R v Silverio HC Auckland CRI 2005-092-3930

[2005] NZHC 1714

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-092-3930

THE QUEEN

v

SHELIA SANCHES SILVERIO

Hearing:         10 May 2005 Appearances: JM Jelas for Crown

RM Mansfield for Prisoner Judgment:  10 May 2005

SENTENCING NOTES OF LAURENSON J.

Solicitors:

Meredith Connell, PO Box 2213, Auckland for Crown RM Mansfield, PO Box 2674, Auckland for Prisoner

R V SHELIA SANCHES SILVERIO HC AK CRI 2005-092-3930 [10 May 2005]

Introduction

[1]    You pleaded guilty to a charge under s 6(1)(a) of the Misuse of Drugs Act 1975 of importing a Class A drug. The maximum penalty under our law is life imprisonment.

Background

[2]    You arrived at the Auckland International Airport on an Air New Zealand flight from Singapore at about 11.20 am on Friday, 10 December 2004. Your luggage was searched, as your ex husband had been found with methamphetamine in his luggage when arriving on the same flight the day before. No controlled drugs were found in the search of your luggage but upon conducting a personal search, the customs officers observed a package protruding from your vagina. You voluntarily removed this package which proved to contain 296.4 grams of methamphetamine. The estimated street value of this drug is $240,000 to $300,000.

[3]    You explained that you had been recruited to carry the drugs from Malaysia to New Zealand. You said that you had felt under threat to do so, but you also knew from the start that offered $US10,000 to carry drugs and an extra $5,000 if they carried the drugs inside them.

[4]    You are a 30 year old person; normally you live in Toronto, where you are employed as a laser technologist at a hospital.  You are an Iranian national residing in Canada. You are divorced, you have no children, and it is quite clear that you are an extremely intelligent and well-educated person from a caring and informed background.

[5]    The Crown has noted the coincidence between the arrival of your husband and yourself. It was obviously a most unfortunate coincidence so far as you were concerned in that it led to your detection. Whether there is anything more to be  drawn from that coincidence, I do not know and for me to come to any further conclusion in that regard would involve speculation, which I am not prepared to do.

Pre-sentence report

[6]    This report sets out your explain for your offending, namely that you had considerable debts and financial obligations to your family.  You  initially approached the ringleaders to earn some money, not being aware exactly of what you would have to do, and when you got to a certain point and tried to back out, you were faced with threats to yourself and your family. In that situation you became entangled to the point where you could not get out and the offending  took  place. You say that you are not a drug user.

[7]    You have expressed some willingness to engage in positive programmes once you are sentenced, and I note from the material passed to me today that there is every sensible expectation that you will do so profitably and well.

Prior convictions

[8]    The report also indicates that you have not previously appeared before the Courts.

Aggravating factors

[9]    Section 9(1) of the Sentencing Act 2002 lists aggravating factors that must be considered by the Court where they are applicable. One is obviously relevant here, that is, the matter of premeditation on your part and, if so, the level of premeditation involved.

[10]   It is clear to me from your account that your decision to become implicated was a conscious and premeditated one. It was prompted, in the final analysis,  by your anxiety to get money, and it was carried out despite your now well professed dislike of drugs and despite the fact that you are an intelligent and educated person. You knew it was wrong. Those factors for a start, and quite apart from anything that developed afterwards, weighed with you to the extent that they completely outweighed any concerns you might have had for the citizens of this country.

Mitigating factors

[11]   Section 9(2) of the Act refers to these. Insofar as s 9 is concerned, there  is  the fact that you have pleaded guilty, and I have no doubt now that you are truly remorseful for what you have done, and I have read with interest and indeed some sympathy the letter that you have provided to me. You pleaded guilty as soon as possible before depositions and therefore you are entitled to a discount in that regard.

[12]   Your counsel, Mr Mansfield, in his typically thorough and  thoughtful manner, has drawn to my attention other matters which, he submits, should be taken into account as mitigating factors. There are the threats; there is  the assistance  which you provided to the Police. Just what happened as a result of that I do not know but it seems to be clear that the assistance was provided and going beyond perhaps that which I have seen in most cases. You tried to disentangle yourself but you got in too deep. And finally, the point is made that the sentence  of  imprisonment which undoubtedly you will have to serve will bear more stressfully on you, you being an overseas national.

