R v Zagros

[2022] NZHC 2874

SUPPRESSION ORDERS EXIST IN RELATION TO ASPECTS OF THIS JUDGMENT PURSUANT TO S 205 CRIMINAL PROCEDURE ACT 2011.

RELEVANT PARAGRAPHS IN THIS JUDGMENT HAVE BEEN REDACTED. SEE PARAGRAPH [84].

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-009-008704

[2022] NZHC 2874

THE KING

v

SAMI ZAGROS

Hearing:

2 November 2022

Counsel:

S J Mallett for the Crown

A M S Williams and K Bucher for the Defendant

Date:

3 November 2022

SENTENCING REMARKS OF NATION J

[1]    Mr Zagros, you and your family will understand that, before today, I received detailed submissions in writing, the s 27 report, pre-sentence report, submissions from the Crown. So, I have had the opportunity very carefully to consider all that material before now. But, obviously you have heard counsel for both the Crown and your counsel emphasise particular points that they want me to take into account and they are matters that I have considered carefully.

[2]    I do acknowledge that your family are here, and you are fortunate to have their support. But I must now proceed with the sentencing.

R v ZAGROS [2022] NZHC 2874 [3 November 2022]

Introduction

[3]    You appear for sentence on eight charges of importation of methamphetamine, three charges of attempted importation of methamphetamine, one charge of possession of MDMA for supply, one charge of common assault, a charge of failing to carry out obligations in relation to a computer search, and one charge of money laundering.

Facts

[4]    Your offending was described in an agreed summary of facts that was read out on 6 May 2022 at the time you pleaded guilty to certain charges. But, it is important that I include all these facts in my sentencing remarks and that I repeat them now. This is what you agreed to, as referred to in the summary of facts.

[5]    Between May and September 2018, you, Preston Radford and Cherie Akehurst were identified by New Zealand Customs investigators as being involved in the importation and distribution of methamphetamine, and the distribution of MDMA. The modus operandi of this syndicate involved the importation into New Zealand, mainly from Mexico and the United States of America, of legitimately declared packages containing methamphetamine, destined for various addresses around Christchurch. The consignee addresses were vacant or yet to be rented properties, or addresses occupied by syndicate members or neighbouring properties. The consignee names were fictitious or had slight variations to the names of the syndicate members. This allowed for packages to be uplifted by syndicate members or associates without drawing attention to themselves from law enforcement authorities.

Importation and attempted importation of methamphetamine

[6]    On eight separate occasions, you helped facilitate, through the use of the encrypted messaging application Wickr, the importation of packages of methamphetamine into New Zealand.

[7]    In addition, on three occasions, you attempted to import methamphetamine. One package was intercepted by Hong Kong Customs, another by Brazilian Customs and a third by United States Customs Border Control.

[8]    You accepted that you imported into New Zealand approximately 3.67 kg of methamphetamine and attempted to import into New Zealand approximately 4.33 kg of methamphetamine. In total, you imported or attempted to import 8 kg of methamphetamine into New Zealand.

[9]    Messaging located on your electronic devices, I note that is in the pleural, showed that you were directly involved in arranging for the importations to occur, and to be packaged in a way that they could be concealed from the authorities. So, there was an admission there of you being directly involved in arranging for the importations to occur and to be packaged in a particular way.

[10]   You employed and managed others beneath you in the distribution chain, namely your co-offender Mr Radford, so as to limit your own risk exposure. You would direct Mr Radford to uplift the packages and deliver cash and drugs between Christchurch and Auckland. You would pay Mr Radford in small amounts for his assistance, disproportionate to the quantity of drugs and level of risk involved.

[11]   The offending was moderately sophisticated. You possessed multiple cell phones and used encrypted applications such as Wickr to conceal your offending from authorities. You further employed the use of a jamming device at your home in an attempt to prevent your calls being “bugged” by authorities. Once methamphetamine entered New Zealand, you arranged for it to be transported across the country.

[12]   You had five imitation firearms: two in your office safe, one in your bedroom drawer, one at the headboard of your bed and one beneath your mattress. You had a stun gun in the driver’s door of your Mercedes.

[13]   You made a large profit from your activities. Police located $169,800 in cash in a safe at your address. Your lifestyle and other assets in your possession, including late model, high valued vehicles, were consistent with the commercial profit you were deriving.

