R v O'Connor

[2016] NZHC 440

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-004-020035 [2016] NZHC 440

THE QUEEN

v

MICHAEL O'CONNOR

Hearing:	15 March 2016
Appearances:	Scott McColgan and Tyler Bellingham for the Crown Ron Mansfield for the Defendant
Judgment:	15 March 2016

SENTENCING NOTES OF MOORE J

R v O'CONNOR [2016] NZHC 440 [15 March 2016]

Introduction

[1]     Mr O’Connor, you appear for sentence on one charge of importing methamphetamine.1     It is a charge which carries a maximum penalty of life imprisonment,  a  penalty  which  reflects  how  seriously  offending  of  this  sort  is viewed.

[2]      You pleaded guilty on 17 August 2015.  That you are being sentenced some seven months later is unsatisfactory.  It is a consequence which arises from a series of complications the fault for which cannot be laid at your door.

Facts

[3]      The  facts  which  gave  rise  to  this  charge  are  contained  in  the  Police’s summary of facts which you accept. That summary makes it plain you were part of a large  scale  and  sophisticated  international  drug  importation.    Your  role  was  to monitor the imported drug shipment, manage and direct the person tasked to collect it in this country and to support that person in getting the shipment into the hands of the local distributor.

[4]      The amount of drugs landed in New Zealand was very substantial indeed.  It was in excess of 4.3 kilograms.  This amount of methamphetamine had a value of between $2.7 and $4.3 million depending on which street level dealing price is adopted.  I accept that to some extent using street level pricing is artificial but it does provide some insight into the value and profits which trafficking in this pernicious and dreadfully destructive substance can attract.    Furthermore, using as a denominator the most common street usage quantity of 0.1 gram (“or a Point”) this amount of methamphetamine would have made up something of the order 43,000 individual doses.  Again, that figure is open to criticism but it does provide some indication of scale.

[5]      Your role in these events meant you never had any direct dealing with the shipment.   You operated remotely.   You gave your directions to the “catcher” the

person tasked to receive the importation, from the other side of the world.  But your

1      Misuse of Drugs Act 1975, s 6(1)(a) and 2(a).

involvement was critical to the success of the operation and you were inextricably linked to others both above and below you in its hierarchy.

[6]      In order to define your exact role it is necessary to review what happened between September and November 2012.

[7]      In September 2012 a Mr da Silva arrived in Auckland from Japan.  He was the “catcher”.  Unbeknownst to him he was under covert and electronic surveillance by the New Zealand Police and Customs because they suspected he was associated with an international drug syndicate which had  been  involved in previous drug importations to New Zealand.

[8]      Through the covert phase it was discovered that da Silva was communicating with a Netherlands-based man who was organising an importation of methamphetamine.   As a result, the New Zealand Police made contact with the Dutch Police and through this you were identified as that man.

[9]      Later in September da Silva sent you a text message which identified the address  in  Auckland  to  which  the  methamphetamine  consignment  was  to  be delivered. This was the Quest Apartments in Queen Street.

[10]     Three weeks later Customs intercepted two suitcases addressed to the Quest Apartments.   They originated from Ankara, Turkey.   On inspection, the suitcases were found to have been fitted with sophisticated concealed false compartments.  On closer inspection the compartments were found to contain more than 4.3 kilograms of methamphetamine.

[11]     The Police immediately obtained a surveillance device warrant from this Court authorising them to intercept da Silva’s telephone communications.  Over the following days  text  messages  and  telephone calls  were monitored  and  recorded between  you and da Silva.   In that dialogue it was plain that  you were giving da Silva instructions on collecting the suitcases.

[12]     On  19  October  2012  da  Silva  went  to  the  Quest  Apartments  and  took possession of the suitcases.  He immediately made contact with you and told you he had them.  He went from the Quest Apartments to the Intercity Bus Terminal near the Sky Tower.  His plan was to travel by bus to Hamilton where the drugs would be re- packaged.  He intended to return to Auckland to undertake distribution of the drugs.

[13]     Before he was able to board the bus da Silva was intercepted by the Police. He  agreed  to  co-operate  with  them  by  continuing  the  delivery  in  controlled conditions so the Police could identify the New Zealand recipients.

[14]     As part of this exercise da Silva continued to communicate with you making arrangements to deliver the consignment.   However, by this time, Customs had replaced the drugs in the suitcases with a harmless placebo.

