R v Rahimi HC Auckland CRI-2004-404-1944
[2005] NZHC 1286
•4 March 2005
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2004-404-1944
THE QUEEN
v
BEHNAM RAHIMI
Hearing: 4 March 2005
Appearances: L Freyer for Crown
C P Comesky and J Soondram for Prisoner Judgment: 4 March 2005
SENTENCE OF WINKELMANN J
Solicitors:
Crown Solicitors, Auckland C Comeskey, Auckland
R V RAHIMI HC AK CRI-2004-404-1944 [4 March 2005]
[1] Mr Rahimi, you appear for sentencing having been found guilty on 2 December 2004 of the following charges:
a)one count of importing a class A controlled drug, namely methamphetamine;
b)two counts of possession for supply of a class A controlled drug, namely methamphetamine;
c)one count of possession of a class B controlled drug, namely opium, and that was for possession and supply.
Facts
[2] On 23 January 2004 a package was intercepted by New Zealand Customs at the International Mail Centre in Auckland. The delivery address for the package was the adjacent flat to yours in Church Street, Onehunga. The name of the addressee was very similar to yours. On examination the Customs discovered four concealed packages wrapped in carbon paper within four separate cavities within the package. Each of the packages contained a quantity of crystalline methamphetamine. The total weight of the methamphetamine was approximately 145g which gave the package a street value of between $87,000-145,000 roughly.
[3] On 27 January 2004 police and customs officers conducted a controlled delivery of a package to a Church Street address. You met the delivery person outside that address and took possession of the parcel, identifying yourself as the addressee. You took the package inside your own flat adjacent to the delivery address. Some time later the police entered your flat. They found paraphernalia associated with the consumption and supply of opium and methamphetamine. Hidden in a bedpost in the bedroom was a clear package which contained three separate packages of opium. Concealed in a book in a lounge cupboard was a further and larger amount of opium.
[4] Also located in your bedroom was a stereo speaker and concealed within that were nine bundles of cash. The bundles were made up of NZ$62,160, US$1,905 and 5,500 Iranian riads. Along with the cash was a $5,000 ASB Bank cheque.
[5] The same speaker contained a further 17.5g of methamphetamine which had a street value of between $10,000-$17,000 roughly. Along with the methamphetamine was a further amount of opium. The total street value of the opium located at your flat is estimated to be between $44,000-$61,000 again, these are rough figures.
Counsels’ submissions
[6] I have considered the written and oral submissions for the Crown and your counsel. The Crown submits that there are many significant aggravating factors present in this case in relation to you. The aggravating aspects the Crown points to are that the offending involved premeditation and planning. The evidence showed that you sent money to Malaysia some two weeks prior to the parcel arriving in New Zealand from Malaysia having obtained a postal order. Planning and pre-meditation could, to a certain extent, be said to be an integral part of the offending itself, in relation to the importation but I do take it into account. It is clearly however an aggravating factor in relation to the other counts.
[7] The Crown also submits that it is a relevant aggravating factor that the offending involved a dangerous drug, namely, methamphetamine, which would have endangered the health of persons who eventually used it. I accept that methamphetamine is a pernicious drug and that your conduct has the potential to cause terrible harm to the community. However again, this is a matter inherent in the nature of the offending.
[8] The Crown also submits that it is relevant that the offending involved a substantial amount of drugs, namely, the importation and possession of 145g of methamphetamine, possession of a further 17.5g of methamphetamine and 247g of opium. These are very substantial amounts and I accept that this is an aggravating factor.
[9] The Crown also submits that it is an aggravating feature that the offending was for commercial gain as evidenced by the presence of money, digital scales and the tick list found hidden at the address. I regard this as an aggravating factor.
[10] Finally the Crown refers to your role in the importation as defined. The Crown says you played a key role and as I come to you later, I do regard your role in the offending as relevant to your culpability. The Crown concedes as a mitigating factor that you have no previous convictions.
