R v Soleymani - [2014] NZHC 2088

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-004-018458 [2014] NZHC 2088

THE QUEEN

v

HOSSEIN SOLEYMANI

Hearing: 5-6, 8, 13-16, 19-23, 26-27 May and 21 August 2014

Counsel:

S L McColgan for the Crown
M E Goodwin and G Ghahraman for the Prisoner

Sentence:

21 August 2014

SENTENCE OF DUFFY J

Counsel: M E Goodwin, Auckland

Solicitors: Meredith Connell, Auckland

Copy To: G Ghahraman, Auckland

R v HOSSEIN SOLEYMANI [2014] NZHC 2088 [21 August 2014]

[1] Mr Soleymani, you appear for sentence having been found guilty on 30 May

2014 of two counts for the possession of a class A controlled drug for supply, namely methamphetamine, under s 6(1)(f) of the Misuse of Drugs Act 1975. This offence carries a maximum penalty of life imprisonment.

[2] You were also found guilty of one count for the possession of a class B controlled drug for supply, namely pseudoephedrine, under s 6(1)(f) of the Misuse of Drugs Act. The maximum penalty for that offence is 14 years’ imprisonment.

Facts

[3] The methamphetamine offending involved a co-offender, Mr da Silva. Mr da Silva is someone who came to New Zealand from Japan on two occasions for the purpose of accepting deliveries of suitcases containing methamphetamine, extracting the drug from the suitcases, repackaging it and delivering it to you. Mr da Silva was acting under the direction of a man based in the Netherlands, whom the New Zealand Police (“police”) refer to as Michael O’Connor. Thus, you were part of what was an internationally organised supply of methamphetamine to this country. Further, you would have known something of this as the evidence at the trial showed that on the last occasion when you met with Mr da Silva, there were telephone communications beforehand between you and Mr O’Connor.

[4] On the first occasion, which was on or about 1 April 2012, you met with Mr da Silva and accepted a delivery of methamphetamine. Mr da Silva said in his evidence that he delivered 2.07 kilograms of methamphetamine to you. The evidence of Mr da Silva and the intercepted communications between him and Mr O’Connor are the only evidence that it was methamphetamine that you received on that occasion, though this was enough on which the jury returned a verdict of guilty. The weight of 2.07 kilograms is Mr da Silva’s estimate of the weight of the substance he found in the suitcase. In terms of the substance containing methamphetamine, Mr da Silva did not, nor could he say what the purity of that substance was.

[5] A few days after this delivery, you made a payment of $20,000 in cash to

Mr da Silva.

[6] In October 2012, Mr da Silva was apprehended by the police in possession of methamphetamine. He agreed to assist the police with their enquiries into the importation and distribution of this methamphetamine in New Zealand. When the suitcases containing this methamphetamine were intercepted by New Zealand Customs, they were found to contain 4.5 kilograms…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Soleymani

Details

AGLC: R v Soleymani [2014] NZHC 2088
Case: [2014] NZHC 2088
Decision Date: 21 August 2014

CaseChat Overview and Summary

Hossein Soleymani was convicted on two counts of possessing methamphetamine for supply and one count of possessing pseudoephedrine for supply. The legal issues before the court were to determine an appropriate starting point for the methamphetamine offences, considering the total quantity of the drugs involved, and the role played by Soleymani in the drug operation. The court also needed to decide on the impact of personal mitigating factors on the final sentence.

The court determined that the total amount of methamphetamine involved was 4.07 kilograms, which placed the offending within band four of the sentencing bands for methamphetamine supply. However, the court found that Soleymani's role was less significant than that of primary offenders in other cases, but more culpable than a mere courier. A starting point of 16 years' imprisonment was adopted to ensure consistency with the sentence of Soleymani's co-offender, Mr da Silva, while also reflecting Soleymani's actual role in the drug operation.

The court considered personal mitigating factors such as Soleymani's history of physical abuse and torture in Iran, his limited English proficiency, and the impact of imprisonment on his family. However, the court subordinated these personal circumstances to the importance of deterrence, as required by the Supreme Court in Jarden v R. A 10% reduction was granted for these mitigating factors, resulting in a final sentence of 15 years and 4 months' imprisonment for the methamphetamine offences, to be served concurrently with a 3-year sentence for the pseudoephedrine offence.

In conclusion, the court sentenced Hossein Soleymani to a total of 15 years and 4 months' imprisonment for the methamphetamine and pseudoephedrine offences, with all sentences to be served concurrently. The court also ordered the forfeiture and destruction of the drugs found in Soleymani's possession under the Misuse of Drugs Act.

Orders