R v Uputaua
[2017] NZHC 2320
•25 September 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2016-092-11616 [2017] NZHC 2320
THE QUEEN
v
FRED UPUTAUA
Hearing: 25 September 2017 Appearances:
L Radich for Crown
D Young for DefendantSentence:
25 September 2017
SENTENCING REMARKS OF LANG J
R v UPUTAUA [2017] NZHC 2320 [25 September 2017]
[1] Mr Uputaua, you have now pleaded guilty to a charge of being in possession of 14.9 kilograms of methamphetamine for supply, attempting to import methamphetamine on two occasions and two charges of being in possession of cocaine for supply. You pleaded guilty after I provided you with a sentence indication on 11 August 2017.1
[2] I do not propose to traverse the facts of your offending again because they are fully set out in my sentence indication remarks, and these will be annexed and form part of these remarks. I reached a conclusion that the charge of being in possession of 14.9 kilograms of methamphetamine for the purpose of supply warranted a starting point of 15 years imprisonment. I then added an uplift of two years to reflect two charges of attempting to import methamphetamine. The first of those charges related to the attempted importation of 350 grams of methamphetamine, whilst the second related to the attempted importation of 1.3 kilograms of methamphetamine.
[3] I added a further uplift of one year to reflect the two charges of being in possession of cocaine for supply. This related to two separate instances of possession. The first related to 1.9 kilograms of cocaine. This was found in your possession at the time that the 14.9 kilograms of methamphetamine was found in your possession. In addition, the police found a further quantity of 31.7 grams of cocaine at the address at which you were then living.
[4] This produced an end sentence of 18 years. I indicated I would give you a deduction of around 20 per cent, or three years nine months, to reflect guilty pleas if you were to enter them shortly after the hearing. You duly accepted that indication.
[5] The only issue I now need to determine is whether to reduce the sentence further to reflect any other mitigating factors that the pre-sentence report has brought
to light.
1 R v Uputaua [2017] NZHC 1921.
[6] On your behalf, Mr Young suggests that several factors warrant a further discount. The first of these is that you were on restrictive bail conditions for a considerable period prior to the date on which you entered your pleas. In some circumstances the Court can provide a discount to reflect restrictive bail conditions, but these must generally constitute a considerable intrusion on the freedom of movement of the offender before they can be given discrete recognition. In your case, your bail conditions required you to observe a daily curfew between the hours of 10 pm and 7 am. I do not consider that to be an overly onerous restriction. Furthermore, in the weeks leading up to the sentence indication hearing you were in breach of those conditions on several occasions because you were absent from your address when the police visited after 10 pm. For those reasons, I do not consider there can be a further discount to reflect restrictive bail conditions.
[7] Next, your counsel submits that you demonstrate good qualities as are shown in the references provided to me. Furthermore, the brunt of the weight of the sentence to be imposed on you will be borne by your family. You have four young children and a devoted partner. They will undoubtedly suffer considerably whilst you are away. I accept unreservedly that this is the case. Nevertheless, it is you and you alone who have brought your family to this point. Had you thought about that before you agreed to assist Mr Le’Ca and others then you would not be sitting where you are now.
[8] It is not open to me to provide any discount relating to previous good character because you have a number of previous convictions. The most serious of these are convictions for aggravated burglary and wilful damage. You were sentenced to three years six months imprisonment on those charges on 12 September
2003. I accept without reservation that you have no previous convictions for drug related offending, but this is the absence of an aggravating factor rather than the presence of a mitigating factor. For those reasons I cannot give you any further discount to reflect good character or the effect on your family of the sentence you must now serve.
[9] The only real issue to be determined is whether I should apply a further discount to reflect your remorse. This is expressed in two ways. First, you
expressed remorse to the probation officer who prepared the pre-sentence report. In addition, you have written a letter to the Court setting out your remorse and feelings of regret for the offending you have committed.
[10] Judges are always reluctant to take expressions of remorse such as these at face value. Generally speaking, they reflect the fact that the offender feels remorse for the situation which he or she is currently in. Usually the most tangible form of remorse is to be found where the offender has a degree of insight into the reasons for the offending and the effect that it has on the community. The probation officer said that although you expressed remorse, you were also reluctant to talk about your offending openly, and you were unable to clarify your motivation for committing these offences. Furthermore, your insight into the causes of your offending was said to be limited.
[11] Those comments obviously call into question the genuineness of the remorse that you have expressed. Nevertheless, I am prepared to make an allowance for this to reflect the fact that I do consider you have a degree of genuine remorse. As I advised you at the sentence indication hearing, however, it is not possible for discounts for personal circumstances to be large. In cases of very serious drug offending, and this is undoubtedly very serious, the courts have limited room within which to make allowance for mitigating personal factors.
[12] I propose to reduce the end sentence by six months to reflect your remorse. I also propose to make a small adjustment to the minimum term of imprisonment that I indicated at the sentence indication hearing.