[15]     Back in Europe you flew from Amsterdam to Curaçao in the Caribbean.  It seems you were on holiday.  Despite this, you continued your communications with da Silva but using a new Curaçao cellphone number.  You gave da Silva instructions to meet with a Mr Soleymani whose intended role was to be the local recipient and distributor.

[16]     At around 5:00 pm that day Soleymani was seen by the Police waiting in his car at the Pakuranga Shopping Mall.   Da Silva handed him a back pack which contained the placebo and a small amount of methamphetamine.  Soleymani took the back pack and drove away.  He was intercepted by the Police shortly afterwards.  He was searched.  Several telephone cards were found in his possession.  When these were forensically examined they were shown to have been used to make telephone calls from local public pay telephones to the Curaçao number you had been using.

[17]     Da Silva and Soleymani were arrested and charged.   Apparently you were unaware your involvement was also known to the authorities.   That ignorance continued until you were arrested by the Dutch Police in Amsterdam in February

2013 under an Interpol “Red Notice” and a Mutual Assistance Request initiated by the authorities in this country.  You were extradited from The Netherlands in April

2014.  On your arrival in New Zealand you were formally arrested and charged.

Personal circumstances

[18]     At the age of 50 you are not a young man.  Nor is this the first time you have been in trouble with the authorities in relation to drug offending.  In October 1995 you were arrested and convicted in Australia on a charge of possession of not less than a trafficable quantity of cocaine.  You had been caught warehousing over 1.6 kilograms of the drug in bank vaults in central Sydney.  You were sentenced to 10

years’ imprisonment with a non-parole period of six years.2

[19]     You were born in London to a Maltese father and an Irish mother.   In the early years of your childhood you were left in the care of a convent before you moved to Australia with your mother at the age of 7.  To the probation officer who prepared the pre-sentence report, you described your childhood as “hard”.  You left Australia at the age of 19 and since then you have lived in a number of different countries.   In Malta you established your own business as a restaurant proprietor. You have four children to your wife.  They are aged between 11 and 28 years.  You continue to have an amicable relationship with the children’s mother fronm who you are separated and you report that your children are doing well.

Pre-sentence report

[20]     The pre-sentence report classifies you as being of a low likelihood of re- offending and that you pose a low risk of harm to others.  This is primarily because

your offending did not involve physical or emotional violence.

2      Stafrace v R (1997) 96 ACrimR 452 (NSW CCA).

[21]     However, the report also stresses that the serious nature of the offence is not diminished by the fact  that  your involvement  was restricted to  physical actions undertaken on the other side of the world.  The report writer recommends a strong deterrent aspect to the sentencing, a comment with which I am bound to agree.

[22]     The report writer also acknowledges that you are remorseful for your actions. You say that at the time of your offending you did not think through the possible ramifications  of  your  involvement  in  the  drug  operation  and  the  effect  your offending would have on users. That comment is difficult to reconcile due to the fact this is not the first time you have been involved in serious drug offending.

[23]     However, I do accept that while in custody you have been helpful to both inmates and officers in encouraging others to comply with prison regulations.   In fact, the author of the report records they have not previously read such complimentary notes from prison staff.

[24]     The report also records that you identify your gambling addiction as the root cause of your present offending; that you became indebted to some figure in the international drug underworld which lead you to becoming embroiled in this conspiracy.  It seems that you frankly acknowledge your involvement flowed from your own stupidity in allowing yourself to get involved in the gambling underworld and, to your credit, you have neither sought to minimise your part in the offending nor to apportion blame to others.

Approach to sentencing

[25]     Mr  O’Connor,  in  sentencing  you  today  I  adopt  the  standard  approach followed by Courts in this country which is to set a starting point by examining the nature and extent of your offending by reference to similar cases and sentences handed  down  to  other  drug  offenders  in  broadly  analogous  situations.3    For

methamphetamine  offending  this  exercise  is  based  on  a  well-known  guideline

3      R v Taueki [2005] 3 NZLR 372 (CA).

judgment of our Court of Appeal which sets out various sentencing bands ranked according to the amount of the drug involved.4

[26]     Once that exercise is completed and a starting point for your offending fixed, I must then consider whether there is anything in your personal circumstances which would  justify adjusting  that  starting  point;  either  by recognising  any  mitigating factors which might have the effect of reducing the sentence or, conversely, any aggravating factors which would operate to increase it.

