R v Soleymani
[2014] NZHC 2088
•21 August 2014
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 PrisonerSentence:
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 of methamphetamine. Following Mr da Silva’s co-operation with the police, he became a protected witness. He carried out one further delivery of methamphetamine, on 15 November 2012, under police supervision. On this occasion, you expected to receive a two kilogram delivery of methamphetamine from Mr da Silva. However, only 10.1 grams of methamphetamine were placed in the backpack and the rest was comprised of a placebo substance. You were arrested shortly after the backpack containing the methamphetamine and placebo substance was delivered to you.
[7] The police and New Zealand Customs searched your home. They located various items used in the distribution of methamphetamine, including small snaplock bags and scales. Also found in your home were approximately 13,500 tablets, with a weight of 2.7 kilograms. These tablets contained pseudoephedrine, which is commonly used in the manufacturing of methamphetamine. It is estimated that the amount of tablet found in your possession could yield between 400 and 600 grams of methamphetamine.
Personal circumstances
[8] I now turn to your personal circumstances.
Prior convictions
[9] You have no prior drug-related convictions or convictions for serious criminal offending. In 1994, you were convicted and fined for careless driving. In
2003, you were convicted, fined and disqualified from driving for driving whilst your licence was suspended or revoked.
Pre-sentence report
[10] You are 48 years of age. You moved to New Zealand from Iran as a refugee in 1992. Your first marriage lasted 10 years, and you are the father of two daughters aged 19 and 17. Your present wife is presently in South Korea caring for her elderly mother, but intends to return to New Zealand shortly.
[11] You have been a co-owner or manager of several kebab shops throughout the Auckland area over the last 10 years. Your most recent business in Pukekohe has now been sold. You were raised as a Muslim but converted to Christianity. You say that you have been attending church for the past 10 years with your daughters, and you have maintained your commitment to your faith while on remand.
[12] You maintain that you had no involvement with the offending that is the subject of the present convictions and that you were never a drug dealer. You admit that you have regularly used methamphetamine after breaking your ankle, and that a friend introduced you to this drug.
[13] The pre-sentence report writer assessed your motivation to attend rehabilitation programmes as low and, given the serious of the offending, realistically recommended a sentence of imprisonment.
Submissions
[14] I now turn to the submissions that have been made to me today.
Crown submissions
[15] The Crown submits that your methamphetamine offending falls within the upper levels of band four of R v Fatu [2006] 2 NZLR 72 (CA), warranting a starting point in the vicinity of 17 years’ imprisonment.
[16] Regarding the quantity of methamphetamine, the Crown submits that although the majority of the delivery on 15 November 2012 was a placebo, you should be sentenced on the basis that the entire weight of the substance in the
backpack, being two kilograms, consisted of methamphetamine. When this is added to the first supply of 2.07 kilograms, the total amount of methamphetamine in your possession for the purpose of supply was 4.07 kilograms.
[17] As aggravating factors, the Crown submits that you had access to large amounts of cash to fund the purchase of methamphetamine and that the drug operation of which you were a part was well-established and sophisticated. The Crown submits that 4.07 kilograms of methamphetamine has a street value of over
$4 million.
[18] The items found in your home, including small snaplock bags, scales and pseudoephedrine tablets, indicates that you were involved in supplying methamphetamine and supplying precursor material to manufacturers. The Crown says that this factor points to the sophistication of the offending. The Crown also submits that you were a trusted member of this drug operation.
[19] As for the third delivery on 15 November 2012, Mr da Silva was asked to remain in New Zealand until such time as you had returned to the country. The Crown says this shows you were a significant player in this drug operation.
[20] The Crown submits that you played a significant role as the initial recipient of methamphetamine and the facilitator of the New Zealand distribution chain.
[21] The Crown submits that there should be an uplift to the starting point of one year to take into account the pseudoephedrine offending.
[22] The Crown submits that it is not aware of any aggravating or mitigating factors personal to you. The Crown emphasises that personal circumstances must be subordinated to the importance of deterrence, following the Supreme Court decision in Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612. The Crown submits that an end sentence of around 18 years’ imprisonment would be appropriate.
[23] The Crown does not seek a minimum period of imprisonment because no such period was imposed on Mr da Silva. The Crown submits that in this way, I can achieve parity with the sentence that was imposed on Mr da Silva.
Offender’s submissions
[24] Mr Soleymani, your counsel submits that a starting point of 14 to 15 years’
imprisonment is appropriate.
