R v Navarro
[2021] NZHC 593
•19 March 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-004-6965
[2021] NZHC 593
THE QUEEN v
MICHAEL EUGENIO NAVARRO
Hearing: 19 March 2021 Appearances:
J T Parry & A J A Gee for Crown M W Ryan for Defendant
Sentence:
19 March 2021
SENTENCE OF PAUL DAVISON J
Solicitors:
Crown Solicitor, Auckland
R v NAVARRO [2021] NZHC 593 [19 March 2021]
[1] Michael Eugenio Navarro at age 27 years and having earlier pleaded guilty to one charge of possession of the Class A controlled drug methamphetamine, for supply, you appear before the Court this morning for sentencing.1 Your offending relates to the 109.6 kilograms of methamphetamine which was found by Police and Customs to be in your possession.
Your offending
[2] You have visited New Zealand three times. You came here in October 2018 and in April and May 2019. In each case you declared that you were here for a short holiday.2 On 29 May 2019, two days before departing New Zealand at the end of your second visit here, you arranged for the windows of a residential unit situated at Chonny Crescent in Manurewa to be tinted. You then departed to return to Australia on 31 May 2019.
[3] On your third visit you arrived in Auckland on a flight from Sydney on 30 June 2019, this being a fortnight after your co-offender, Mr Tran, had also arrived here from Australia. On this occasion when questioned by Customs you told them that you would be in New Zealand for a couple of weeks to visit a sick relative. You were unable to provide that relative’s address or their contact details.
[4] On 22 July 2019 you and Mr Tran travelled together to the Chonny Crescent address in a medium sized truck that Mr Tran had rented some two days previously. Later that same day, Mr Tran drove the rental truck to storage unit premises in Merton Road, St Johns where he went to and accessed a storage unit. The following day Mr Tran picked you up from your accommodation, and later that same day you and he went to a Warehouse store and purchased some high-visibility vests.
[5] The following day 24 July, you and Mr Tran went together to the Bunnings Warehouse store in New Lynn where you purchased items of protective wear and a
1 Misuse of Drugs Act 1975, ss 6(1)(f) and 6(2)(a). Maximum period of imprisonment: life.
2 Trip 1: arriving on 22 October 2018, declaring you would stay for 18 days — for a holiday, then departing New Zealand for Australia on 7 December 2018. Trip 2: arriving on 4 April 2019, declaring you would stay for one month — for a holiday, then departing New Zealand for Australia on 31 May 2019.
circular saw. You then drove to the Chonny Crescent address where you went inside for about an hour, before departing and travelling to a residential address in Avondale where you and Mr Tran were at that stage both staying.
[6] On 25 July 2019 Police and Customs executed search warrants at the Chonny Crescent and Avondale addresses, and at the storage unit that had been accessed by Mr Tran and the vehicles which were being used by you and Mr Tran, including the truck and another motor vehicle.
[7] At the Chonny Crescent address the Police located 126 plastic pallets, two of which had been partially deconstructed, revealing small specially designed compartments containing a compressed powdered substance. Spread throughout the address were various power tools and hand tools, extraction equipment and containers. Also located were electronic scales, gloves, plastic zip-lock bags, boxes of aluminium foil and plastic zip-lock containers containing residue. In a locked room inside the address Police located clandestine laboratory equipment including: gas bottles; a double burner hot plate; Pyrex dishes and jugs; and various other items. Also located in the locked room were four A4 sized zip-lock bags of white powder extracted from the plastic pallets. The white powder tested positive for methamphetamine.
[8] All of the 126 pallets were examined and 51 of them were found to contain concealed methamphetamine. When those pallets were deconstructed and examined by Customs, each was found to contain 95 cubes wrapped in plastic which contained methamphetamine. On examination by the Institute of Environmental Science and Research (ESR) the methamphetamine was found to be of 80 per cent purity, and the average weight of the methamphetamine concealed in each pallet was two kilograms. The total weight of methamphetamine recovered from the pallets weighed 102 kilograms. The powder in the four A4 zip-lock bags was also found to be methamphetamine of 80 per cent purity having a total weight of 7.6 kilograms. The total amount of methamphetamine located and seized therefore being 109.6 kilograms.
[9] The potential street value of the methamphetamine located at the Chonny Crescent address is estimated by Police to be approximately NZ$7,000,000.