Possession of MDMA for supply

[14]   Customs located 13,900 MDMA tablets at a storage unit linked to you. Those tablets matched 21 MDMA tablets located at your home address.

[15]   Wickr messaging showed you attempted to buy a further $80,000 worth of MDMA pills from persons unknown.

Common assault and money laundering

[16]   You laundered the money you received from your importations into Bitcoin. In August 2018, you gave your victim $100,000 to invest in Bitcoin. There was no expectation or agreement that the victim would have to pay back any losses from that investment.

[17]   The investment lost $35,000 within approximately 10 days, reflecting the volatility of the Bitcoin market. You began threatening the victim, telling him he was incompetent and that he would need to pay back the $35,000. You told him you had knee-capped someone over just $5,000. The victim felt scared for his life. As a direct result of these threats, he took out a $30,000 loan to pay you back.

Failing to carry out obligations relating to a computer search

[18]   At the time of your arrest on 4 September 2018, Customs seized two Samsung phones from you. You refused to provide the access code to these phones when requested to do so.

Analysis

[19]   Consistent with the approach advanced and as appropriate by your counsel, and taken in other cases, I will first assess an appropriate starting point for the importation charges.1

1      R v Uputaua [2017] NZHC 2320; R v Piahana [2017] NZHC 2763; R v Zhang [2021] NZHC 3583.

[20]   In the guideline judgment for methamphetamine offending, Zhang v R, this offending would fall within band five, which applies to importations of more than 2 kg.2 The quantity you imported was 3.67 kg. Under band five, the starting point is 10 years to life imprisonment.

[21]   As discussed by the Court of Appeal in Zhang, quantity itself is not determinative of the starting point. The role you played is an important consideration in fixing culpability and thus the starting point.3

[22]   The Court of Appeal categorised the various roles of methamphetamine offending as being lesser, significant and leading.4 Your counsel says your offending lies in the significant area. The Crown say it was a leading role. I consider your involvement in this offending was in the leading category or, at the least, at the more serious end of a significant role.

[23]   You were directly involved in the purchase and importation of methamphetamine and the selling of it on a commercial scale. I reject the submission that was made for you that, just because you were involved in the importation of methamphetamine, it cannot be said that you should be sentenced on the basis of a sale of methamphetamine. The whole purpose of methamphetamine was to enable other parties to sell it.

[24]   You had substantial links to and influence on others in the distribution chain in the way you arranged for others, particularly Mr Radford, to uplift packages and to deliver cash and drugs between Christchurch and Auckland. In directly arranging the importations, you must have had close links to the original source in Mexico and the United States. And, I consider that is an appropriate inference to draw from the agreed facts and not something that I must reject simply because you have filed an affidavit in which you assert other people were involved. You had an expectation of substantial financial gain, evident in your lifestyle, possession of valuable assets and in the

$169,800 cash the Police found in your possession.

2      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].

3      At [104] and [118].

4 At [126].

[25]The Crown referred to the starting point sentences adopted in Smith v R,

Thompson v R and R v McMillan.5

[26]   The Crown suggested your offending was broadly comparable to Thompson and McMillan both in terms of quantity and role. Those cases attracted starting points of 17 and 18 years’ imprisonment respectively. The Crown accepted that the present offending did not appear as sophisticated as that which occurred in McMillan.

[27]   The Crown submitted an appropriate starting point for the methamphetamine offending would be up to 15 years, that was for both the importations and attempted importations assessed in the round.

[28]   For you, Mr Williams submitted that your role should be assessed as significant rather than leading in Zhang terms, and Mr Radford’s role in methamphetamine offending should be seen as being no less serious than your offending. He submitted, given the quantity involved, the starting point should be significantly shorter than the 15 years’ starting point adopted in cases he referred to, and which I will cite.6

[29]   He referred to the fact Mr Radford accepted his involvement in importations was for a significantly greater amount than you admitted to. He submitted the starting point for your offending should be no more than the 10 years adopted for Mr Radford and should in fact be less, in the end, being a starting point of nine years’ imprisonment.

[30]   Mr Williams submitted a more analogous case was that of Philip, referred to in R v McMillan.7 The Court of Appeal there noted it would be difficult to justify setting a starting point less than nine years’ imprisonment but, in the context of Mr Philip’s guilty pleas and in the context of a Crown appeal, the Court set the starting point at eight  years’ imprisonment.   Significantly, the Court of Appeal assessed  his

5      Smith v R [2020] NZCA 221; Thompson v R [2019] NZCA 507; R v McMillan [2021] NZHC 2118;

McMillan v R [2022] NZCA 128.