[27]     I must also consider the principles and purposes set out in our Sentencing Act

2002.5   It is well recognised that the primary purpose of sentencing those convicted of commercial dealing in controlled drugs is deterrence.  In other words the sentence should have the primary effect of deterring like-minded others from engaging in similar activity.6   There is also a need to hold you accountable for the harm caused to the community by your offending; to promote in you a sense of responsibility for, and acknowledgement of, the harm caused by methamphetamine; and to denounce your conduct.  Having said that, I do not disregard entirely that one of the purposes of sentencing is to assist in your rehabilitation and reintegration although, in cases of

this sort, is of secondary importance.

[28]     I now turn to consider the appropriate starting point.

Starting point

[29]     It is plain that the size of the importation means that your case falls squarely within Band 4 of the guideline decision I mentioned a moment ago.  Your counsel agrees this is the case and in the circumstances could not have suggested otherwise. That case says that where an offender is involved in the importation of very large commercial quantities over 500 grams of methamphetamine, a starting point between

12  years and  life imprisonment should be imposed.7     Of course that  is a wide

sentencing range.   It is wide because it recognises there can be a broad range of circumstances in which such offending occurs.

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

5      Sentencing Act 2002, ss 7 and 8.

6      R v Terewi [199] 3 NZLR 62 (CA) at [13].

7      R v Fatu above n 4 at [35] to [36].

[30]     In order to set the starting point I need to consider the aggravating features of your offending.

[31]     The most obvious aggravating factor is the sheer quantity of drugs involved. You were involved in the importation of more than 4.3 kilograms of methamphetamine.   I have already touched on the street value and the number of individual doses that quantity was capable of producing.  It is inescapable that the introduction of methamphetamine in those volumes would have wrought serious harm within our community had it not been intercepted.

[32]     The second aggravating feature is the extent of commerciality.  There can be no doubt that the importation was for commercial gain.  The quantity says that in itself.  But furthermore, you and the network you were part of, were able to fund the catcher, da Silva, to travel to this country and to live in hotel rooms over extended periods.

[33]     The third aggravating feature is that your offending was an integral part of a larger sophisticated trans-national drug distribution ring. You were The Netherlands- based controller and you were involved in the management of the shipment.   The catcher was living in Japan and was instructed to travel here in order to receive, uplift, unpack and deliver the smuggled methamphetamine.   The suitcases which contained the drugs were sent from Ankara.  The method of concealment was highly professional.  Once the suitcases arrived here the plan was for the catcher to travel to a different part of New Zealand, apparently Hamilton, in order to unpack the methamphetamine before returning to this city to arrange for its distribution to local recipients.

[34]     The fourth factor is the role you played in this drug ring.  It was a significant role.   It had you monitoring the imported shipment, managing the catcher and his taskings (including advising him of how the methamphetamine was concealed and advice on how to unpack it).  You were also involved in the organisation, facilitation and  logistics  of  cash  transfers  to  the  catcher  and  the  actual  hand  over  of  the shipment.   You were actively and intimately involved in all facets of the receipt, unpacking  and  ultimate  distribution  to  the  New  Zealand-based  recipient.    You

ensured   that   all   communications   between   the   catcher   and   anyone   else   in New Zealand were relayed through you in order to maintain operational control over the catcher and the methamphetamine in his possession.  Indeed, so pivotal was your role that you maintained communication with others involved in the distribution of the methamphetamine while you were on holiday in the Caribbean.

[35]     I accept you were not the mastermind of the operation.  There was another or others above you in the hierarchy.  But you were certainly well up the ladder and I am satisfied you were a prime mover; a term which the Courts in this country use to refer to a person who does not perform any of the physical tasks involved in the drug operation but whose role is pivotal to its overall efficacy and success.

[36]     But there is another matter I must take into account and that is the question of parity; parity with the sentences of your co-offenders.  I see that the catcher, da Silva, received a starting point of 15 years’ imprisonment.8    Da Silva’s role has already been discussed.   He took possession of shipments of methamphetamine on three occasions.  He repackaged the import and delivered it to others.  In this way he was little more than a courier or drug mule who conveyed the methamphetamine once it arrived here.