[25] Your counsel accepts that based upon the quantity of methamphetamine involved, your offending falls within band four of Fatu. However, your counsel submits that the limited role that you played means that your offending falls within the lower end of band four.
[26] Your counsel submits that regard must be had to the starting point set for Mr da Silva for parity concerns between co-offenders. As Mr da Silva was sentenced on the basis of the further two kilograms of methamphetamine imported in February/March 2012, your counsel submits that a starting point for you that is greater than Mr da Silva’s 15 year starting point would be perverse. Further, Mr da Silva was involved in the complex process of cleaning and packaging the methamphetamine, whereas you were only responsible for the delivery of payment and receipt of the methamphetamine.
[27] Regarding the nature of the offending, your counsel submits that the evidence presented at trial did not go beyond establishing you as the person who received methamphetamine and delivered payments of cash. Further, there was no evidence at trial indicating financial gain and your financial records do not show exceptional expenditure, or an excessive lifestyle. In response to Crown submissions that you had access to “large amounts of cash”, your counsel submits that it was never the Crown’s case at trial that the cash supplied was yours, or that you were able to source that amount of money freely. My recall of the evidence is that you made a payment of $20,000 to Mr da Silva for the April delivery of methamphetamine. No evidence was led at the trial to indicate your involvement in the inception or planning of this drug operation.
[28] Further, your counsel rejects the Crown submission that you were the “principal recipient” of the methamphetamine, as it is unknown who the principal New Zealand-based party was in the importation network.
[29] Your counsel submits that the mitigating factors that I should take into account are that you should be treated as a first time offender, and your personal circumstances. The latter includes the hardship and isolation that a term of imprisonment would cause due to your limited English, the impact on your close relationship with your teenage daughters, and the lengthy periods of separation between you and your wife that would ensue. Further, you have already suffered extraordinary hardship prior to arriving in New Zealand as an asylum seeker in 1992.
[30] Your counsel has provided me with a copy of the decision of the Refugee Status Appeal Authority, which granted you refugee status. The decision shows that while in Iran, you were taken to a prison in Tehran, where you were physically abused to what the Refugee Status Appeal Authority considered was the level of torture. Your counsel submits that physical abuse at this level, albeit in a prison in Tehran, will make it more difficult for you to serve a sentence of imprisonment in New Zealand.
[31] Once the mitigating factors are taken into account, your counsel submits an
end sentence in the range of 12 to 13 years’ imprisonment would be appropriate.
Purposes and principles of sentencing
[32] In order to determine an appropriate sentence, the Court must take into account the relevant purposes provided for in s 7 of the Sentencing Act 2002. These include: the need to hold you accountable for the harm done to the community by your offending; to promote in you a sense of responsibility for, and acknowledgement of, the harm of your offending; to denounce and deter your conduct; to protect the community; and to assist in your rehabilitation and reintegration into the community.
[33] Regarding the principles of sentencing under s 8 of the Sentencing Act, the Court must take into account the gravity of the offending, the seriousness of the type of offending, consistency with appropriate sentencing levels and similar offenders who have committed similar offences, and the need to impose the least restrictive outcome appropriate in the circumstances.
Sentencing approach
[34] Sentencing involves a three-stage approach: see R v Clifford [2012] 1 NZLR
23. First, I will set a starting point for the lead offence, which is the possession of methamphetamine for supply. I will then consider an uplift to reflect the totality of the offending as reflected by the other charge. Secondly, I will make allowance for any personal mitigating factors. There are no personal aggravating factors in this case. The next step, which can involve setting the appropriate discount for a guilty plea, is not applicable in your case.
Tariff case
[35] The sentencing bands for offending involving the supply of methamphetamine were established by the Court of Appeal in the tariff judgment of R v Fatu. At [34], the relevant bands are set out:
[34] The result is that we adopt the following sentencing bands in cases involving the sale or supply of methamphetamine:
(a) Band one – low-level supply (less than 5 g) – two years’ to four years’ imprisonment.
(b) Band two – supplying commercial quantities (5 g to 250 g) –
three years’ to nine years’ imprisonment.
(c) Band three – supplying large commercial quantities (250 g to 500 g) – eight years’ to 11 years’ imprisonment.
(d) Band four – supplying very large commercial quantities
(500 g or more) – ten years’ to life imprisonment.