[10] Police located and arrested you at the Avondale address on the occasion that the search warrants were executed. It appeared from the items found at the address that you and Mr Tran had both been staying there. Included amongst your possessions located there, was your backpack which contained a large amount of cash as well as a New South Wales driver’s licence with your photograph on it, although not your own name. Another large amount of cash was found hidden inside the dishwasher at that address.
[11] The storage unit in Merton Road that Mr Tran had accessed was found by Police to be empty, although on the floor were pieces of New Zealand Customs tape.
Personal circumstances and background
[12] The pre-sentence report prepared by the Department of Corrections states that you have no history of criminal offending either in New Zealand or Australia. However, I note that a New South Wales Police report obtained shortly after that pre-sentence report was written, records that you do have quite a number of convictions in Australia for driving related offences and several for the possession of prohibited drugs and equipment for administering prohibited drugs. I am told by your counsel that those convictions which related to the drug offences arose from cannabis related circumstances and possession of cannabis.
[13] You were born and raised in Sydney amongst your immediate and extended family which had its origins in Chile. Before coming to New Zealand and your involvement in this offending, you had worked in a landscaping business operated by one of your relatives for some five years before leaving to work for another landscaping firm. An associate offered you some work in New Zealand that would take two months and for which you would be paid $10,000. You say that you were told that the work would involve you being responsible for setting up a warehouse, buying machinery, and driving around as required.
[14] You told the author of the pre-sentence report that you were not aware that the work that you were to do involved drugs, and you say that you were “not told the whole story of what was being imported.” However you also say that although you
felt something was wrong, you did not want to look into it. You blame yourself for making some bad decisions, trusting people, and not asking more questions.
[15] I consider that explanation to be totally implausible. Having regard to the amount of money you were to be paid, and the fact that you were making arrangements to have the windows of a residential unit tinted so as to prevent anyone from being able to see what was going on inside the unit, and your activities together with Mr Tran following your arrival, it is clear that you knew what you were involved in and that it was unlawful and in the circumstances the only sensible explanation is that you knew what you were here in New Zealand to do related to drugs.
[16] You also told the author of the pre-sentence report that over the period during which you have been held in custody since your arrest, you have spoken to drug addicts that you have come across and have come to observe what drugs do to people, and that you are now extremely remorseful about your actions and regret your involvement with the drug offending. However I note that the s 27 report which I will refer to shortly in more detail shortly records that one of your brothers has a serious methamphetamine addiction, and you say that because of what you saw methamphetamine had done to him you have never used that drug yourself. It is therefore clear that before you were arrested for this offending you well knew the dreadful effects of methamphetamine upon users, and I do not accept that it has only been since you have had the opportunity of talking to drug addicts while you have been on remand that you have come to appreciate the scourge that methamphetamine is and its destructive effects on users and those close to them.
[17] You say that you now realise how good your life was in Australia, even during the times when you may not have had enough work to do in the landscaping business. You have expressed sadness at being separated from your family, and from other supportive people in your life.
[18] The pre-sentence report assesses you as being at a low to medium risk of re-offending. However, due to the scale and nature of your drug related offending and the potential for your offending to cause harm to multiple victims, you are assessed as being of a medium to high risk of harm to others.
[19] You have adopted a constructive approach to your inevitable sentence of imprisonment, and you are hoping to be transferred to a correctional facility, where you can work using your skills as a landscaper and study towards qualifications in landscaping. You are assessed as possessing a high to moderate degree of motivation to address your actions, and seek to alter the “bad” part of your life and provide yourself with a base for a better life following the completion of your sentence.
[20] Whilst the pre-sentence report notes that given the seriousness of your offending a sentence of imprisonment is inevitable, it also notes that you could benefit from attending at counselling and programmes that would address your attitudes and criminal associations.
Section 27 Cultural Background report
[21] I have also read and considered the s 27 report detailing and commenting on your personal, family and cultural background, which was obtained by your counsel for the purpose of providing the Court with detail of your background as it may relate to your offending.