[37]     In this Court, Soleymani attracted a starting point of 16 years’ imprisonment.9

He was the primary recipient in New Zealand of two methamphetamine deliveries.

[38]     On any analysis you were higher up in the operational hierarchy than either of those two.   You were in control of the other offenders whose actions and involvement I have just described.   You are thus significantly more culpable than

they and you deserve a starting point which is higher.

8      R v da Silva DC North Shore CRI-2012-044-6324, 12 March 2013 at [20].

9      R v Soleymani [2014] NZHC 2088 upheld on appeal in Soleymani v R [2015] NZCA 331.

[39]     I am  of the view that  the starting point  adopted  in  da Silva’s  case was particularly lenient.10   In dismissing Soleymani’s appeal against sentence, the Court of Appeal cited the following passage from MacFarlane v R with approval:11

“A lenient or merciful sentence extended to one offender cannot create an

expectation that other offenders will receive the same indulgence.”

[40]     In other words, just because da Silva was the recipient of a lenient sentence does not mean that you will be.12

[41]     The Crown submits that the appropriate starting point for your offending sits between 17 and 18 years’ imprisonment.  Mr Mansfield, on your behalf, presses for a starting point of 16 years.  So as you can see, there is not a great deal of difference between the Crown and Mr Mansfield on what the appropriate starting point should

be.   Based on sentences given for similar offending13  and taking into account the

sentences imposed on your co-offenders, I am of the view that a starting point of 18

years’ imprisonment is appropriate in your case.

[42]     I turn now to consider your personal circumstances which influence how that starting point might be adjusted.

10     R v Soleymani (HC) above n 9 at [66]; Soleymani v R (CA) above n 9 at [13].

11     Soleymani v R above n 9 at [12]; MacFarlane v R [2012] NZCA 317 at [24].

12     On appeal, the Court of Appeal said that a starting point of 17 years’ imprisonment would have been available to Mr Soleymani’s sentencing judge if such a low starting point had not been

adopted for Mr da Silva: Soleymani v R above n 9 at [13].

13     In R v Ang HC Auckland CRI-2008-004-12540, 18 November 2008 Mr Ang was a courier charged with importing 4 kg of methamphetamine to New Zealand from Hong Kong. The start point was fixed at 15 years.  In R v Boyarski HC Auckland CRI-2006-092-12125, Mr Boyarski and Mr Norstram were couriers who were charged with importation of 4.7 kg of methamphetamine. A start point of 14 years’ imprisonment was adopted. In R v Jian & Huang

HC Auckland CRI 2010-092-009117, 7 September 2010 Asher J said that a considerably higher

starting point will be applied where the offender has a role greater than that of a courier (at [18]). So, in R v Nguyen HC Auckland CRI-2009-004-13300 Mr Nguyen arranged and oversaw four importations of methamphetamine totalling between 3.5 and 4 kg. He was the prime mover and a senior member of the drug ring, a start point of 24 years’ imprisonment was adopted. I have also considered sentences of prime  movers charged  with the  importation of  significantly lower quantities than that brought in by Mr O’Connor. In R v Iwu [2015] NZHC 1438 Mr Iwu was the prime mover and arranged and organised all the importations. He received a start point of 16 years’ imprisonment for the importation of 1.127 kilograms of methamphetamine. In R v Javid HC Auckland CRI-2005-004-14044, 4 September 2007 a start point of 15 years was adopted for the importation of 1.5 kg.

Personal circumstances

Previous conviction

[43]     I am going to uplift your sentence to reflect the fact that this is not your first conviction for serious class A control drug offending.   Your Australian conviction dates back to 1995 but despite that, in my view an uplift is necessary to deter you from future serious drug offending because plainly the 10 years imposed on you in Australia has not been sufficient to deter you from getting involved in this trade again.  An uplift is also necessary to protect the community from the incalculable harm which serious drug offending inevitably wroughts.   I uplift your sentence in recognition of these factors by 12 months.