[11] After reviewing the authorities, the Crown submits that an appropriate starting point would be 11 years imprisonment and it seeks the imposition of a minimum period of at least half of the finite term of the imprisonment.
[12] Finally, the Crown seeks an order pursuant to s 32(3) of the Misuse of Drugs Act 1975, that the cash located by the police when they searched your property be forfeited to the Crown and the cash are those amounts I set out earlier. The Crown does not seek an order in respect of the ASB cheque.
[13] Your counsel submits that your culpability in respect of these offences is low. He submits that you are simply incapable of participating in drug importation and supply at the level of an instigator and mastermind because of what he characterises as your child-like behaviour. He says that you are simply a pawn. He says if you were receiving commercial gain it was not reflected in how you lived and he submits strongly that you were not. It is certainly true that you lived in simple circumstances and always required flatmates to assist with expenses. He refers to a report of Auckland Mental Health Services, which discloses that you have two significant psychiatric disorders namely – severe recurrent major depression and, chronic post- traumatic stress symptoms. In addition you suffer from chronic pain and headaches. The report identifies that you have in the past attempted suicide and have an ongoing need for mental health support and medication. The report also refers to your background in Iran and that you had been a victim of torture and also records your report of abuse as a child.
[14] Your counsel has not put before me any evidence that you have an intelligence which is subnormal which might reduce your culpability. However I do intend to take into account, in sentencing you, the matters identified by the Mental Health Services in the report dated 14th February 2005.
Pre-sentence report
[15] I have read the pre-sentence report. That discloses you are in New Zealand as a refugee. You have the support of your family, a brother and sister, in New Zealand and you also have several friends here. The probation service say that they believe that it may be possible that you suffer from a depressive disorder but I now see that this is confirmed. You deny any drug use in New Zealand.
[16] You were assessed by the probation service as not having accepted any responsibility for your offending which will allow you to address the factors that may have contributed to that offending, and accordingly your motivation to change is assessed as very low.
Principles and purposes of sentencing
[17] The Sentencing Act sets out a number of purposes for sentencing or otherwise dealing with offenders. In this case, the following purposes are relevant:
a)To hold you accountable for the harm done to the community via your offending.
b)To promote in you a sense of responsibility for and acknowledgement of the harm done to the community by your offending, namely, the importation and possession for supply of dangerous drugs.
c)To denounce the conduct in which you were involved.
d)To deter you and others from committing the same or similar offence.
e)To protect the community from you.
f)To assist in your rehabilitation and reintegration.
[18] I take into account the principles of sentencing set out in s 8 of the Sentencing Act. Four principles seem to be particularly applicable. I must take into account the gravity of your offending, including the degree of your culpability. I am satisfied that you have a high level of culpability for the offending as I am satisfied that you played a key role in the importation and supply. The evidence was that it was you who processed the payment order to pay for the importation. Further, the delivery was addressed to the vacant flat adjacent to yours, and you accepted the delivery. The presence of other methamphetamine and opium on the premises and the paraphernalia for supply implicate you as involved in an ongoing commercial enterprise selling opium and methamphetamine I do not accept your Counsel’s submission that you were merely a pawn.
[19] I must also take into account the seriousness of the type of offence in comparison with other types of offences. In this case the offences are very serious. The importation and possession of class A drug for supply offences carry a maximum sentence of life imprisonment. The possession for supply of the class B drug opium carries a maximum sentence of 14 years imprisonment.
[20] I must also take into account the general desirability of consistency with other sentences.
[21] Although it is a principle of sentencing that the Court must impose the least restrictive outcome that is appropriate in all the circumstances s 6(4) of the Misuse of Drugs Act provides that there is a statutory presumption of imprisonment where a person is convicted of an offence relating to class A controlled drugs. This principle is, in my view, relevant however to the issue of the imposition of a minimum sentence.