[22] The author Ms Shelley Turner says that in her opinion there is a demonstrative nexus between your background and your present offending which mitigates your moral culpability. You were born in Sydney, Australia, after your parents and four older siblings emigrated to Australia from South America. Your mother’s return to Chile following your parents’ separation when you were five years old appears to have had a significant effect on your life. While your mother subsequently returned to Australia some six years later, Ms Turner observes that her absence over that period caused you to develop a sense of abandonment which had a negative impact on you, contributing to you developing an inability to trust people and build sustainable relationships. As a child and a young teenager you were often left unsupervised, and you began using cannabis on a daily basis when aged 13 and continued until you were 21 years old. After frequent truancy during the previous two years, you left school at age 15 without any formal academic qualifications and poor prospects of employment. Ms Turner comments that your early use of cannabis may well have impacted on your
ability to make decisions for yourself, and contributed to you having made unhealthy life choices.
[23] To your credit, Ms Turner notes that you appear to have taken responsibility for your actions, and you do not seek to blame anyone else for your present circumstances.
[24] While Ms Turner reports that she is unable to determine a strong causal nexus between your background and your offending, in her opinion the abandonment you experienced when your mother returned to Chile for six years, and your history of daily cannabis use between the ages of 13 and 21 and its effect on your decision making could be considered to be causative factors in your offending. Ms Turner says that in her opinion there is a demonstrative nexus between your background and your offending which she considers mitigates your moral culpability, as I have said.
Approach to sentencing
[25] I will commence the sentencing by determining an adjusted starting point for your offending, in accordance with the Court of Appeal’s guidance in the case of Zhang v R.3 In that decision, the Court of Appeal established five bands into which methamphetamine-related offending can be placed, having regard to the quantity of drug involved in the offending, and it set out the range of potential penalties for offending in each band. The Court confirmed that the quantity of the illegal drug is an important measure of culpability, as quantity is an indicator of the commerciality and of the harm it will cause to the community.4
[26] However, the quantity of the methamphetamine is not the sole determinant of culpability. I must also carefully consider your particular role in the offending. In Zhang, the Court of Appeal divided the role played by offenders into three categories:5 lesser, significant, and leading. The nature of the role you played in the course of your offending will also inform my assessment of the gravity of the offending, and where
3 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
4 At [104].
5 At [126].
it should be placed within the relevant band for the purpose of determining the appropriate sentence for your offending.
[27] Once I have determined the adjusted starting point, I will then adjust that starting point to take account of the aggravating and mitigating factors personal to you, as well as your guilty plea.6 By this process I will arrive at the end sentence to be imposed.
[28] I will also consider whether a minimum period of imprisonment should be imposed, pursuant to s 86 of the Sentencing Act 2002.
Sentencing purpose and principles
[29] The purposes of sentencing you Mr Navarro are to hold you accountable for the harm done to the community by your offending and to promote in you a sense of responsibility for and an acknowledgment of that harm.7 The sentence to be imposed is also intended to denounce your conduct and to deter you and any other person from committing the same or similar offences. In determining the sentence to be imposed I must apply the principles of sentencing set out in s 8 of the Sentencing Act 2002 including having regard to the gravity of your offending and the seriousness of your offending and taking those factors into account, together with the seriousness of the type of offence compared with other types of offences as indicated by the maximum penalties prescribed. Also included within the matters to be taken into account are any particular circumstances relating to you that mean that a sentence that would otherwise be appropriate, would in your case be disproportionately severe.
Crown and defence submissions Starting point
Crown
[30] Mr Parry for the Crown submits that given the quantity of 109.6 kilograms of methamphetamine in your possession for supply, your offending is appropriately
6 Moses v R [2020] NZCA 296.
7 Sentencing Act 2002, s 7.
placed in the higher end of “band five” of Zhang. Mr Parry submits that as it cannot be conclusively determined who was the leader of the New Zealand operation as between Mr Tran and yourself, that you and he should therefore be dealt with as having operated on the same level. Mr Parry submits, that like Mr Tran, your role should be seen to be at the higher end of the “lesser” role category in Zhang. In support of his submission he notes that you travelled to New Zealand specifically for the purpose of dealing with the methamphetamine in the pallets, which demonstrates a level of premeditation. And that is further supported by the fact that you had come to New Zealand on two previous occasions and did not have a legitimate reason for coming on 30 June 2019, when there was in fact no sick relative for you to visit.