[44]     Mr Mansfield says you should be entitled to a discount for rehabilitation and remorse.  He points out that you have undertaken courses while in custody to address your  gambling  addiction  and  you  have  expressed  genuine  remorse  for  your offending.  But even if I was to accept the sincerity of your remorse, relatively little weight can be placed on that factor or the steps you have taken to rehabilitate.  That is because deterrence and denunciation are the key sentencing principles engaged

here.14   Despite  Mr  Mansfield’s  forceful  submissions  and  eloquence  I  am  not

persuaded that the remorse you have exhibited and your rehabilitative efforts are outside the range which one routinely encounters in this area.  I am not satisfied they outweigh the need to deter others from engaging in similar offending.   I am not prepared to give you a discount on this basis.

[45]     Mr Mansfield also submits you are entitled to a discount for the fact that you spent  one  year  and  three  months  in  Dutch  custody  awaiting  extradition  to New Zealand.  He submits that the circumstances of your incarceration during that period were particularly harsh and oppressive.  He acknowledges that that period of custody will be deducted from your sentence automatically but he goes further and submits that the particular circumstances of your detention justify a special discount. I am not prepared to adopt that approach.  There is no reliable evidence this was the

case and no proper basis on which to justify such a course.

14     R v Chen [2009] NZCA 445, [2010] 2 NZLR 158 at [174]. See also Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [12] and Whare v R [2014] NZCA 354 at [12].

[46]     Mr Mansfield also submits that being locked up in gaol on the other side of the world away from your family will be especially punitive.  But this is not a case where the social shock of adjusting to a foreign culture represents a substantial added burden as may have been the case of da Silva, a man I am told is of Brazilian and Japanese origins.  You have lived in Australia.  You have spent an extended period in prison there.   You have a sister still living there.   And, as seems from the pre- sentence report, you are coping well in prison here.   I accept you will miss your family and they, no doubt, you.  But I do not accept the tyranny of distance in your case is sufficient to justify a discrete discount.

Guilty plea

[47]     However, you are entitled to a discount for your guilty plea.  That discount needs to take into account the circumstances of your plea of guilty, its timing, the strength of the prosecution case against you and other relevant factors.15

[48]     You did not enter a guilty plea particularly early in the evolution of this case. However, the time taken to enter a plea must take into account that your offending took place overseas.   It required the involvement of Interpol and attracted the complications of extradition from The Netherlands.

[49]     There is also the practical reality that Mr Mansfield, as a responsible and experienced counsel, was required to invest significantly more time than usual to review the prosecution case against you, to discuss the case with you and to advise you  and  obtain  instructions.    I  acknowledge  that  your  guilty  plea  has  saved significant time, resources and expense which would have been incurred had you elected to contest the charge.  The cost of a two week trial has been avoided and you have saved the Crown the expense and inconvenience of flying three witnesses from

overseas and accommodating them here in order to give evidence at your trial.

15     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [73]–[77].

[50]     Taking those factors into account I discount your sentence by three years. This results in an end sentence of 16 years’ imprisonment.

[51]     I turn now to the Crown’s submission that in your case a minimum period of

imprisonment should be imposed.

Minimum period of imprisonment

[52]     I have decided to impose a minimum period of imprisonment of half your sentence; that is eight years.16     I am of the view that a minimum period of imprisonment is necessary for the purposes of deterrence; that is specifically deterrence in relation to you given your history, as well as the general deterrence of those who are based overseas and who may be minded to target this country as a convenient market for methamphetamine.  As you will be aware, this drug has been responsible for an incalculable level of harm in New Zealand over the last decade or

so.  It is a drug which has not only ruined the lives of those who are addicted to it but it is responsible for massive collateral damage to families, friends and others.  It is also responsible for crimes committed under its influence and crimes committed to feed the habits of those who are addicted to it.  Virtually no one in this country is unaffected by its pernicious influence; even our taxes are used to meet the medical and other costs linked to this drug and its effects.   The temptation to import and distribute methamphetamine must be tempered by the knowledge that those who are caught can expect to receive long sentences.

Sentence

[53]     Mr O’Connor would you please stand.

[54]     You are sentenced to 16 years’ imprisonment with a minimum period of imprisonment of eight years.

16     I note that in R v Wong [2009] NZCA 332 the Court of Appeal said that in cases of very serious drug offending, the criteria for a minimum period of imprisonment will almost invariably be met. I also note that in R v Anslow CA182/05, 18 November 2005 at [27] the Court observed that minimum periods of imprisonment will commonly be imposed where the finite term of the sentence is more than nine months’ imprisonment. That is the case in Mr O’Connor’s situation.

[55]     Stand down.

Moore J