[36] The Court of Appeal also noted at [31]:
[31] Our sentencing ranges overlap between categories. Where an offender fits within any particular band will depend not just on the quantity
and purity of the drugs involved but also the role played by the offender. Those who are primary offenders can expect starting point sentences towards the higher end of the relevant band, with the converse applying to those whose role is less significant.
[37] The Crown relies upon R v Gray CA 209/91, 13 April 1992 and R v Huang [2008] NZCA 46 for the statement of principle that an offender should be sentenced upon the quantity of drugs that he or she intended to receive, and that the replacement of drugs with a placebo should not be considered. I accept this submission.
[38] In R v Gray, where Customs had replaced a package of LSD with placebo tablets, McKay J said:
While the Judge accepted that he was only convicted of having 200 tabs of LSD, he considered that the offending should be dealt with on the basis that the applicant believed that the 5000 tabs which he had were all LSD. He said it would be quite wrong for him to sentence the applicant on the basis that this was only an incident intended to involve only 200 tabs of LSD.
Counsel realistically accepted that the Judge was entitled to take into account the higher number, but he submitted that the fact that the applicant was never in reality in possession of more than 200 tabs should be regarded as a mitigating factor. We are unable to accept this submission. It would suggest a range of sentences depending on whether the authorities left the whole package intact, or whether they removed half, or 4000, or 4800. The applicant could only be sentenced for possession of 200 tabs, but the seriousness of that offence is measured by the circumstance that the total quantity sent him, and of which he intended and believed he was taking possession, was 5000 tabs.
[39] This approach was endorsed in R v Huang where the Court of Appeal said:
[54] … Mr Comeskey contended that Ms Huang was in possession of only 19 grams of methamphetamine, i.e. that the whole of the placebo should be excluded. That submission was untenable in the face of R v Gray CA209/91 13 April 1992 …
[55] … The Judge was required to sentence her on the basis that, when apprehended, Ms Huang was in possession of eight kilograms of methamphetamine i.e. including the placebo. Quite apart from the statutory presumption, the evidence at trial pointed strongly to an intention on her part to supply that methamphetamine to others. …
[40] Thus, the quantity of the placebo will be disregarded for sentencing purposes. This means I will approach the November possession for supply charge as if it involved two kilograms of methamphetamine.
Setting a starting point
[41] In setting a starting point, I must be consistent with previous cases cited by the Crown and defence counsel.
Purity/quantity concerns
[42] I will first address the question of the unknown quantity and purity of the
April delivery of methamphetamine to you.
[43] I note that your counsel has not objected to the Crown’s quantification of the
methamphetamine involved, nor has he raised any arguments relating to purity.
[44] The issue of purity is discussed in Fatu. At [28], the Court of Appeal acknowledged that the maximum purity of methamphetamine substance sold on the street is 80 per cent. Further, “the purity of methamphetamine which is sold as “P” is usually in the range of 70 to 80 percent and almost always over 60 percent”.
[45] In Fatu, the Court of Appeal set an assumption that the tariff bands apply to methamphetamine of at least 60 per cent purity. The Court acknowledged the policy reasons behind this stance:
[29] A practical consideration that we must allow for is that the determination of the precise purity of a methamphetamine sample requires a time-consuming and costly process (and is far more expensive than what is required simply to determine the presence of the drug).
[30] The sentencing bands which we propose are to apply by reference to the weight of what the market would regard as “P”, ie a form of the drug in which the purity is of the order of, or exceeds, 60 percent. In most cases, it will be relatively obvious, without expensive analysis, whether the drug involved is indeed “P”. The prosecution position as to this should be stated in the summary of facts. If disputed by the defendant, such dispute should be signalled, and the issue can then be determined by the Court (presumably after analysis of the drug). In cases where the purity levels are less than what would be expected of “P”, the sentencing response can be less stern.
[46] In this case, an approved laboratory has certified that methamphetamine samples relating to the November 2012 delivery had a purity of between 78 and
81 per cent. There is nothing to indicate that the April delivery would have fallen below the 60 per cent purity that was recognised in Fatu.
[47] Regarding the issue of quantity, the courts have not been too troubled with determining a precise quantity if it is scientifically unknown. In R v Chapman HC Auckland CRI-2008-004-17488, 25 August 2010, the offender pleaded guilty to supplying, and conspiring to supply methamphetamine. Lang J discussed two police operations that the offender was the subject of. In the first, it was proved that the offender was involved in supplying 220 grams of methamphetamine, which would place him in the top end of band two in Fatu. However, the offender supplied an unknown quantity in the second operation.
