R v Tanakura HC Auckland CRI 2010-004-4085

[2010] NZHC 1037

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-004-4085

BETWEEN  THE QUEEN

AND  YOSHINORI TANAKURA AND  TOSHIYUKI TODA

Hearing:         25 May 2010

Counsel:         D Johnstone for Crown

C Robertson for Prisoner Tanakura
J Kovacevich for Prisoner Toda

Sentencing:     25 May 2010

SENTENCING NOTES OF MILLER J

[1]      Gentlemen, you appear for sentence today for importing methamphetamine

into New Zealand.  There is one charge:

Charge	Section	Max penalty	Section
Importing     a     Class     A controlled  drug, methamphetamine.	Section       6(1)(a), Misuse    of    Drugs Act 1975	Life imprisonment	Section 6(2)(a) Misuse of Drugs Act 1975

[2]      You face a maximum sentence of life imprisonment.

[3]      The narrative begins on 12 September 2009, when a couple named Takiguchi arrived in Auckland from Indonesia via Australia, carrying approximately two kilograms of methamphetamine, having a street value of up to $2m.  This had been

arranged  by  a  contact  in  Malaysia  called  “Andy”.    On  clearing  customs  they

R V TANAKURA AND TODA HC AK CRI 2010-004-4085  25 May 2010

contacted Andy, who arranged for the drugs to be handed over to two people in New

Zealand.

[4]      On 8 November they again imported methamphetamine.   On this occasion they were caught and found to have 1978.4 grams, or just under 2kg, of methamphetamine.  They agreed to assist the police.  They made contact with Andy, who arranged for two contacts to uplift the suitcases from a hotel.  Ms Takiguchi was paid $15,000 by one of the contacts, who also face charges.

[5]      The two of you imported methamphetamine in a very similar way on 11

November 2009.  You are friends of the Takiguchis, who apparently encouraged you to import the drugs in return for payment and a free trip to New Zealand.   This importation had also been arranged by Andy.   For carrying the drugs into New Zealand you were to be paid about $7,500 each.

[6]      You apparently swapped  your luggage in Malaysia for bags supplied  by Andy.   The drugs were hidden in the linings.   You flew to Auckland via Sydney. Customs had been forewarned by the Takiguchis, and you were intercepted.  Your luggage was examined.   It was found to contain approximately four kilograms of methamphetamine, with a potential street value of up to $4m.  That was split equally between your bags.  Mr Toda admitted his role in the importation, stating that he had done it for money, while Mr Tanakura denied any knowledge of the methamphetamine in his suitcase.  It is not in dispute that the methamphetamine was

‘pure’ in that its purity was 60 per cent or more.

[7]      Both of you since claimed, in interview with the probation officer, that you had no knowledge of the drugs in your suitcases.  As counsel have explained to you, I must take as proved all facts necessary to the crime to which you have pleaded guilty.   That includes knowledge that you were carrying a controlled drug.   I am prepared to accept that you did not know just how much methamphetamine you were carrying, but I do not accept that knowledge of the amount would have made any difference to your decision to proceed.  I record you have today accepted that you knew you were carrying controlled substances.

[8]      I have outlined the three importations because the story explains how you became involved.  Of course you are not responsible for the earlier two importations, and I will not take them into account when sentencing you.   On the contrary, I approach sentencing on the basis that the Takiguchis procured you to import the drugs into New Zealand and put you in contact with Andy.  Your role was that of courier, for which you were paid a sum that can only be considered modest having regard to the remarkable risk that you undertook.

[9]      The Takiguchis were for sentence today, but I have had to adjourn their sentencing.   They pleaded guilty to the second importation on the basis that the police would not charge them in relation to the first.  The Crown has now decided that they ought to have been charged with both, and an application for stay is to be made.

[10]     I do need to say something about your culpability relative to that of the Takiguchis, however.  On the information before me your culpability is materially less than theirs.   They imported the same quantity, but over two trips, which demonstrates persistence.  And, importantly, they recruited you.  For that they were paid about $5,000.  None of this is to deny that there may be additional mitigating factors available to them.

[11]     Guilty  pleas  were  entered  by  Mr  Toda  on  22  December  2009,  and  by Mr Tanakura on 5 March 2010.  Both of you had indicated at an earlier stage that you would accept responsibility.

