingly, a deduction of five per cent is appropriate to reflect your young age, naivety, your remorse and any difficulty you may face as a foreign national.
Guilty plea discount
[32] At this point I now turn to the consideration of the guilty plea and the deduction that is available to you. Counsel on your behalf has sought a deduction of 25 per cent and the Crown does not oppose this.
[33] In Hessell v R the Supreme Court upheld the principle that a reduction of up to 25 per cent will be available for an early guilty plea.17 The appropriate deduction is
17 Hessell v R [2010] NZSC, [2011] 1 NZLR 607 at [75].
to be assessed in light of all the circumstances, including the timing of the plea and the strength of the prosecution case.18 In your case I am satisfied the full deduction of 25 per cent is warranted.
[34] This results in deductions totalling 40 per cent: (a) 10 per cent for prior good character; (b) five per cent for your age and lack of life experience, remorse and for your status as a foreign national; and (c) 25 per cent for your guilty pleas.
[35] Applying these deductions to the adjusted starting point of 15 years and six months gives rise to an end sentence of nine years and three months’ imprisonment.
Minimum period of imprisonment
[36] The final part of the sentencing exercise is to determine whether a MPI period is necessary. This Court may impose a MPI where it is satisfied that it is necessary for the purposes of accountability, deterrence or denunciation.19 Where an offender’s end sentence is finite the MPI this Court may impose is capped at 10 years.
[37] Mr Steele seeks a MPI of 50 per cent due to your “knowing participation in substantial, commercial-scale drug offending with potentially very serious social consequences…”. Mr Steele also says that not setting a MPI would send an unacceptable message to those participating or minded to participate in commercial- scale drug offending.
[38] Mr Munro opposes the imposition of any MPI on the basis that one is not necessary in this case and in his written submissions Mr Munro submitted that Mr Steele had not actually put forward any reasons for why a MPI was required in this case.
[39] As I said, a MPI may only be imposed for the purposes set out at s 86 of the Sentencing Act 2002. Although Mr Steele did not directly advanced any of those purposes, in his written submissions he expanded on this in his oral argument. It is
18 Hessel at [77].
19 Sentencing Act 2002, s 86(2).
clear that he considers a MPI is necessary both to deter and denounce your offending and to deter others from offending in the same way. Mr Steele submitted that I should follow, as was done in Zhang and in Pai, where minimum periods of imprisonment were imposed.
[40] I note however, that Zhang has introduced a fresh approach of looking at sentencing for serious drug offending and in Zhang the Court of Appeal said that sentencing courts must not apply MPIs as a matter of routine or in a mechanistic way. It was said at [169], [171] and [174]:
It is not sufficient for a Judge simply to recite s 86 without more. A reasoned analysis is required both as regards the imposition of a minimum period of imprisonment and its length.
[41] There has been an attempt at a reasoned analysis today, but despite hearing the arguments from Mr Steele, I am still left in a situation where I am satisfied that in the circumstances of this case you were not fully aware of the scale of the importing operation. The sentence I have arrived at, in my view, is sufficient to meet the purposes of denunciation and deterrence. Accordingly, I do not propose to impose a MPI and as a result you will be eligible for parole after serving one third of your sentence, that being approximately three years and two months’ imprisonment. Whether you are granted parole then, or not, is a matter for the Parole Board to determine.
[42] On the other charges you will receive sentences of shorter durations to be served concurrently with the lead sentence.
[43] The Crown also seeks orders for cash that was found at your address at 6A/8 Quay Street, Auckland and for the destruction of certain substances and items etc, that were found at that address and at the storage unit. Those items are set out at paragraphs 12 and 11 of the summary of facts. Where the summary of facts introduces those items as including things found at the address, I propose to treat it as exhaustively listing them. I will go through those when I come to impose the sentence.
[44] Section 32(1) and s 32(3) of the Misuse of Drugs Act 1975 provides that on conviction I can if satisfied that substances, materials and equipment seized by Police are related to the offending, order their forfeiture and I can do the same in relation to
cash sums. Because you dispute the Canadian dollar sum of CAD$3,038, that will be left for another date to be determined.
Sentence
[45]Having completed the sentencing exercise, I now ask you to stand, Mr Lidder.
[46] On the charge of importing methamphetamine, I sentence you to nine years and three months’ imprisonment.
[47] On the charge of possessing methamphetamine for supply, you are sentenced to seven years’ imprisonment.
[48] On the charge of importing the class B drug MDMA, you are sentenced to six years’ imprisonment.
[49] On the final charge of possessing the class B drug MDMA for the purposes of supply, you are sentenced to six years’ imprisonment.
[50] Each of these finite sentences is to be served concurrently with the lead sentence for importing methamphetamine. This means the ultimate sentence will be determined by the nine years and three months’ imprisonment for that offence.
[51] I order the destruction of the zip-lock bags, two sets of electronic scales, a cash counting machine, a heat sealing machine with a roll of plastic bags, two mobile Smart phones, goggles, gloves – found at the address at 6A/8 Quay Street, Auckland by Police on 5 September 2019.
[52] I order the destruction of two dismantled seaman’s adjustable frequency controllers, a tool-box, various tools, screw drivers, an angle grinder, chain saw, a vacuum sealer and various gloves – found at the storage unit that the Police searched on 6 September 2019.
[53]I order the forfeiture of the cash NZ$56,872.50.
[54]Mr Lidder, you may stand down.
Duffy J
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