[31] Mr Parry also notes that during your second trip, you took steps to prepare the Chonny Crescent address, Manurewa for processing the pallets to extract the methamphetamine, by arranging for it to have its windows tinted. He also notes that you travelled with Mr Tran to the Chonny Crescent address in the medium size rental truck which Mr Tran had rented and which had been used to transport the methamphetamine from a storage unit, to the Chonny Crescent address, which had been prepared.
[32] Counsel also refers to you having purchased power tools with large bundles of cash to carry out your role of extracting the methamphetamine from the plastic pallets. Also relevant to assessment of your role is the drug manufacturing and bagging paraphernalia located at the Chonny Crescent address. The Crown says that having regard to the quantity of drugs involved which you must have had an appreciation of as evident by the significant amount of equipment purchased and required to extract it from the pallets, you clearly must have been aware of the scale of the operation.
[33] The Crown says that while it is clear that you were taking instructions from an overseas syndicate, it does not appear that you had any oversight while in New Zealand and that you were essentially trusted to carry out your role here on your own, that is on your own together with Mr Tran. The Crown says that absence of any oversight and the fact you were trusted to carry out your role in New Zealand in relation to what was a significant commercial drug operation are aspects of your offending that inform
an assessment of your role as appropriately sitting at the high end of the lesser category in terms of role.
[34] Mr Parry also refers me to analogous cases as assistance in setting your starting point.8
[35] The Crown also says that in determining the sentence to be imposed the principle of parity between co-offenders is an important consideration.9 The Crown submits that as your role in the offending was at the same level as that of Mr Tran and of course involved the same quantity of methamphetamine, that the same starting point of 21 years’ imprisonment adopted in Mr Tran’s case should also be adopted in your case. And so, having regard to all of those matters the Crown submits that the appropriate starting point for your offending is 21 years’ imprisonment.
Defence
[36] Mr Ryan on your behalf accepts that your offending falls within band five of Zhang and that the appropriate starting point is between 10 years’ imprisonment and life imprisonment.
[37] Mr Ryan also accepts that your actions in relation to the offending place you in the lesser role category of Zhang albeit at the higher end of the range of culpability within that category. He submits that having regard to the amount of methamphetamine involved and your role in the offending being the same as that of Mr Tran, there is no reason why the same starting point of 21 years’ imprisonment should not be adopted in your case too.
8 R v Leung [2019] NZHC 3299 (in this case where 109 kg of methamphetamine was possessed for the purposes of supply, the two defendants with a “lesser” role, received a sentence start point of 21 years’ imprisonment); and R v Chen [2009] NZCA 445, [2010] 2 NZLR 158 (counsel cautions as this case was decided under Fatu and not Zhang, notwithstanding this, Mr Parry submits the 25 year starting point for charges related to the import and sale of 95 kg of methamphetamine and 154 kg of pseudoephedrine, is illustrative).
9 Sentencing Act 2002, s 8(e).
Mitigating factors
Crown
[38] The Crown submits, that as a foreign national, your serving a term of imprisonment in New Zealand removed from your family and support network is a mitigating factor, as imprisonment here will be harder for you to bear than would be the case for a New Zealand resident.10
[39] As regards the discount to be allowed for your guilty plea, the Crown notes that there was some delay in entering your plea of guilty due to a challenge that you mounted as regards your role in the offending which resulted in the charge of importation initially laid being withdrawn. The Crown submits nevertheless that you entered your plea at the same time or soon after, as was the case with Mr Tran, and that in those circumstances a discount of 25 per cent of your sentence should be made available to you, as it was in the case of Mr Tran.11
[40] The Crown submits that on the basis of other mitigating factors the overall discount for personal aggravating and mitigating factors should not exceed five per cent.
Defence
[41] Mr Ryan submits there are several personal mitigating factors to be taken into account. First, he notes your total lack of criminal convictions. However, as clarified in Court this morning, it appears that you do have a record of some criminal convictions in Australia for drug related offending which, although not of a nature which would warrant any adjustment to the sentence here by way of an uplift, does not enable you to claim to be a first offender without a criminal record.
[42] Mr Ryan further submits that you are genuinely remorseful, as is evident from the contents of your letter to the court. He submits that the documents that he has produced “reflecting the work that [you have] undertaken while remanded in custody”
10 Zhang v R, above n 3, at [162]-[163], citing R v Yung [2017] NZHC 895 at [6]; and R v Yuen [2016] NZHC 571 at [15].
11 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607, (2010) 24 CRNZ 966 at [75].
and the certificates that you have been provided with since you have been on remand showing your work ethic underline your remorse and your motivation and commitment to rehabilitation. Mr Ryan also notes your youth, and says that you have a future ahead of you by reason of your commitment to rehabilitation. He did not suggest a specific discount for those factors.