[48] Despite the quantity being unknown, Lang J was satisfied that the second operation offending meant that the offender was involved in the supply of more than
250 grams. This quantity crossed the threshold into band three, and a starting point
of 10 years’ imprisonment was adopted.
[49] I propose to approach the quantity of the methamphetamine on the basis you had a total amount of 4.07 kilograms of which two kilograms was 60 per cent purity, and the balance was 78 to 81 per cent purity.
Relevant case law
[50] I now turn to the relevant case law.
[51] In R v Huang HC Auckland CRI-2006-019-8458, 8 May 2009, Woodhouse J sentenced two offenders for methamphetamine offending. The amount of methamphetamine involved for the supply charge was 4.3 kilograms and an additional one kilogram for the possession for supply charge. Importantly, Woodhouse J noted that “to all intents and purposes there is no real difference” between the offence of supplying and the offence of possession for supply: [2]. Despite contentions that one offender was simply a middle man between associates in China and Auckland, Woodhouse J found that he had handled large sums of
money and that he “played a very important role well beyond that of a courier”: [14].
Further, the offender was described as having: [15]:
[A] pivotal and controlling position … notwithstanding the fact that with
some of it you may have been subject to direction from others.
For this offender, Woodhouse J adopted a starting point of 20 years’ imprisonment.
[52] The other offender was convicted of six charges of supplying a little over two kilograms of methamphetamine to the first offender. Woodhouse J adopted a starting point of 17 years’ imprisonment for the second offender.
[53] In R v McQuade HC Auckland CRI-2006-019-8458, 10 September 2008, Mr McQuade was sentenced for 19 drug-related offences, including eight supply charges and one possession for supply charge. Mr McQuade purchased methamphetamine and on-sold the drug in some 225 meetings. Keane J considered the offender to be a methamphetamine wholesaler as he made his purchases directly from the importer’s intermediary. Mr McQuade was sentenced on the basis that he supplied, or intended to supply, 1.5 kilograms of methamphetamine. For the lead offence of supply and possession for supply of methamphetamine, a starting point of
17 years’ imprisonment was adopted.
[54] In R v C HC Auckland CRI-2006-004-25638, 17 August 2007, Lang J sentenced the offender on 20 charges of supplying methamphetamine and one charge of possession for supply. He described the offender as a wholesaler, who was “heavily involved in the distribution of methamphetamine in the Auckland area”: [3]. The amount involved was just over one kilogram of methamphetamine. Lang J adopted a starting point of 15 years’ imprisonment, taking into account the offending as at the “very upper end of the scale of distribution” and the large amounts of cash involved.
[55] In R v Zhou HC Auckland CRI-2006-019-8458, 10 March 2009, the offender pleaded guilty to 20 charges of supplying methamphetamine, nine charges of possession for supply, one charge of offering to supply and one charge for conspiring to supply methamphetamine. Mr Zhou was sentenced on the basis that he supplied,
or came into possession for supply of 3.768 kilograms of methamphetamine. One of Mr Zhou’s principal customers was Mr McQuade, whose sentencing I earlier referred to. Harrison J considered that Mr Zhou played a “relatively high position” in a major distribution chain, as he was only “one place below the New Zealand overseer”: see [21]. A starting point of 20 years’ imprisonment was adopted for all charges.
[56] Mr Soleymani, your counsel cites Chen v R [2010] NZCA 552. In that case, Mr Chen partially succeeded in appealing against an end sentence of 13 years and six months’ imprisonment on two charges of possession of methamphetamine for supply and one charge of importation. The appeal was partially successful in that the minimum term of imprisonment was reduced.
[57] In Chen, the police located 1,092 grams of methamphetamine in Mr Chen’s home and, at a later date, 997.8 grams of methamphetamine was the subject of a controlled delivery, which was picked up by Mr Chen’s associates, who took the drugs to Mr Chen’s home. A further search of Mr Chen’s home found this methamphetamine and a further 900 grams. A total quantity of 2,990 grams was involved. The starting point for the totality of the offending of 18 years’ imprisonment was upheld on appeal. In fact, the Court of Appeal noted that this starting point was “generous … having regard to the quantities involved”: see [20].
[58] The second case your counsel cites is R v Ang HC Auckland CRI-2008-004-
12540, 18 November 2008, where the offender was sentenced for importation and possession of methamphetamine for supply. The offender arrived on a flight from Hong Kong with a co-offender. In bags strapped to their bodies was four kilograms of methamphetamine. In that case, the Court recognised the role of the offender as simply a courier or “mule”, and a starting point of 16 years’ imprisonment was reduced to 15 years to account for the offender’s limited role in the chain of supply.