Principles and purposes of the Act

[13]   So far as the principles and purposes of the Act, there is an overlying here, namely s 6(4) of the Misuse of Drugs Act, which provides a presumption of imprisonment for offences relating to Class A drugs.

[14]   Section 7 of the Sentencing Act gives an exhaustive list for sentencing purposes. Those which I find to be particularly applicable in your case are:

i)To hold you accountable for the harm done to the community by the offending;

ii)To promote in you a sense of responsibility for and an acknowledgement of that harm;

iii)To denounce the conduct in which you were involved;

iv)To deter you and other people from committing the same or similar offending; and

v)To protect the community from you but at the same time to assist in your rehabilitation and reintegration.

[15]   Section 8 of the Sentencing Act refers to the purposes of sentencing. I have considered these. The three which seem particularly relevant are;

i)The Court must take into account the gravity of the offending in the particular case, including the degree of culpability.

ii)To take into account the general desirability of consistency with appropriate sentencing levels; and

iii)To impose the least restrictive outcome that is appropriate in the circumstances.

[16]   The Crown has submitted that a starting point of nine to 10 years imprisonment is appropriate but accepts that that is indicative only and that a higher starting point could be warranted. It submits that the defendant falls within the highest Arthur (CA 382/04, 17 March 2005) category, which I will refer to shortly, and that account should be taken of the fact that this is a case of importation and not supply.

[17]   The defence submission is that a starting point of seven to nine years is appropriate and noting the matters in mitigation that I have referred to.

[18]   Taking into account the requirements of s 16 of the Act and the need to denounce and deter in this case, there is no alternative than imprisonment in this  case.

[19]   The Court of Appeal decision of R v Wallace and Christie [1999] 3 NZLR 159 has continued to some extent to provide a basis for determining sentencing in methamphetamine importing cases. That case identified two categories of drug offending:

“[30] The cases reflect a considerable range in the  seriousness  of  offending. They show that for commercial activity on a major scale the starting point before any allowance for mitigating factors for a principal offender will be in excess of eight years and in the very bad cases up to 14 years, especially where repeat offending is involved. For major offending of this kind there will likely be numerous separate offences so that the 14-year maximum penalty will have little direct relevance to the total offending.

[31] 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 or prolonged dealing calls for a starting point in the range five to eight years.”

[20]   Since that case there has been a further Court of Appeal decision in R v Arthur (CA 382/04, 17 March 2005). This is not a tariff judgment but it does give some helpful guidance in relation to supply. The Court notes that importing or manufacturing charges are likely to attract higher sentences than those they identify for supply. This is because these offences are those which bring drugs into circulation in New Zealand. The Court recommended that the sentencing Judge  make use of the band system in place in New South Wales for supply as follows:

Level of dealing	Amount	Starting points
Low level supply	Less than 5 grams	2-4 years imprisonment
Commercial quantity	5-250 grams	3-9 years imprisonment
Large commercial quantity	250 grams or more	8 years or more

[21]   Using these indications, the offending in this Court falls into the third category, namely a large commercial quantity justifying a starting point based on supply of eight years or more.

Other recent cases

[22]   I have been referred to and, have been assisted by a discussion in relation to,  a number of other cases by counsel.

[23]   Firstly, R v Ferry HC AK CRI-2004-44-6481 3 May 2005 Baragwanath J. In this case there were 112 grams of methamphetamine in total. There was a starting point of 11 years. The sentence imposed was seven years, reduced by, for a particular circumstance, relating to time spent in a rehabilitation centre. There was  no minimum term.

[24]   In R v Rahimi HC AK CRI-2004-404-1944 4 March 2005 Winkelmann J, 145 grams of methamphetamine, a starting point of 11 years, no plea of guilty, and a final sentence of nine years with a minimum term of four and a half years. It was noted here that the prisoner was regarded as a key player in the operation.