[22] Finally, I also have regard to provisions of s 85 of the Sentencing Act, which provide that I must consider the totality of your offending. I take as the lead charge for the purpose of sentencing the importation of the methamphetamine.
Authorities
[23] Counsel have referred me to authorities that relate to methamphetamine as a class B controlled drug prior to the amendment to the Misuse of Drugs Act that elevated methamphetamine to a class A drug. Counsel for the Crown has also referred me to R v Bradley and Galvin HC ROT CRI-2003-063-8523 20 February 2004 and R v Marroquin-Rodriguez HC AK CRI-2004- 004-6529 9 June 2004. Counsel for the Crown also addressed me in respect of R v Shaida and Graaf HC AK CRI-2004-004-6330, 6746 21 September 2004.
[24] The approach taken by the courts after the amendment to the Misuse of Drugs Act in relation to methamphetamine has generally been to use the classification and categories identified by the Court of Appeal in R v Wallace and Christie [1999] 3 NZLR 159, which is a tariff case for class B offending, but to amend the sentencing range indicated to take account of the more serious nature of the offence and then more prevalent use and abuse of methamphetamine in our community. This analysis is apparent in the decisions of Williams J in Bradley and Galvin and also in R v Botje HC ROT CRI-2003-087-3922 18 February 2004 which is another decision and finally in R v Shaida and Graff HC AK CRI-2004-004-6330, 6746 21 September 2004. These categories identified in Wallace and Christie are, in broad terms:
(i)Category 1. Commercial activity on a major scale where there would likely be numerous separate offences. For class B drugs, the Court of Appeal has identified a range of 8-14 years for a starting point.
(ii)In Category 2, the commercial manufacture or importation on a substantial scale reflecting sophistication and organisation with operations extending over a period of time, though not involving massive quantities of drugs. For class B drugs the Court of Appeal identifies the starting point a range 5-8 years.
(iii)And then there is Category 3 which captures smaller operations, but representing commercial dealing where the Court of Appeal identifies a starting point of up to 5 years for class B drugs.
The Court of Appeal has now accepted that the Wallace sentencing categories are under estimates in the light of the re-categorisation of methamphetamine to class A, and also in the light of the increased prevalence of methamphetamine drug offending and hence the increased need for deterrence. R v van Lent (CA 166199, 29 September 1999).
[25] Another helpful decision in this area is R v Wicknemasinghe (T013408, Auckland, 28 March 2003) where Chambers J, in describing the approach to culpability, referred again to the Court of Appeal’s decision in R v Wallace. He said the matter had been succinctly put by the Court of Appeal in R v Wallace.
In that case, the Court of Appeal stressed that those engaged in the dissemination of drugs in the community may perform different roles. In a typical ring there will be those who introduce the drugs by manufacture or importation and those who carry out distribution at different levels. Within these groups there will be those who are prime movers and those who assist or play lesser roles. The mastermind might be found at any level or indeed remote entirely from the handling of the drugs. The Court of Appeal stressed that to fix the culpability of individual offenders requires assessment of the facts of a particular case.
[26] The Crown also refers me to the Marroquin-Rodriguez case. In that case the prisoner was sentenced on importation on one count of importing 87g of a class A drug methamphetamine. There were considerable mitigating factors in that case including a plea of guilty, remorse, co-operating with authorities and lack of previous criminal history. A starting point of 10 years was adopted by the trial Judge but the sentencing Judge noted that a higher starting point, perhaps more in line with the Crown submissions in that case of 10-13 years, might be required for greater quantities. A final sentence of 5½ years after making substantial allowance for the mitigating factors was imposed. No minimum term was imposed.