Personal circumstances

[12]     Mr Tanakura, you are aged 41, and a Japanese national.  You have a 7-year old  son.    You  are  a  construction  worker  by  trade.    You  report  no  previous convictions, and there appears to be no pattern of drug or alcohol abuse.  Your health is good.  In interview with the probation officer you say that you were offered a free trip to New Zealand, and although you were given new suitcases in Malaysia you were ignorant of anything in them.  You blamed others, presumably the Takiguchis, for your offending.

[13]     Mr Toda, you are aged 53 and a salesman by trade.  You are separated and have one adult child.  You too appear to be a first offender.  You also report no drug or alcohol abuse.  Your health is generally good although you have diabetes.  As I have said, you also denied knowledge of the drugs in interview with the probation officer.

[14]     You both express regret for the great harm that would have been done to New Zealand society had you succeeded in this importation, as well you might, and you have apologised for the discredit that you have brought on Japanese society.  Your apologies are noted.

Sentencing principles

[15]     Your offending falls into a category for which a starting point is somewhere between 12 years and life imprisonment.[1]   The Crown invites me to adopt a starting point of 14-16 years imprisonment.  Mr Robertson argues for a starting point of 12-

14.

[1] R v Fatu [2006] 2 NZLR 72.

[16]     When setting the starting point, it is necessary to identify the offenders’ culpability.  Each of you was a courier, and your culpability was lower than that of those who organised the importation.  You were encouraged by the Takiguchis, and I am prepared to accept that you did not know just how much methamphetamine was involved.  Nonetheless the role of a courier is an essential one, and this offending was characterised by the organisation, the drive for profit, and the efforts at concealment that characterise the most serious drug offending.  The quantity, 4kg, was very substantial.

[17]     I have considered a number of cases which I will list in my sentencing notes.[2]

These cases lead me to adopt a starting point of 13 years for each of you.  I do not think that any distinction need be drawn between you.

Personal aggravating factors and mitigating factors

[2] R v Wickremasinghe HC Auckland TO13408, 28 March 2008;  R v Chan [2009] NZCA 528; R v Wong [2009] NZCA 440, 28 September 2009, R v Wong [2009] NZCA 332, 29 July 2009, R v Nguyen [2009] NZCA 239, 9 June 2009; R v Aram [2007] NZCA 328, 2 August 2007; R v Shaida Alt cit R v Graaf [2007] NZCA 43, 6 March 2007; R v Law HC Auckland CRI 2008-004—6039, 13 May 2008; R v Javid HC Auckland CRI 2005-004-14044, 4 September 2007.

[18]     There are no personal aggravating factors.  I will treat you as first offenders. [19]     With respect to mitigating factors, I have noted that you are Japanese citizens

with no connections in this country.   Serving your sentence far from home will impose considerable hardship upon you and your families.  There is no evidence of previous bad character.  For these matters I will deduct, as the Crown suggests, one year.

[20]     Each of you has pleaded guilty and you are entitled to a discount for that.  I agree with the Crown that the appropriate discount for Mr Toda is perhaps as much as 33 per cent, while that for Mr Tanakura might be as much as 30 per cent.

[21]     I do not accept that there real remorse of the tangible kind that would admit an additional discount.  You are undoubtedly regretful, but as I have said, you have denied responsibility in your interview with the probation officer.

Decision

[22]     Mr Tanakura, you are sentenced to eight years, five months imprisonment. [23]       Mr Toda, you are sentenced to eight years, one month imprisonment.

Minimum period

[24]     The Crown asks me to impose a minimum period of imprisonment to reflect the harm done to the community by methamphetamine and to deter others.   This means the minimum period before you are eligible for parole.

[25]     It is almost invariably the case that in serious drug offending the criteria for a minimum  period  will  be  made  out.[3]      That  is  so  because  this  offending  is characterised by a desire for profit and indifference to the damage done to the community by methamphetamine.  Those considerations are present here.  The need for deterrence and denunciation is very high.  Further, you will be deported as soon as  you become eligible for parole, meaning that you will not be subject to the

[3] R v Wong [2009] NZCA 332 at [21].

disciplines of supervision and risk of recall should you reoffend.

[26]     Accordingly, a minimum period is necessary.  The minimum period may be as high as two-thirds of the sentence that I have imposed.  In your case, however, I propose to adopt a lesser period having regard to your role in the offending, the modest amount you stood to gain, and your personal circumstances.  The minimum period will be 50 per cent of the sentence I have imposed upon each of you.

[27]     You may stand down.

Miller J

Solicitors:

Crown Solicitor’s Office, Auckland for Crown