R v Vadati CA256/05

[2005] NZCA 420

IN THE COURT OF APPEAL OF NEW ZEALAND

CA256/05

THE QUEEN

v

SAEID VADATI

Court:  Hammond, William Young and Chambers JJ Counsel:          I S Sapolu for Appellant

S B Edwards for Crown

Judgment (On the papers):     19 December 2005

JUDGMENT OF THE COURT

A        The appeal is allowed.

BThe sentence of seven years six months imprisonment is quashed and in substitution therefor a sentence of five years six months imprisonment is imposed.

CThe order fixing a minimum period of imprisonment of four years is quashed and in substitution therefor an order fixing a minimum period

of imprisonment of three years is made.

R V SAEID VADATI CA CA256/05  19 December 2005

REASONS

(Given by William Young J)

[1]      This appeal against sentence has been heard on the papers under s 392B of the Crimes Act 1961.   The relevant materials, including written submissions from the appellant and the Crown, which have been received in accordance with r 29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

[2]      On 28 June 2005, Ellen France J sentenced the appellant to seven years and six months imprisonment (with a minimum period of imprisonment of four years) on a charge of importing the Class A controlled drug, methamphetamine to which he had pleaded guilty.

[3]      On the Crown case, the appellant was one of three people who were directly involved in importing from Malaysia into  New  Zealand  a  black  suitcase  which contained  117.4  grams  of  methamphetamine,  worth  (at  street  value)  between

$93,000 and $117,000.  One of the other two people was acquitted at trial and the other (in respect of whom the jury had disagreed at trial) was later discharged under s 347 of the Crimes Act 1961

[4]      The appellant is 34 years of age.  He is an Iranian with rights of residency in

New Zealand.  He has no previous convictions.

[5]      There  is  no  evidence  which  is  inconsistent  with  the  appellant  being  the principal offender.  On the other hand, the Crown was not in a position to dispute his contentions that his actual role had merely been to supervise the importation of the drug into New Zealand (for which he was to be paid US$6,000) and that he was acting generally on the instructions of another person.  The Judge sentenced him on the basis that his role was more than that of a mere courier but that he was not the mastermind.

[6]      Unfortunately, the material presented by the Crown to Ellen France J was, in

one respect, wrong.   The summary of facts alleged that the weight of the methamphetamine was 188 grams rather than the 117.4 grams it actually was and, consequentially, attributed to it an inappropriately high street value.

[7]      In her sentencing remarks the Judge applied the approach taken in R v Arthur [2005] 3 NZLR 739 (CA). She thus treated the case as involving a commercial quantity of the drug, which, in terms of Arthur (which addressed supply and not importation) attracted a starting point sentence in the range three to nine years.  She then applied an uplift to recognise that the offending involved importation and not just supply.  From the resulting starting point of 11 years, she allowed a three years and  six  months  discount  for  the  plea  of  guilty  producing  an  end  sentence  of seven and  a  half  years  imprisonment.    Taking  the  view  that  nothing  less  than four years  actual  imprisonment  would  “deliver  the  right  message”,  the  Judge imposed a minimum term of imprisonment of four years.

[8]      We see the Judge’s starting point as being too high.  In reaching this view, we are  influenced  by  the  guideline  decision  of  this  Court  in  R  v  Fatu  CA415/04

18 November  2005  which  was,  of  course,  delivered  after  the  appellant  was sentenced.  Since the application of Fatu is of assistance to the appellant we see no difficulty in applying that case “retrospectively”.   Under the Fatu bands, the appellant’s  offending  would  have  attracted  a  starting  point  sentence  of  up  to ten years  imprisonment.    We  must  also  allow  for  the  error  made  in  the  police summary as to the weight and value of the drugs involved.  As well, the appellant’s role in the offending was not (at least on the assumptions of fact which the Judge had to make) that of the mastermind or ringleader.  So the starting point cannot sensibly be at the very top end of the relevant Fatu band.

[9]      We think that a starting point sentence of eight years is appropriate.   We allow a discount  of  two  years  and  six  months  for  the  guilty plea,  producing a sentence of five years and six months.

[10]     The Judge’s reasons for imposing a minimum term of imprisonment were expressed succinctly but seem to us to be sound (particularly given the appellant’s supervisory  role  in  the  offending).    We  think  it  right,  however,  to  reduce  the

non-parole period to three years to reflect the downwards adjustment in the head sentence.

Solicitors:
Sapolu Law, Auckland for Appellant
Crown Law Office, Wellington