[25]   Next there is R v Marroquin-Rodriguez HC AK CRI-2004-004-6529 9 June 2004 Randerson J. There was a guilty plea, 87.2 grams of methamphetamine. The starting point of 10 years was adopted, a final sentence of five and a half years with no minimum term imposed.

[26]   In Shaida & Graf HC AK CRI-2004-004-6330/6746 21 September 2004 Williams J, both pleaded guilty. Graf brought in 5.928 kilograms, a starting point of 15 to 16 years was taken, increased by aggravating factors to 18 to 20. Finally, a sentence of 14 years, following a guilty plea, with a minimum term of eight years and four months. Shaida, again a plea of guilty, 1.922 kilograms, a starting point of 13 to 14 years increased to 16 to 17 years for aggravating factors, a final sentence of 11 and a half years with a minimum term of five years and nine months.

[27]   The Courts have reacted to the re-classification of methamphetamine as a Class A drug. Whilst the quantity involved is not the only factor, it is one which provides some basis for comparison. What is starting to emerge is a general increase in starting points of about two years. this takes into account the intent behind the re- classification and noting the effect of it, namely to now bring into play a far more

serious sentence, namely life imprisonment. An example of this is R v McLeod HC AK CRI-2003-090-12511 27 February 2004.

Assessment of culpability in your case

[28]   The quantity involved, namely 296.4 grams, places the offending in this case in the third category mentioned in Arthur, that is, a large commercial quantity justifying a starting point of eight years. The quantity is at the lower end of that category but, equally, it is above the limit in the second category justifying a starting point of five to nine years.

[29]   The offending was premeditated, clearly for financial gain and equally clearly, whether you approve of it or not, had the effect of assisting others in a commercial activity.

[30]   Taking into account these factors, and noting that the charge is importing and not supplying, I have concluded that there should be a starting point, including aggravating factors, of 11 years imprisonment in this case.

Reductions

[31]   You are entitled to a full discount for your early plea of guilty. In addition, I note and accept that other matters are to be take into account, namely you are remorseful and aware of the significance of the harm caused by this type of offending to others. This is quite clearly apparent from the letter you have written to me and comes about as a result of your association with people who have been deeply affected by the use of this pernicious drug.

[32]   Furthermore, I accept that you were only a courier, as opposed to an organiser. I note too your co-operation with the Police and your efforts to unsuccessfully disentangle yourself from involvement.

[33]   You come to the Court with no previous convictions, but I accept that any sentence will bear more heavily on you as a foreign national.

[34]   So far as the these factors are concerned, apart from the plea factor, they,  or at least some of them, are more commonly than not raised by persons like yourself apprehended couriering drugs. The personal tragedy is that people like you nevertheless continue taking the change. You may only be a courier but without couriers, the importation of this drug and other drugs would be very difficult. Couriers are an integral part of this operation. The community is entitled to  and  must deter couriers. If we continue to get stupid people who are going to continue doing a horrible job, then all we can do is try and signal in advance that it is simply not worth it. The community can only do so if the Courts continue to impose firm sentences.

[35]   In your case and having particular regard to the plea of guilty, I have concluded that you should receive a reduction of three and a half years, in other words, to seven and a half years imprisonment, to take into account all the mitigating factors.

Minimum sentence

[36]   The Crown has submitted this is an appropriate case for the imposition of a minimum sentence, pursuant to s 86 of the Sentencing Act. Under this section the Court has a discretion to impose such a sentence if it is satisfied that what would otherwise be the minimum parole date is insufficient for all or any of the following purposes:

i)To hold you accountable;

ii)To denounce your conduct;

iii)To deter others; and

iv)To protect the community from you.

[37]   But any sentence imposed in your case will have, I have no doubt, a signal effect upon you. I have the feeling that it is highly unlikely that you will offend again.

[38]There remains however the predominant concern of deterrence.

[39]   I have concluded, by reference to the other comparable cases, noting the rather unusual circumstances relating to your involvement and the amount, that a minimum term should not be imposed in your case.

[40]You are therefore sentenced to seven and a half years imprisonment.

[41]Please stand down.