6      Zhang v R, above n 2; Pai v R [2020] NZCA 146; Wan v R [2020] NZCA 328; Berkland v R [2020] NZCA 150.

7      McMillan v R, above n 5.

participation as on the cusp between lesser and significant categories of offending and noted his offending was driven by his addiction to methamphetamine.

[31]   In Pratap v R, the Court of Appeal adopted a starting point of 13 years’ imprisonment for importing 2.369 kg of methamphetamine.8 Mr Pratap was found guilty of seven charges of importing that total. Mr Pratap would communicate with two cell phones and then a package would be sent from Africa, Asia or Mexico. The tracking details would be sent to his wife (who was also a co-defendant). The packages were addressed to his business and residential address. He also worked to identify other potential addresses where methamphetamine could be sent. He was to take possession of the packages once they arrived in New Zealand. The Court of Appeal said Mr Pratap’s role in arranging the importations and directing the activities of his wife meant he satisfied most of the “leading” role criteria.

[32]   In Moheebi v R, the Court of Appeal adopted a starting point of 11 years’ imprisonment for importing almost exactly 500 grams of methamphetamine.9 Relevant to the sentencing there, the Court of Appeal accepted Mr Moheebi’s role fell in the “leading” role.

[33]   I accept, as the Crown suggested, and indeed as Mr Williams for you suggested I must, the Court needs to be cognisant of the sentence imposed on Mr Radford. As the Crown pointed out, Mr Radford pleaded guilty following a sentence indication early in the proceedings. He did so without negotiation of the level of the charge or the facts. As a result, Mr Radford entered guilty pleas to a greater number of charges than you and to a greater quantity of methamphetamine. In particular, he pleaded guilty to seven charges of importing methamphetamine and six charges of attempted importation, in addition to various other drug offending charges. His sentencing proceeded on the basis the offending involved a total of approximately 17 kg of methamphetamine.

8      Pratap v R [2020] NZCA 308.

9      Moheebi v R [2020] NZCA 343.

[34]   Mr Radford was sentenced on the basis his role in the offending was in the “lesser category” as discussed in Zhang. Gendall J described it as set out in paras [15]-[17] of his decision (which I will include in my written sentencing remarks).10

[15]      The Crown accepts here that you, Mr Radford, were not the mastermind behind this offending. They allege that you were a “catcher” and were involved in arranging addresses that importations could be shipped to and, on most occasions, you would uplift the packages upon arrival. The importations were often addressed to variants of your name. Once in possession of the methamphetamine you were then involved in transporting it around the country. In that capacity you could be described as a courier of the illicit drugs. You acted under the instructions of your co-offender Mr Zagros.

[16]      As I have said, you were paid small quantities of cash for your involvement in the offending and there was no evidence of excessive profit on your part here.

[17]      The Crown accepts, Mr Radford, you fall into the “lesser” category in Zhang in that first you performed a limited function under direction, secondly, you had little expected financial gain, thirdly you were paid in cash significantly disproportionate to the quantity of drugs and risks involved and, fourthly, you had no influence on those above you in the chain.

[35]   I will also refer to paras 9 and 10 which the Crown has emphasised in their submissions as being the basis on which, as they say, is relevant in terms of your offending.11

[36]   A starting point of 10 years imprisonment was adopted for his methamphetamine offending.

[37]   I accept the submission for the Crown that a markedly higher starting point is required against you than was adopted against Mr Radford to properly reflect your respective roles within the criminal syndicate. Although the gross quantity of methamphetamine to which Mr Radford pleaded guilty is higher, that does not accurately reflect your criminality. As was pointed out by the Court of Appeal in Zhang, due regard to role is necessary to assess the seriousness of the conduct and the criminality involved, and thereby the culpability inherent in the offending.12 I refer to the details of your offending as set out in the agreed summary of facts. You stood to

10     R v Radford [2020] NZHC 218.

11     The Crown was referring to paragraphs 9. and 10. of the agreed summary of facts for Mr Zagros, as are set out in paragraphs [9] and [10] of these remarks.

12     Zhang v R, above n 2, at [118].

profit from the methamphetamine importations in ways that Mr Radford could not and did not.