[27] In Shaida and Graaf, G pleaded guilty to possessing class A methamphetamine for supply, importing class A methamphetamine and supplying class A methamphetamine. A search of the house revealed 5.9kg of methamphetamine at 80% purity. The street value was between $3.6-$6 million. G had also agreed to act as a drug courier for cash and he imported 11kg of methamphetamine over a six-month period with a street value of approximately $6.6 million and G received about $200,000 for his involvement. A starting point of 15-
16 years imprisonment was adopted. The aggravating factors were premeditation, quantity, value and repeated nature of offending which raised the sentence to 18-20 years imprisonment. A discount was allowed for a guilty plea, giving an end sentence of 14 years imprisonment on each charge. The quantity and value of the drug and the repeated nature of the offending took the offending outside the usual range of offending and therefore a minimum term of eight years and four months was imposed.
[28] In that same case S pleaded guilty to one count of importing methamphetamine and one count of possessing the same drug for supply. 1.9kg of methamphetamine was found with 80% purity in his luggage with a street value of approximately $1-9 million. A further 918g was found at his residence. He made between $25,000 and $30,000 for each of the drug runs. He gave assistance to the police to help apprehend G and others. A starting point of 13-14 years imprisonment was used. The aggravating factors of premeditation, quantity and value raised the sentence to 16-17 years imprisonment. However there was greater mitigation than for G because of a guilty plea and assistance to the authorities. S received 11½ years imprisonment on both charges. A minimum term of five years and nine months was imposed.
[29] Williams J categorised both offenders as being at the bottom end of the first category in Wallace and Christie or perhaps the top of the second category.
[30] In my assessment, your offending is more serious than that in Morroquin- Rodriguez, where there was only 87g involved and only one count of importing methamphetamine. The offender’s role was that of a courier so a less significant role than the importation, than yours. However I accept the offending as being substantially less serious than either Shaida or Graff. There are the aggravating factors of premeditation and planning on your part. I assess your culpability as high. You were a key player in this importation. I would place your offending in the second category of Wallace and Christie in the middle to top of that range. It is also relevant, taking into account the totality of your offending, that you had other methamphetamine for supply, and that you also had substantial quantities of opium for supply.
[31] Taking into account these matters, I consider that a starting point of 11 years imprisonment in relation to the lead charge of methamphetamine is appropriate.
[32] Turning to consider the mitigating factors identified. There is little that can be said by way of mitigation for you and your Counsel has said all that can be said. However, a discount is appropriate in light of the fact that you have no previous convictions.
[33] I do not take into account your personal circumstances in relation to your time in Iran, identified in the Mental Health Services’ report. In such serious offending personal circumstances are not relevant but this is subject to one proviso. I do take into account the fact that you suffer from two psychiatric disorders so that imprisonment will be hard for you. These are not however, matters that reduce your culpability for offending.
[Mr Rahimi, would you stand please].
[34] Accordingly I sentence you to nine years imprisonment on the lead charge of importation of the class A drug methamphetamine. In respect of the two counts you are convicted on of possession of class A controlled drugs namely methamphetamine for supply, I assess you as being at the bottom end of the second category and Wallace and Christie and I sentence you on each of these counts to six years imprisonment having taken into account mitigating factors. In relation to possession of a class B controlled opium for supply, I would assess the seriousness of this offence as placing you at the top end of the 3rd category in Wallace and Christie. I sentence you to four years imprisonment having taken into account mitigating factors.
[35]All sentences are to be served concurrently.
[36] I recommend that all notes from the Mental Health Services in relation to you be provided to the Prison Authorities and I ask Mr Comesky to ensure that that occurs. I recommend that the Prison Authorities make all necessary arrangements to ensure that you continue to receive adequate support and medication in respect of the
psychiatric disorders identified in the Mental Health Services letter of 14 February 2005.
Minimum sentence
[37] The Crown submits that it is appropriate that a minimum period of imprisonment be imposed. You are being sentenced in respect of offending which occurred prior to the enactment of the Sentencing Amendment Act 2004 and therefore the provisions of the old s 86 apply: R v Chadderton CA345/04 6 December 2004.
[38]Section 86 as originally enacted provided in material part:
(2)The court may impose a minimum period of imprisonment under this section if it is satisfied that the circumstances of the offence are sufficiently serious to justify a minimum period of imprisonment that is longer than the period otherwise applicable under the Parole Act.