[43] Mr Ryan does however submit that you should receive a five per cent discount for the fact that you are a foreign national and will suffer difficulties in serving a sentence of imprisonment in a foreign country away from and separated from your family.
[44] Mr Ryan submits that you should be afforded a full 25 per cent discount to reflect the fact your guilty plea was entered early, and he says the plea was entered shortly after negotiations with the Crown regarding their withdrawal of the importation charge.
[45] In summary, Mr Ryan submits that discounts totalling 30 per cent should be applied to your starting point without quantifying any further discounts.
Minimum period of imprisonment
Crown
[46] Mr Parry submits that a minimum period of imprisonment (MPI) is warranted in your case, because:12
[I]t is deterrence, denunciation and accountability that are likely to be at the forefront of decisions in drug cases involving the imposition of a minimum period of imprisonment. That in turn means that as a general rule, lengthy minimum periods of imprisonment are properly reserved for cases involving significant commercial dealing.
[47] The Crown notes that should an MPI not be imposed, you will become eligible for parole after approximately five years in custody. The Crown submits this would be insufficient to meet the four objectives set out in s 86(2) of the Sentencing Act. Mr Parry submits that an MPI of 50 per cent would be appropriate in your case to
12 Zhang v R, above n 3, at [171].
satisfy the interests of parity and to send a message of deterrence to those considering involving themselves in the importation and distribution of methamphetamine.
Defence
[48] Mr Ryan submits I ought not to impose a minimum period of imprisonment upon you, as after taking the proposed discounts into account, the theoretical end-sentence you will serve would be between 14.5 - 15 years’ imprisonment. His submission is that, this lengthy sentence, in and of itself is sufficient as a deterrent to anyone who may become involved in drug offending. He submits that a 15 year sentence is effective to denounce your conduct, to hold you accountable for the harm you have done to the community and to deter others from becoming involved in similar offending.
[49] Mr Ryan realistically accepts that your offending is significant commercial dealing.13 However, he submits your role in the offending is an important consideration in determining an MPI and whether it should be imposed, and that as your offending falls within the “lesser” category, albeit towards the higher end in terms of role, a 15 year term of imprisonment is “stern and condign”, and fulfils the objectives of an MPI. Mr Ryan also submits that if an MPI is not imposed, you are likely to be deported back to Australia when you become eligible for parole after serving one-third of your sentence, being around five years, and that, in your particular circumstances is a further factor telling against the imposition of an MPI.
Discussion
[50] I have had regard to the cases that have been cited to me by the Crown and Defence in setting the starting point,14 and note that Zhang, although a tariff judgment, is not a substitute for “flexibility and discretion in setting sentences”.15 At the outset I note that there is little difference between the submissions of counsel as regards the
13 At [171].
14 R v Tran [2020] NZHC 2633 (co-defendant of Mr Navarro, 109.6kg of methamphetamine, upper level lesser role, 21-year start point). McDonald v R [2020] NZHC 1509 (137.5kg of methamphetamine, low level significant role, first time offender, 23-year start point). R v Leung, (with some attention paid to R v Chen [although I note this was decided under the Fatu guideline decision) both discussed above at n 8..
15 Zhang v R, above n 3, at [120].
appropriate starting point. Both the Crown and Defence submit that the starting point of 21 years is appropriate. As 109.6 kilograms of 80 per cent purity methamphetamine was found in your possession for the purposes of supply, your offending clearly falls within band five of Zhang. In fixing the starting point the real question is that of your role. Recognising the objective of maintaining parity on this issue with your co-offender Mr Tran, I consider that your activities also place you in the “lesser role” category in Zhang terms, albeit at the higher end of the range of culpability within that category. You may initially have become involved in the operation as a result of some naivety on your part and the opportunity presented to you to earn some money when business was slow, but it appears that it was the money to be gained that motivated you to take the risk of becoming involved in offending that I find you knew involved methamphetamine before you commenced your activities here. You were obviously trusted by the organisers of this significant drug operation with handling a large amount of methamphetamine and in doing so without oversight. It is unclear whether Mr Tran was your supervisor, or you were his, or you were working alongside one another without either of you in fact giving instructions to the other. I shall accordingly proceed on the basis your role was the same as his,16 which places you at the more significant end of the “lesser” category and I shall set the starting point in your case at 21 years’ imprisonment, as I did in his case.