[38]   You need to be held accountable for the harm that was going to be caused to the ultimate users of that methamphetamine, their families and their communities. To derive a profit from what you were doing, you had to have others assist you and others down the chain in the distribution of the methamphetamine. As happened with both Mr Radford and Ms Akehurst, your involvement in the importation and distribution of methamphetamine led to their involvement in serious criminal offending.

[39]Your counsel said you assert:

(a)  You were not involved directly in purchasing commercial quantities of methamphetamine. Your role was much more limited than this.

(b)  There were people above you in the distribution chain, including those who ordered the methamphetamine, those who requested that you find addresses where the drug could be sent and those who received the cash sent to Auckland.

(c)  Mr Radford and others engaged in the commercial distribution of drugs that did not involve you. While Mr Radford did assist you, he was running his own operations. The scale of his offending was broader and more substantial.

(d)  While you made a profit from your offending, it was more modest than that alleged by the Crown.

(e)  The items currently restrained by Police were not the proceeds of your offending.

[40]   Your counsel made the submission that, because these were your assertions, there needed to be a disputed facts hearing. I declined to direct that before your sentencing, and I do so again.

[41]   As the Court of Appeal said in Archer v R, the sentencing court may accept as proved any fact that was agreed to by the parties.13 The Court of Appeal also said “[p]roof of disputed facts requires a sentencing hearing, which is triggered through a process beginning when one party asserts a fact and the other disputes it”.14 The Court of Appeal also said that the sentencing court must accept as proved all facts essential to a guilty plea.

[42]   As the Court of Appeal said in Archer, the regime as to the need for a disputed facts hearing is centrally important to a fair sentencing process but, at the same time, it is designed to work in a practical and economical way in busy first instance courts.15

[43]   In your case, with the benefit of counsel, the proceedings against you were resolved with the [Crown] including in an agreed summary of facts the amounts of methamphetamine the subject of the importations and attempted importations less than had initially been asserted and the effective withdrawal of one charge of importing methamphetamine and one charge of attempted importation.

[44]   It was thus an agreed fact that you were directly involved in the ordering of imported drugs. On the facts referred to in the summary of facts, you made a substantial commercial profit from the transactions. You directed Mr Radford how he had to assist you in the distribution of the drugs. The summary did not assert you were involved in the distribution and sale of methamphetamine in the same way Mr Radford was.

[45]   In the agreed summary of facts, you accepted you had acquired a significant sum in cash, late model, high value vehicles and other assets. That is the basis on which you are being sentenced. I have thus not taken into account that, in two bank accounts of a company you controlled, there was around $123,500. You will be able to dispute the extent to which the Police say you acquired assets and derived benefits from your offending through contesting the application which the Commissioner of

13     Archer v R [2017] NZCA 52 at [10].

14 At [12].

15 At [14].

Police will be making for profit and asset forfeiture orders under the Criminal Proceeds (Recovery) Act 2009.

[46]   It would seem from counsel’s submissions that you wished to call evidence to establish that the scale of Mr Radford’s offending was broader and more substantial than he was sentenced for. It is a principle of sentencing that it is generally desirable there be consistency of sentencing levels between similar offenders and co-offenders committing similar offences in similar circumstances. In considering how that should affect the starting point for your sentence, it is appropriate for me to consider the factual basis on which Mr Radford was sentenced and on which he pleaded guilty, not your assertion as to how you say his culpability should have been assessed. On the facts as to his offending for which he was sentenced and the facts which you accepted, your roles in the offending were significantly different.

[47]   Following my refusal to direct there be a disputed facts hearing and shortly before sentencing, you filed an affidavit to support your contention that there should be a disputed facts hearing.

[48]   The affidavit includes many statements by way of submission or argument, and assertions as to how you believe Mr Radford had offended. In your affidavit, there was an assertion that you were responsible for ensuring cash was delivered to Auckland, but the cash was not yours. There was however no denial that you had received the cash which, in the summary of facts, you admitted obtaining from your offending. In your affidavit, you also acknowledged attempting to broker the sale of 2,000 MDMA tablets found in the storage unit linked to you.16 Despite admitting in the summary of facts to having $169,800 in cash and making a large profit from your activities, you assert in your affidavit you “did not make a significant amount of money from [your] offending”. You say in your affidavit that “the money I did make I would