(3)For the purposes of this section, the circumstances of an offence may be regarded as sufficiently serious if the court is satisfied that the circumstances take the offence out of the ordinary range of offending of the particular kind.
The section also provides that the minimum term must not exceed the lesser of two- thirds of the full term of the sentence or 10 years. In order to impose the minimum sentence I must be satisfied that the circumstances of the offending are such that they take the offence out of the ordinary range of offending in a particular crime. The focus is on the circumstances of the offence, not the offence itself, with the central consideration being the culpability of the offender. In terms of the approach taken by the Court of Appeal in R v Brown [2002] 3 NZLR 670, I must consider whether the minimum period served having regard to the effect of the Parole Act will be sufficient to satisfy the requirements of punishing, deterring and denouncing your offending.
[39] I am satisfied that the offending in this case, is such as to take it out of the ordinary range of offending and that the ordinary minimum parole period would not be sufficient in this case to punish, deter and denounce the offending.
[40] Your Counsel submits that a minimum sentence should not be imposed because of your special mental health needs as the minimum term will tie the hands of the Parole Board as to how best to respond to your needs.
[41] However, I have already taken your mental health into account in sentencing you to nine years. Your mental health does not bear upon your culpability and this matter is addressed in my direction that you receive necessary treatment during your imprisonment.
[42] In reaching the view that a minimum sentence is appropriate, I have regard to the significant amount of methamphetamine involved in the importation, to the evidence of an extensive drug operation at your house and, in particular, the fact that there were two drugs involved, and that you had methamphetamine for supply, which was not the subject of the importation. I also assess your culpability in relation to the importation as high, given the role that you played. I therefore impose a minimum sentence upon you of four and a half years imprisonment.
[43] The Crown seeks an order pursuant to s 32(3) of the Misuse of Drugs Act 1975 that the cash located by the police during the search of your property be forfeited to the Crown. Section 32(3) of the Act provides that such forfeiture may be ordered if the Judge is satisfied that the amount of money found in the possession of the prisoner was received by that person in the course of or consequent upon the commission of the offence, or was in possession of that person for the purpose of facilitating the commission of an offence against s 6 of the Act.
[44] In R v Gibbons CA75/99 4 May 1999, the Court of Appeal was prepared to order the forfeiture of cash which was found hidden with cannabis. The appellant had been found guilty on a charge of possession of cannabis for supply. The Court refused to overturn the trial judge’s factual finding that the money was for the purpose of buying wholesale amounts of cannabis.
[45]Prerequisites to the exercise of this discretion are:
(i) You must have been convicted of an offence against s 6 of the Act and you have been so convicted.
(ii) The Crown must satisfy me on the balance of probabilities, that the money found in your possession was in your possession for the purpose of facilitating the commission of an offence against s 6. It need not be the offence of which you were convicted. In applying the standards of proof when making factual findings, I should have regard to the seriousness of the matters to be determined. The forfeiture of property is a very serious matter.
[46] In this case I am satisfied that the Crown has established on the balance of probabilities that the money found in your possession was in your possession for the purpose of facilitating the commission of an offence against s 6. You were, at the time of your arrest, receiving a disability benefit. The amount of cash found was very substantial, it was concealed within a bedpost with drugs. Evidence from your family was that you were keeping the family money safe for them, but that evidence is inconsistent with the other evidence from your family that you are simple and have a bad memory. I cannot accept that evidence. I am therefore satisfied on the balance of probabilities that it is a proper inference from those facts that the money was for the purpose of paying for the amounts of methamphetamine and opium for supply or for importation of those substances.
[47] Accordingly I order the following amounts of cash forfeited to the Crown which were located at Church Street, Onehunga on 27 January 2004:
a) NZ$62,160
b) US$1,905
c) 5,500 Iranian riads
H D Winkelmann J
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