Analysis
[59] In setting a starting point, the role that you played, Mr Soleymani, is important, as well as the quantity of methamphetamine involved. For reasons given
earlier, I have adopted a starting point based on the 4.07 kilogram figure that the
Crown has presented.
[60] I am not persuaded by your counsel’s submission that your role was a “low level intermediary, comparable to a mule in importation cases”, or a “catcher”.
[61] An example of low level culpability is the offender in R v Ang, where Mr Ang was introduced to the idea of carrying drugs into New Zealand as a means of earning money. Your involvement in this drug operation was clearly greater than that. This was an international, illicit drug operation. The items located at your home point towards you also being involved in some degree as a wholesale supplier of methamphetamine. It cannot be disregarded that snaplock bags and scales were found at your property. Even if filled ounce bags were not found, the items that were found, including the snaplock bags with traces of white powder, which were consistent with the size of ounce bags and the scales, suggest that you were more than a mere courier, or mule.
[62] On the other hand, I do not accept the Crown’s submission that you had access to large amounts of cash, and that you had a significant role in the New Zealand end of this illicit drug-trafficking operation.
[63] The transcript of the intercepted conversations between Mr da Silva and Mr O’Connor, at pp 114 to 115, suggests that there are a group of people in New Zealand working in this illicit operation, with the controller living in another country and his workers being in this country. The Crown points to you having a trusted role in the operation because there was the suggestion that Mr da Silva had to wait in New Zealand until a date in November when you had returned from Iran. Your counsel has pointed out that earlier in November (while you were overseas), there was a time when Mr O’Connor was pressing Mr da Silva to take part in a delivery, and Mr da Silva was reluctant to do so.
[64] With regards to the case law that I have referred to, I consider that your offending is clearly less serious than Mr Wei, who was the primary offender in R v Huang, where a starting point of 20 years’ imprisonment was adopted. Your
offending is also less serious than Mr Zhou in R v Zhou, as he was found to be well up the hierarchy of that illicit drug operation.
[65] As is evident, there is a range of starting points depending on the role of the offender. I view your role as more than a mere mule, but much less culpable than some of the offenders cited in the above cases. I see you as being the primary or initial recipient of the two methamphetamine deliveries and having a trusted role in what appears to me to be a tightly-knit and connected group of persons involved in the supply of methamphetamine in this country under the control of someone who is offshore. I consider your offending is comparable to that of Mr Chen and Mr McQuade. Ordinarily, therefore, I would see a starting point of 17 to 18 years’ imprisonment as appropriate here.
[66] However, your counsel has referred to the starting point of 15 years’ imprisonment that was adopted in the sentencing of Mr da Silva. I do not have a copy of the sentencing notes for Mr da Silva. However, I learned something about his level of offending in the course of your trial. Mr da Silva admitted to three occasions when he had taken possession of shipments of methamphetamine, which he had repackaged and delivered to other persons, on two such occasions to yourself. Whilst he appears to have been no more than a drug mule who conveyed the methamphetamine once it arrived in New Zealand to other persons, the fact he did this on three occasions shows that after the first such occasion, he would have known exactly what he was doing, and how much methamphetamine was involved as he was the one who weighed it and repackaged it. I find it surprising, therefore, that a starting point of 15 years’ imprisonment was adopted in his sentencing. His level of offending appears to me to warrant a higher starting point than that.
[67] Maintaining parity between co-offenders is important. The Sentencing Act requires consistency in sentencing. On the other hand, as was recognised by the Court of Appeal in Macfarland v R [2012] NZCA 317 at [24]:
A lenient or unusually merciful sentence extended to one offender cannot create an expectation that other offenders will receive the same indulgence.
And in Henwood v R [2013] NZCA 528, the Court of Appeal at [19] said that “the difference must be unjustifiable or gross” before it would interfere with a sentence on appeal on the ground of disparity.
[68] I propose to adopt a starting point of 16 years’ imprisonment. This falls between the 15 year starting point applied to Mr da Silva and the 17 to 18 year range of starting points that would ordinarily apply here. I have adopted 16 years’ imprisonment as a starting point simply to ensure that the difference between the starting point in Mr da Silva’s sentencing is not unjust or gross.