Adjustments for personal circumstances
[51] I now turn to adjust that starting point by taking your personal factors into account together with a discount for your guilty plea which will be quantified as a percentage of the adjusted starting point, or a proportion of it.17
[52]I accept that there are some personal mitigating factors applicable to you.
[53] At the time of the offending, you were 25 years old. I note this Court’s and the Court of Appeal’s reference to the former Chief Science Advisor for the Prime Minister’s report, that:18 “recent findings of scientific research indicate that maturation
16 R v Tran, above n 14, at [38].
17 Moses v R, above n 6, at [46].
18 Wan v R [2020] NZCA 328 at [28]; citing Rarere v Police [2012] NZHC 779 at [36]; citing in turn Sir Peter Gluckman, Improving the Transition: Reducing Social and Psychological Morbidity During Adolescence (Office of the Prime Minister's Science Advisory Committee, May 2011).
- among boys especially - is not complete until well into the third decade of life, and that the last functions to mature are those of impulse control and judgment.”
[54] Having regard to your comparative youth at the time of your offending,19 and what I accept to be your genuine remorse as evident from the letter you have written to the Court20 and your constructive steps towards rehabilitation that you have taken since you have been in custody, I shall afford you a five per cent discount from the sentencing starting point.
[55] A lengthy term of imprisonment will be particularly difficult for you. Serving a sentence of imprisonment here in New Zealand means that you will be isolated from your family in Australia. Zhang confirms that this can be treated and dealt with as a mitigating factor for a foreign national.21 However, it is important to note that this is a discretionary consideration and it is a factor that does not justify a discount automatically. I am also mindful of the importance of maintaining parity in sentencing offenders, whether they originate from other countries or from within New Zealand, consistency in sentencing is an important principle.22 There is however appellate guidance saying that “the isolation of, and denial of family support to, foreign nationals imprisoned for drug offending may be treated as a mitigating factor when it makes the sentence harder than usual to bear.”23 The Court of Appeal has observed that “discounts for foreign national status in cases of drug importation have been modest, as the offending is such that it carries an inherent risk of imprisonment for a lengthy period in a foreign country.”24 Taking those matters into account, and on the basis of this guidance, I determine a moderate five cent discount of your sentence on account of that factor discount is appropriate.
19 Sentencing Act 2002, s 9(2)(a). Young people are more vulnerable or susceptible to negative influences and outside pressures, and have greater difficulty regulating their behaviour and impulses, see: Churchward v R [2011] NZCA 531 at [77].
20 Sentencing Act 2002, s 9(2)(f). Remorse is not necessarily shown just by a guilty plea. I note your letter to the court, and your contrition to the pre-sentence report writer, I find that genuine remorse is demonstrated by the defendant, therefore I grant a sentencing discount separately from that for the guilty plea. See: Hessell v R, above n 11, at [64], and Moses v R, above n 6, at [24].
21 Zhang v R, above n 3, at [163].
22 R v Zhou [2009] NZCA 365 at [26].
23 Zhang v R, above n 3, at [163].
24 Keino v R [2019] NZCA 457 at [59].
[56] Turning to your cultural background, I can see a demonstrative nexus between aspects of your background and your offending.25 They go some way to reducing your culpability. I acknowledge that the social deprivation, specifically the sense of abandonment you experienced as a result of your mother’s return to Chile, and how it contributed to your reliance on cannabis and in turn your adverse educational outcomes, leaving you without qualifications and without employment prospects and otherwise vulnerable is a significant factor that appears to have contributed to your involvement in criminality. I note that you have a history of drug offending in Australia, not particularly serious, but that it continued and started from a comparatively young age and you have been convicted for a number of offences related to the use of drugs or the possession of equipment for the administration of and use of drugs. So clearly over a period starting from age 13 and through until 21 and beyond, you were involved in heavy cannabis use and it has had an effect upon your life thereafter. Taking your background into account as described in the s 27 report, I consider that a discount of five per cent to recognise those factors as being relevant to your culpability is an appropriate discount.