Sentence
[13] Mr Uputaua, on the charge of being in possession of 14.9 kilograms of methamphetamine for supply, you are sentenced to 13 years nine months imprisonment. On the charge of attempting to import 1.3 kilograms of methamphetamine, you are sentenced to seven years imprisonment. That sentence, and all the others I am about to impose, will be served concurrently with the lead sentence imposed on the charge of being in possession of methamphetamine for supply.
[14] On the charge relating to the attempted importation of 350 grams of methamphetamine, you are sentenced to three years imprisonment. On the charge of being in possession of 1.9 kilograms of cocaine for supply, you are sentenced to seven years imprisonment. On the charge of being in possession of 31.7 grams of cocaine, you are sentenced to one year imprisonment.
[15] On the lead charge of being in possession of methamphetamine for supply, you are ordered to serve a minimum term of six years nine months imprisonment before being eligible to apply for parole.
[16] Stand down.
Lang J
Solicitors:
Kayes Fletcher Walker, Auckland
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT
2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-092-11616 [2017] NZHC 1921
THE QUEEN
v
FRED UPUTAUA
Hearing: 11 August 2017
Appearances: K Hogan for Crown
D Young for Defendant
Judgment: 11 August 2017
SENTENCE INDICATION OF LANG J
[1] Mr Uputaua faces charges of being in possession of methamphetamine for supply, attempting to import methamphetamine and being in possession of cocaine for supply. The maximum penalty for the first and last of those charges is life imprisonment. The maximum penalty for the charge of attempting to import methamphetamine is ten years imprisonment.
[2] Mr Uputaua seeks a sentence indication in respect of all three charges. This is an indication of the sentence the Court would impose in the event Mr Uputaua was to enter guilty pleas to all three charges within the near future. In the event that he does not accept the sentence indication and is later found guilty at trial, the sentence indication is of no force and effect. In that event the trial Judge will sentence Mr Uputaua based on his or her appreciation of the overall culpability of the offending as disclosed at trial
The facts
[3] Given that this is a sentence indication, I can state the background facts
shortly. They are contained in a summary of facts prepared for today’s hearing.
[4] The charges of attempting to import methamphetamine arose as a result of two separate incidents. On 28 October 2015, Customs Officers in Thailand intercepted a package containing 350 grams of methamphetamine. Two months later, on 4 December 2015, Customs Officers in Hong Kong intercepted a further package containing 1.3 kilograms of methamphetamine. Both packages were addressed to Mr Uputaua at his address in New Zealand. By entering a guilty plea to those charges, he would acknowledge that he knew and was prepared to accept that his address should be used as the end address for the drugs to arrive in New Zealand.
[5] The remaining two charges arise out of an incident that occurred on 30
September 2016. On that date Mr Uputaua met with two other persons, one of whom was called Mr Le’Ca. The Crown alleges that Mr Le’Ca was a major player in the drug syndicate with which Mr Uputaua was involved.
[6] The three men met in Totara Park. The third person gave Mr Uputaua a black sports bag. He then put this in his vehicle and drove away followed by Mr Le’Ca. A short time later the police stopped Mr Uputaua’s vehicle. When they searched the sports bag they found 14.9 kilograms of methamphetamine having a purity of 80 per cent. They also found four packages containing 1,923.3 grams of cocaine. One of the packages of cocaine was tested and found to have a purity of 70 per cent. Both forms of drug were found within the sports bag that Mr Uputaua had placed behind the driver’s seat in the vehicle.
[7] The police subsequently searched Mr Uputaua’s residential address. There
they located a further 31.7 grams of cocaine. This was found to have a purity of
71 per cent. The police also found a set of electronic scales in Mr Uputaua’s
bedroom.
Starting point
Possession of methamphetamine for supply
[8] There is no dispute that the lead, or most serious, charge is that of being in possession of methamphetamine. It is important, however, that I ascertain Mr Uputaua’s role in the overall undertaking relating to this methamphetamine. What appears reasonably clear is that he was used as a form of “catcher” or “cut-out” by which Mr Le’Ca and others higher in the syndicate distanced themselves from the cocaine and methamphetamine that was contained in the sports bag. As a result, Mr Uputaua does not fall to be sentenced as one of the main players in the syndicate. Rather, as the Crown accepts, he played a support role in which he provided a degree of assurance to those higher in the chain that they would not be detected in possession of the drugs.
[9] Although Mr Uputaua played a lesser role than those above him, he nevertheless played a very important role. Drug syndicates cannot operate without persons who are prepared to take the risk themselves of handling drugs in return for financial gain. Having said that, I acknowledge immediately that there is no suggestion Mr Uputaua was to receive a portion of the profits from this very sizeable consignment of drugs.
[10] The starting point in relation to the methamphetamine charge is to be determined having regard to the guideline judgment of the Court of Appeal in R v Fatu.2 There can be no dispute that this offending falls within Band 4 identified in Fatu. This applies to the possession for supply of methamphetamine having a total weight of 500 grams or more. At 14.9 kilograms, this consignment of methamphetamine must be classed as placing the offending in the higher end of Band 4.