16 I said that with reference to a statement in a draft affidavit which Mr Zagros, through counsel, provided to the Court on 31 October 2022, on the basis an affirmed copy would be provided at sentencing. In that affidavit, Mr Zagros said “On one occasion I attempted to broker the sale of 2000 of these tablets. Mr Radford would have supplied them directly to the purchaser and I would have made a small commission on the deal. I had no interest in the remainder of the tablets as this was Mr Radford’s own business.” Shortly before the sentencing, a signed affidavit was provided. It included some non-highlighted changes. After the sentencing, I noticed that one of the changes was to that earlier statement. As to that, Mr Zagros said “On one occasion I attempted to purchase 2000 of these tablets. I had no interest in the remainder of the tablets.”

often invest in crypto currency”. As to the money laundering charge, the summary of facts referred to you investing $100,000 in Bitcoin.

[49]   Despite what you admitted through the summary of facts, you assert in your affidavit “other than the cash located at my address, I do not accept that any of the items located, or the assets subsequently restrained by the Police were the proceeds of my offending”.

[50]   In light of your admitted offending and the agreed summary of facts, I have not accepted that either your counsel’s submissions or your affidavit provide an evidential basis for me to require a disputed facts hearing.

[51]   Having considered the cases referred to by both the Crown and your counsel, and the further cases mentioned, the starting point sentence I adopt for the actual methamphetamine importations is 13 years’ imprisonment.

[52]   There must then be an uplift for the remaining charges. As already mentioned, the Crown suggested a starting point sentence of 15 years for both the importations and attempted importations. Mr Williams for you suggested there should be an uplift of two years imprisonment for all other offending.

[53]   I consider it appropriate to deal first with an uplift for the attempted methamphetamine importations. That offending was for three separate attempted importations, having been initiated in the same way as the actual importations. The total amount involved in the attempted importations was significant in terms of the Zhang categorisation, 4.33 kg.

[54]   In his submissions for you, Mr Williams highlighted the need to recognise that charges of attempted importation are to be treated as less serious than actual importations. On an attempted importation, as he pointed out, the maximum penalty is 10 years’ imprisonment, compared to life for a complete offence.

[55]   In totality, I consider an appropriate uplift for three attempted importation offences would be two years’ imprisonment. That compares to the starting point of

between 18 months’ and two years’ imprisonment Mander J adopted for Ms Akehurst on her one charge of attempted importation.

[56]   The starting point I adopt for all the methamphetamine offending is thus 15 years’ imprisonment.

[57]   There then needs to be an uplift for the offence of possession of MDMA for supply. You pleaded guilty to possession of MDMA for supply with the summary of facts referring to 13,900 MDMA tablets being found in a storage unit linked to you. The Crown suggested an uplift of two years, having regard to the Court of Appeal decision in Martel v R.17 I have regard to the two year uplift for Mr Radford’s other offending which was adopted on his sentencing. For you, I adopt a one year uplift for your MDMA offending.

[58]   The Crown suggested the offences of common assault and failing to comply with a computer search could be dealt with by way of nominal sentences. It did not suggest any uplift on the starting point for the money laundering offence.

[59]   In investing $100,000 in Bitcoin via your victim, you did commit a money laundering offence. That money came from the proceeds of your drug dealing offences. You were attempting to conceal your acquisition of cash obtained from criminal activity. The threatened assault of your victim that pressured him into obtaining a loan and paying you $35,000 caused him considerable harm and was a demonstration of how you were prepared to threaten and pressure someone to do what you wanted when it came to financial gain. There is to be a further uplift for both offences of one year’s imprisonment.

[60]   Your refusal to provide the access code to two Samsung phones Customs had seized from you was an obvious attempt by you to deprive Customs of evidence which could assist them to establish your role in the offending which you have now acknowledged. As to that, your sentence will be for one month’s imprisonment concurrent.

17     Martel v R [2018] NZCA 305.

[61]That leads to a starting point for all your offending of 17 years’ imprisonment.

[62]   I do not consider that needs to be adjusted on a totality basis, particularly so having regard to the differences in the offending for which you are to be sentenced.

[63]So, the starting point I adopt for all the offending is thus 17 years.

Personal circumstances

[64]I now turn to aggravating or mitigating features relating to you personally.