[69] It follows that I reject your counsel’s submission that a starting point of 14 to
15 years should be adopted to achieve parity with Mr da Silva. In light of the case law above, I do not see that a starting point of 14 or 15 years can be justified.
[70] By adopting a starting point of 16 years’ imprisonment, it also follows that I reject the Crown’s submission that concerns to achieve parity of sentencing with that of Mr da Silva can be addressed simply by not imposing a minimum period of imprisonment on you.
Possession of pseudoephedrine
[71] A sentence is required for the possession of pseudoephedrine for supply charge. However, as the sentences will be served concurrently, an adjustment is required to the overall sentence to properly reflect the totality of the offending.
[72] The Crown submits that the starting point for this offending alone would be in the vicinity of four to five years’ imprisonment. However, taking into account the totality principle, the Crown submits that an uplift of one year is appropriate.
[73] I agree with the Crown’s submission in this regard. Therefore, I impose a one
year uplift on the starting point of 16 years, which then takes the sentence to one of
17 years’ imprisonment.
[74] The Crown submits that no personal aggravating or mitigating factors apply to you. You have not previously been convicted of drug-related offending.
[75] Your counsel submits a number of mitigating factors, including a discount for previous good character. I agree with your counsel that the earlier traffic offending is historic and unrelated with drug offending. For present sentencing purposes, I propose to treat you as a first time offender, and so I give you some credit for good character.
[76] Your counsel also raises a number of personal circumstances as mitigating factors. Under s 9(4)(a) of the Sentencing Act, this Court is allowed to take into account any mitigating factors that the Court thinks fit. However, the Supreme Court has made clear in Jarden v R:
[12] … in sentencing those convicted of dealing commercially in controlled drugs the personal circumstances of the offender must be subordinated to the importance of deterrence …
[77] Further, in Samuel v R [2012] NZCA 376, the Court of Appeal said:
[22] We are satisfied that the circumstances here are not so extreme as to warrant any further discount. As in Jarden, there was no causal link between the illnesses and deaths of the appellant's relatives and the offending. The only question is whether these personal circumstances warrant a reduction in sentence on purely compassionate grounds. We do not think so. In this case the protection of the community was seen by the sentencing Judge as important. We agree with that assessment. We are not persuaded that any further discount should be given on compassionate grounds.
[78] In that case, the appellant’s stepfather had died prior to sentencing, and his father was terminally ill and died within two weeks of the sentencing. Further, the appellant’s brother had died recently due to brain cancer. The Court of Appeal saw no causal link between the illnesses and deaths of the appellant’s relatives and the offending. The Court of Appeal did not consider these personal circumstances warranted a reduction in sentence on purely compassionate grounds.
[79] I accept that English is not your first language, so that it may be more difficult for you to serve a sentence of imprisonment in this country than it would for someone with a good grasp of English. Though I note that you have been in New Zealand since 1992 and that you have run various businesses here, so you must have some grasp of the English language.
[80] There is also your history as a refugee to this country, though on the other hand, I note that you have not repaid this country well for assisting you. Illicit drugs like methamphetamine are a scourge on our community. They do immense harm. Your offending has allowed that scourge to continue. It is important, therefore, that this type of offending receives a sentence that focuses on deterrence and denunciation. Nonetheless, you deserve some recognition for your previous good character.
[81] I also consider that some recognition needs to be made for the more severe impact that a sentence of imprisonment is likely to have on you, given the level of physical abuse and torture that you experienced in Iran. I can understand that as that torture occurred in an Iranian prison, a return to a prison environment, even though in this country, would be more distressing for someone in your position than for offenders in general.
[82] I propose, therefore, to give a reduction of 10 per cent. I have not taken into account the separation and isolation from your wife and daughters because I do not consider that requires any further reduction. Nor have I included the difficulties with the English language in this reduction. The result of the 10 per cent for mitigation brings the sentence to one of 15 years and four months’ imprisonment.
Result
[83] Mr Soleymani, please stand; it has come to the time to formally pass sentence.
[84] On the two charges of possession of methamphetamine for supply, you are sentenced to 15 years and four months’ imprisonment on each charge. On the charge of possession of pseudoephedrine for supply, you are sentenced to three years’ imprisonment. All sentences are to be served concurrently. This means, Mr Soleymani, that the total term of imprisonment will be no more than 15 years and four months’ imprisonment.
[85] I also make an order under s 32 of the Misuse of Drugs Act for the forfeiture and destruction of the drugs found in your possession.
[86] Stand down please.
Duffy J
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