[11] The Crown says that it would be seeking a starting point in relation to Mr Le’Ca of 20 years imprisonment. It seeks a starting point in respect of Mr Uputaua of 16 years imprisonment to acknowledge the fact that he was lower down the chain. I accept that a significant starting point is required having regard to the quantity of methamphetamine found. I propose to adopt a starting point of 15 years imprisonment in relation to the charge of being in possession of methamphetamine for supply.
Attempting to import methamphetamine
[12] The next most serious charge in my view is that of attempting to import methamphetamine. These charges reflect an attempt to import approximately 1.650 kilograms of methamphetamine into New Zealand from Asia. That is a very significant quantity of methamphetamine. Given the fact that two separate attempted importations were made, the Court would have the ability to go beyond the maximum in each case of ten years imprisonment. Standing alone, I have no doubt that the attempted importation of 1.3 kilograms of methamphetamine would attract a starting point of somewhere around eight to nine years imprisonment. The starting point in respect of the other importation would obviously be less, but would nevertheless be in the region of four to five years imprisonment.
[13] All of that is immaterial because the Crown acknowledges that totality principles apply. This means that the Court cannot impose a sentence that would be out of all proportion to the overall gravity of the offending. The Crown suggests an
uplift of two years to reflect the additional culpability of these charges. I consider
2 R v Fatu [2006] 2 NZLR 72 (CA).
that to be appropriate, and I did not take Mr Young to disagree on Mr Uputaua’s behalf. I would therefore apply an uplift of two years to reflect the charges of attempting to import methamphetamine.
Possession of cocaine for supply
[14] This leaves the charge of possession of cocaine for supply. This was a very significant quantity of cocaine. I acknowledge immediately that the bulk of it was destined for Mr Le’Ca and others higher up in the chain. Nevertheless, Mr Uputaua has shown a willingness to involve himself in the consumption and/or supply of cocaine. This is demonstrated by the fact that 31.7 grams of cocaine were found at his then residential address.
[15] I consider that, on its own, this offending would have a starting point of around nine years imprisonment. Again, however, the Crown accepts that totality principles must apply. It suggests that an uplift of one year be applied to reflect this charge. I consider that to be appropriate, and again I did not take Mr Young to demur. Applying an uplift of one year, I am left with a total starting point of 18 years imprisonment before taking into account aggravating and mitigating factors.
Aggravating factors
[16] Mr Uputaua has a number of previous convictions, but none of these are relevant for present purposes. For that reason there will be no uplift to reflect previous convictions for similar offending.
Mitigating factors
[17] The only mitigating factor in respect of which I am prepared to provide an indication at this stage is that of guilty pleas. They did not come at the first opportunity because the charges were laid in October 2016, and Mr Uputaua’s trial is due to commence on 16 October 2017.
[18] I acknowledge that in January 2017 the Crown withdrew some charges. Mr Young advises me that discussions have been ongoing since that time regarding overall resolution. The short point, however, is that the summary of facts has
remained in its present form throughout, and it has been a matter for Mr Uputaua as to when he wished to enter guilty pleas.
[19] For that reason and in the face of an apparently strong Crown case, I am not prepared to provide a discount of 25 per cent as Mr Young suggests. That would be unfair to other offenders who enter guilty pleas at a very early stage of a proceeding and receive a discount at that level. I am, however, prepared to provide a discount of slightly over 20 per cent. I propose to reduce the starting point by three years nine months to reflect guilty pleas provided they are entered in the near future. This would leave an end sentence of 14 years three months imprisonment. That sentence would be imposed on the lead charge of being in possession of methamphetamine for supply. Concurrent sentences would be imposed in respect of the remaining two charges.
Should a minimum term of imprisonment be imposed?
[20] The only other issue I am required to determined is whether a minimum term of imprisonment should be imposed. The Court has the power to impose a minimum term of imprisonment in any case where it imposes a sentence of more than two years imprisonment, and it is not satisfied that the usual parole provisions would be appropriate or sufficient to reflect certain factors. These include the need to denounce offending, to hold the offender accountable and to deter both the offender and others from engaging in similar conduct. All of those factors are routinely engaged in any case involving serious class A drug offending.
[21] I consider that offending of this magnitude does require the imposition of a minimum term of imprisonment. Usually the minimum term that is imposed is one of 50 per cent. I am prepared to go slightly below that figure and indicate a minimum term of seven years imprisonment.
[22] In the event that Mr Uputaua accepts this indication, I will of course take into account any other mitigating factors that might come to light through the pre- sentence report. Mr Uputaua needs to be aware, however, that in this area of sentencing the courts have far less discretion than is the case in other areas. This is because in cases of serious drug offending, personal circumstances count for less
than they might in other areas of the criminal law. As I have said, I will be prepared to consider any additional mitigating factors that come to light in the pre-sentence report. Should I reduce the sentence further, then I may reduce the minimum term of imprisonment proportionately.
[23] Mr Uputaua will have until 5 pm on Friday 18 August 2017 to accept the indication. His counsel should file a memorandum prior to that point to advise the Court whether or not the indication is accepted. If it is, Mr Uputaua will be
arraigned at the criminal callover on 22 August 2017 at 9 am.
Lang J
Solicitors:
Crown Solicitor, Auckland
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