[65]   You were sentenced on 17 November 2015 for a raft of serious drug offences involving the possession for supply of methamphetamine and other drugs. Your offending involved 450 grams of pure pseudoephedrine which could have been used to manufacture between 225 and 330 grams of methamphetamine. In addition, you supplied three ounces of methamphetamine with an estimated value of between

$50,000 and $85,000. You were sentenced to four years and six months’ imprisonment. You were released on parole on 11 December 2017. Within a short time and while still on parole you were involved in this offending.

[66]   The pre-sentence report informed me that, while in custody, you completed a drug treatment programme. The Parole Board noted you had “really applied yourself” to that programme prior to your release on parole in January 2018. In marked contrast to how it seems you were able to present yourself during a drug treatment programme, the psychologist, Mr Craig Prince, advised that you admitted to having used drugs while in prison and, also in that context, to selling drugs “to feed [your] own habit but of never joining any gang”. You also told Mr Prince that, although you attended the drug treatment programme, you did not respect the facilitator and did not make any changes.

[67]   Your current offending began soon after your release, a demonstration that your earlier prison sentence had not been a deterrent as far as further offending was concerned.

[68]   It was a condition of your parole that you not use or be in possession of illicit drugs. You must have presented yourself to the Parole Board and in the drug treatment programme as being genuinely committed to avoid further offending. The pre- sentence report noted that, while you appeared to comply with the conditions of parole, your engagement was, in hindsight, superficial. I consider this demonstrative of your ability to be both manipulative and dishonest in your dealings with others. There was also arrogance and a sense of self-entitlement in thinking you would be able to get away with serious criminal offending and keep the substantial profits you could make from it. It is that arrogance, and your ambition to make money and see the profit you might make as the measure of your success and standing that the pre-sentence report says puts you at risk of further serious offending and thus causing the sort of social harm which inevitably results from these sorts of drug importations and possession for supply offences for which you have now been convicted.

[69]   The Crown submitted the uplift to recognise that this offending occurred while you were on parole and subject to a sentence of imprisonment should be two years. Your counsel suggested the uplift should be one year.

[70]   The uplift I would have adopted would have been 18 months’ imprisonment. As a result of this latest offending, you were however recalled to serve your earlier prison sentence when you still had 15 months of that sentence to serve. Taking that into account, the uplift for this offending having occurred while on parole is to be nine months or, rounded up, five per cent of the starting point sentence I arrived at.

[71]I next consider the discount you might receive for guilty pleas.

[72]   Mr Williams submitted you were entitled to 20 per cent credit. The Crown submitted it should be no more than 15 per cent. Mr Williams suggested that, in many respects, although it has taken some time to conclude these proceedings, that has not been your fault. He suggested the case against you had evolved and you had been willing to resolve matters on a basis which accurately reflected your culpability.

[73]   I do not accept this is an appropriate way of categorising your approach to these proceedings and I do not accept his submission that, with the guilty pleas at the end,

the basis on which you accepted responsibility was a significantly different landscape from what you were charged with earlier on. Prior to the first trial, you denied any involvement in the offending and all charges were set down for trial. Pleas of guilty were entered to some charges during the first trial but only after New Zealand Customs obtained evidence of your direct involvement in importations and other offending which you then admitted to. Your denial of further offending necessitated the proceedings being set down for a second trial. There was an issue over the amount of methamphetamine involved in those further charges, but you did not admit that offending and seek a disputed facts hearing as to just the amount involved. You submitted the second trial had to be adjourned but this was due to your then counsel being given leave to withdraw. Your current counsel submitted this was through no fault of yours.

[74]   Given the commitment your previous counsel had shown to your case, I am not willing to accept that counsels’ withdrawal was through no fault on your part, but I do not treat the withdrawal of counsel and the need to adjourn the trial as being an aggravating factor as far as you are concerned. The reality remains however that you ultimately pleaded guilty well after the start of the Judge alone second trial.

[75]   Defendants can receive a discount of up to 25 per cent for guilty pleas. This is to recognise the way guilty pleas avoid the need for witnesses, particularly victims and their families, to face the ordeal of a trial, the savings to the State with regard to the allocation of Police, prosecutorial and court resources to a trial and the way, through a guilty plea, a defendant accepts responsibility for their criminal offending and demonstrates remorse for that offending.18

[76]   The potential for these proceedings to have been brought to an end, probably without the need for a trial and much earlier than occurred, is evident in the many bench notes and minutes recording what was happening in the proceedings.