[57] That leaves your guilty plea and having regard to the matters I have already addressed, I am satisfied that your guilty plea was entered at an early stage in terms of the progression of your case when the issue of another charge was resolved and your plea was entered promptly thereafter. In these circumstances I am prepared to afford you a 25 per cent discount of your sentence on account of your guilty plea.26
Minimum period of imprisonment
[58] The Court of Appeal in Zhang emphasised that minimum periods of imprisonment must not be imposed as a matter of routine or in a mechanistic sort of way.27 The Court said that as a general rule, lengthy minimum periods of
25 Zhang v R, above n 3, at [162].
26 Hessell v R, above n 11, at [45]-[47]. The benefits that a guilty plea brings to the criminal justice system, and the participants in it, supply the principal justification for the guilty plea discount: Moses v R [2020] NZCA 296 at [22].
27 Zhang v R, above n 3, at [169].
imprisonment are properly reserved for cases involving significant commercial dealing. The present is clearly such a case.28
[59] Section 86 of the Sentencing Act 2002 relevantly provides that where a court imposes a sentence of more than two years’ imprisonment it may at the same time that it imposes sentence, order that an offender serve a minimum period of imprisonment that is longer than the period otherwise applicable under s 84(1) of the Parole Act 2002 if satisfied that that period is insufficient for the purposes of: holding the offender accountable for the harm done to the community by the offending; denouncing the offender’s conduct; deterring the offender or others from committing the same offence or a similar offence; or protecting the community from the offender.
[60] Mr Navarro, I consider that your offending is sufficiently serious that serving the standard minimum period of one-third of the sentence before becoming eligible for release on parole would be insufficient29 to hold you to accountable for the harm done to the community.30 Given that you do not pose any significant risk of re- offending, the imposition of a minimum period of imprisonment is not necessary to protect the community from you on that account.31 While the Court will appropriately hesitate to impose a minimum term of imprisonment upon a defendant who presents a low likelihood of re-offending,32 I have nevertheless decided to impose a minimum period of imprisonment upon you. I do so because of your willing participation in a substantial commercial-scale drug importation/distribution operation which had the potential to cause very serious social damage and consequences amongst the wider New Zealand community.33
[61] You were prepared to play a supporting role in what you knew to be a major drug operation in order to secure a financial benefit for yourself. To be eligible for release after one third of your sentence, which in your case would be around five years,
28 Zhang v R, above n 3, at [171]: it is “deterrence, denunciation and accountability that are likely to be at the forefront of decisions in drug cases involving the imposition of minimum periods of imprisonment.”
29 R v Brown [2002] 3 NZLR 670, (2002) 19 CRNZ 534 (CA) at [35].
30 Sentencing Act 2002, s 86(2)(a).
31 Section 86(2)(d).
32 Prasad v R [2020] NZCA 483 at [32].
33 Zhang v R, above n 3, at [263].
would be an insufficient response to your serious offending, and I consider that a minimum period of imprisonment is required to confer a degree of reality on the sentence.34 Your personal mitigating factors are not so compelling as to require recognition by the Court by deciding not to impose a minimum period of imprisonment.35 In order to serve as a clear deterrent to offending of this kind by you or anyone minded to involve themselves in drug offending such as occurred here, and to hold you accountable and denounce your offending, I determine that the appropriate minimum period of imprisonment to be imposed on you Mr Navarro will be something just under half of the sentence I shall impose.
Sentence
[62]Mr Navarro would you please stand.
End sentence
[63] Applying discounts totalling 40 per cent to a sentence starting point of 21 years’ imprisonment yields an end sentence of 12 years and seven months’ imprisonment.
[64] On the charge of possession of the Class A controlled drug, methamphetamine, for supply I accordingly sentence you to 12 years and seven months’ imprisonment.
[65] In relation to a minimum period of imprisonment, I shall impose a minimum period of 50 per cent of the sentence I have imposed.
[66] I make an order for the forfeiture to the Crown of the amount of cash which was located by the Police in the search of the premises at Avondale in the sum of
$76,550.00
[67]You may stand down.
Paul Davison J
34 R v Gordon [2009] NZCA 145 at [15].
35 Shaw v R [2016] NZCA 110 [25]; and Fleming v R [2011] NZCA 646 at [22].