[77]   I consider the way you have conducted yourself in relation to these proceedings has done little to reduce the time or Court resources that had to be applied to bring

18     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [45]; and Lynn v R [2020] NZCA 616 at [38].

these proceedings to an end. On two occasions, the charges against you had to be set down for trial with the prosecution having to prepare and proceed accordingly. I consider, had you been willing to accept responsibility for your offending, in light of the evidence against you and with the knowledge of how you had been involved in the offending, the proceedings could have been resolved much earlier than happened.

[78]   With the proceedings being rescheduled on two occasions, one of the key Crown witnesses, Mr Radford, for an extended period had to face the prospect of having to give evidence against you at your trial.

[79]   Your sentencing was delayed for three months at your request for you to obtain a psychologist’s report. You did not at that time seek a disputed facts hearing.

[80]   Even after you pleaded guilty, just some two weeks before your sentencing, your counsel sought to have a disputed facts hearing. If I had acceded to that request, it is likely the Crown would have had to call Mr Radford and a number of other witnesses to give evidence at a disputed facts hearing in a way that your guilty pleas, based on an agreed summary of facts, should have avoided. You have, just prior to sentencing, filed an affidavit making assertions contrary to statements in the agreed summary of facts. I do not accept the submission that was made for you that what you wished to assert in a dispute facts hearing is not inconsistent with the summary of facts. In seeking a disputed facts hearing, you were seeking to have the Court and witnesses involved in what would have been a significant hearing.

[81]The discount I give you for your guilty pleas is 10 per cent, or 21 months.

[82]   The Court has the benefit of a detailed and insightful pre-sentence report. The report said:

When considering Mr Zagros’ risk of offending, his rapid return to offending on release from prison, whilst subject to Parole, along with its similarity to his earlier convictions, are of concern. These factors, assessed in conjunction with his ongoing association with criminal peers and his acknowledged propensity to seek validation through increasing his finances, which he views as equating to success, point to Mr Zagros being at a high risk of reoffending in a similar manner. Violence does not feature significantly in Mr Zagros’ criminal history. However, it is assessed that Mr Zagros’ offending poses a high risk of social harm including physical, psychological and emotional

damage to users and the negative impacts on their families and the community caused by the importation and distribution of illicit substances, in particular methamphetamine.

[83]   The report tells me you consider you were raised to see financial success as paramount. Other people can be brought up in such an environment but it is not a background which has to be recognised through a discount for serious criminal offending which you knew to be criminal and which you had the intelligence to recognise could cause considerable social harm. You are before the Court for this offending not because you were driven to be wealthy and to be able to display the trappings of wealth as you did but because you considered you were entitled to involve yourself in serious drug importations to have that wealth. Given your ongoing association with criminal peers, your determination, as exemplified throughout those proceedings, to believe you can avoid being held responsible for what you do and the consequences resulting from that, you are at serious risk of further serious offending. In recognition, there must be an emphasis on deterrence and protection of the public.

[84]   Your counsel has asked that you be given a further discount based on a s 27 report obtained from Dr Jarrod Gilbert and a report from the psychologist, Mr Craig Prince. I am not willing to do this, but I do make an order for suppression of the information that I am referring to in those reports.

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[87]             The s 27 report from Dr Gilbert is largely based on your self-report with some corroboration sought from your mother. And I acknowledge she is obviously committed to doing what she can to help you.

[88]             There is information you gave to Dr Gilbert which he assumed is correct but the truth of which would seem questionable.

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[95]     [...]

[96]     [...]

[97] I have a letter from a counsellor dated 2 June 2022. He spoke positively of the progress you had made in nine sessions of counselling and the aspirations you have for the future. And I do commend you for the fact that you have carried on with your university studies and that you still want to be a success on ending your prison sentence. The letter began by saying “Sami has worked really hard in every aspect of his life, he has great enthusiasm and a willingness to do whatever is required to get his life back on track”. There was however nothing in the counsellor’s letter to indicate you had a real and genuinely held understanding of how your offending harmed the community or that you had real remorse for your offending. The letter does suggest that, in counselling, you were able to engage with the counsellor in the same way it was reported you did in the drug rehabilitation programme during your previous sentence of imprisonment in the way that impressed the Parole Board which, soon after your release, was shown to be meaningless through your involvement in this further offending.

[98]     [...]

[99]   I have also carefully read the letters from your mother, brother and friend. They certainly want to support you and believe in what is best in you.

[100]   There was however no evidence in either the counsellor’s letter or Mr Prince’s report to indicate that you recognised your offending was driven by your rigidly held ambition to make lots of money and to do so through drug dealing. In all the

information before me, I do not see evidence of your having a real sense of shame for your offending. The pre-sentence report noted the theme of your narrative focused on the hardship on yourself by your release to a reduced position and your concerns about how you will support your mother.

[101]   It is apparent from your affidavit and the submissions advanced for you that you assert your role in the offending was no more serious than that of Mr Radford. On the facts, as accepted by you with the summary, that is inconsistent with your taking responsibility for your offending and being genuinely remorseful for it.

[102]   This is not a case where you are entitled to a further credit for remorse in addition to the credit for your guilty pleas.

[103]   So, the only discount for mitigating matters relating to you personally is the discount of 10 per cent I have allowed in recognition of your guilty pleas to some charges at the time of your first trial and your eventual pleas of guilty to further charges after the Judge alone second trial had to be adjourned part-heard.

[104]   This means that your ultimate sentence for all this offending will be 17 years’ imprisonment, less a net credit of one year in respect of the uplift for offending on parole and credit for your guilty pleas. That is 16 years’ imprisonment.

[105]   I have carefully considered whether a minimum period of imprisonment should be imposed, because this is a case of recidivist commercial dealing. The pre-sentence report has said you are at high risk of further serious offending and thus the harm that could be caused by all of this. I consider you are fortunate that the Crown has not sought the imposition of a minimum term of imprisonment.

[106]Mr Zagros, please stand.

[107]   On the eight charges of importation of a class A controlled drug (methamphetamine), you are sentenced to imprisonment for 13 years.

[108]   On the three charges of attempted importation of a class A controlled drug (methamphetamine), you are sentenced to imprisonment for two years, concurrent

with each other but cumulative on the sentence for importation of a class A controlled drug.

[109]   On the charge of possession of a class B controlled drug (MDMA) for supply, you are sentenced to imprisonment for one year, cumulative on the sentences for importation and attempted importation of methamphetamine.

[110]   On the charge of money laundering, you are sentenced to imprisonment for one year, concurrent with the other charges.

[111]   On the charge of failing to carry out obligations relating to a computer search, you are sentenced to imprisonment for one month, concurrent with all other sentences.

[112]   On the charge of common assault, you are sentenced to imprisonment for six months, concurrent with sentences on the other charges.

[113]   As a result of your threatened assault of him, the victim of that common assault used $5,000 cash of his own savings, obtained a loan of $30,000 and paid $35,000 to you. That was a loss, which I was told with the probation report, was a loss that he suffered caused by your offending. You have the means to pay that reparation through cash and bank accounts restrained by Police under the Criminal Proceeds (Recovery) Act. Today, through your counsel, you have asserted that the bank actually refunded the victim the $30,000 but I have no evidence of that and certainly that was not the information that was put before me either by way of the victim statement or by probation. You do have the means to pay reparation through cash and bank accounts restrained by Police under the Criminal Proceeds (Recovery) Act.

[114]   I make an order that you are to pay to the victim of that offending reparation in the sum of $35,000. But, I reserve leave for the Crown and your counsel to apply for a reconsideration of that order if there is evidence that the bank repaid that sum. Such an application must be made within two weeks.

[115]   The Crown have sought an order for forfeiture to the Crown of all electronic devices belonging to you and seized by authorities as part of the investigation. Your

counsel has asserted that there was only one cell that actually had something on it that was going to be used as evidence against you. The summary of facts referred however to a number of items. There was also [no]19 evidence that multiple devices were used and had to be investigated because of the way this offending came about. Accordingly, pursuant to s 32 of the Misuse of Drugs Act, I do make an order for forfeiture to the Crown of all electronic devices belonging to you and seized by authorities as part of the investigation.

[116]   There was a charge of conspiracy to import methamphetamine.20 No plea was ever entered on that charge. It was not a charge that was before the Court at the time of your scheduled trials. The Crown has never offered evidence in support of that charge. I formally dismiss it.

[117]   I direct that a copy of Mr Prince’s report is to be sent to the Department of Corrections.

[118]That concludes my remarks. Mr Zagros, stand down.

Solicitors:

Raymond Donnelly & Co., Christchurch AMS Williams, Barrister, Christchurch.

19     The word “no” was a slip.

20     CRN18009502242.