The Queen v Ali

[2006] NZCA 135

IN THE COURT OF APPEAL OF NEW ZEALAND

CA371/05

THE QUEEN

v

ABDALLA ALI

Hearing:14 June 2006

Court:Robertson, Gendall and Venning JJ

Counsel:A Speed for Appellant

M D Downs for Crown

Judgment:20 June 2006 

JUDGMENT OF THE COURT

A        THE APPEAL IS ALLOWED.

BThe sentence of 14 years’ imprisonment with a minimum non-parole period of seven and a half years is quashed and replaced with a sentence of 12 years’ imprisonment and a minimum non-parole period of six and a half years.

____________________________________________________________________

REASONS

(Given by Venning J)

Introduction

[1]       On 6 September 2005 Mr Ali was sentenced to 14 years’ imprisonment with a minimum non-parole period of seven and a half years on a charge of importing cocaine into New Zealand.  Mr Ali was also sentenced to imprisonment for 11 years concurrent on a count of possession of cocaine for the purposes of supply. He appeals against sentence only.

Background

[2]       On 2 February 2004 Mr Ali, an Australian national, arrived in Auckland together with an associate, a Mr Madrid.  On 10 February 2004 Mr Madrid rented a home at 5 Kilimanjaro Drive, Botany Downs.  The property was rented for approximately six months.  The total rent and bond amounting to $17,600 was paid in advance.  Further expenditure of some $9,000 was incurred in furnishing the property.  Another $8,000 was spent in purchasing a van.  Mr Ali and Mr Madrid recruited a local man, Peleti Crichton to drive the van.

[3]       On 12 February Mr Cai, another Australian national, arrived in Auckland from Sydney.  He stayed at 5 Kilimanjaro Drive for four days until 16 February.  During this time he was driven about Auckland by Mr Crichton in company with Mr Madrid and Mr Ali.  Mr Crichton gave evidence that he overheard the parties discussing “white” or “coke”.  Mr Cai left New Zealand for a time but returned on 2 April.  In the intervening period Mr Ali remained in New Zealand at the Botany Downs address.  Mr Ali together with others opened 100 Post Office boxes in the Auckland area between 18 February and 1 March. 

[4]       Between 12 and 15 March a total of 259 envelopes were despatched from Canada to the Post Office boxes opened by Mr Ali and his associates.  Each of the envelopes contained approximately 10 grams of cocaine. 

[5]       The authorities observed Mr Ali uplifting Mr Cai from Auckland airport on 2 April 2004.  Mr Ali took Mr Cai to the property at 5 Kilimanjaro Drive.  The following day Mr Ali and Mr Cai were observed driving about in the van visiting a number of the Post Office box outlets.  Mr Cai was driving.  Mr Ali was seen to go to the Post Office boxes and remove the envelopes.

[6]       It seems that at some point during the round Mr Ali and Mr Cai discovered they were being followed.  They took evasive action.  They drove through red lights and at one point drove into Hall Avenue, a dead-end street in Mangere.  For a short period of time they weren’t observed because they had driven into a property and the vehicle was hidden by a fence.  During this period Mr Cai telephoned Australia and received calls from there.  Some time later the van was located and stopped in Albert Street.  Mr Ali, Mr Cai and the vehicle were searched but nothing was found.  On the same day the property at 5 Kilimanjaro Drive was searched.  Four envelopes were found containing Post Office box applications and keys. 

[7]       On 17 April the police conducted a further search of the property at 5 Kilimanjaro Drive.  They found a number of documents in the rubbish outside the property, some of which were later identified as having come from envelopes containing cocaine. 

[8]       On 19 April the occupier of a property in Hall Avenue, Mangere, found a black satchel hidden outside her front fence.  After examining the contents she handed it to the police.  The satchel contained 39 envelopes, each containing cocaine, all sent from Canada and a further 29 containing Post Office application forms and keys. 

[9]       By 26 April police had recovered a further 179 envelopes from various Post Office boxes all of which contained about 10 grams of cocaine. 

[10]     On 3 January 2005 the new occupants at 5 Kilimanjaro Drive came upon some packets which had been stuck with adhesive tape to the inside of a sliding door recess in the property.  The packets contained a further 45 envelopes all sent from Canada, all containing cocaine.  There were in addition further packets containing Post Office box application forms and keys.

[11]     In total the police recovered in excess of 2.5 kilograms of cocaine.  The trial Judge accepted there was evidence that the cocaine had a potential street value in excess of 3.5 million dollars. 

[12]     The police arrested Mr Ali, Mr Cai and Mr Crichton.  Mr Madrid has not been located. 

[13]     Prior to trial Mr Crichton pleaded guilty to importing a class A controlled drug, cocaine.  On 7 June 2005 Keane J sentenced him to two years’ imprisonment. Mr Crichton subsequently gave evidence in the trial of Mr Cai and Mr Ali.  On the second day of the trial, and faced with evidence of his fingerprints being found on relevant documentation, Mr Ali pleaded guilty.  Mr Cai defended the charges but was subsequently convicted by the jury.  Mr Ali and Mr Cai were both sentenced by Laurenson J on 6 September 2005.

The sentence

[14]     After referring to the purposes and principles of the Sentencing Act 2002 and a number of authorities referred to him including R v Wickramasinghe HC AK T013408 28 March 2003;  R v Wallace [1999] 3 NZLR 159; R v Murphy HC AK CRI2004-004-009111 3 June 2005;  R v Shaida & Graaf HC AK CRI20040046330/6746 21 September 2004 Williams J;  and R v Reynecke HC AK CRI2004-004-009111 29 July 2005 the Judge took 15 years as a starting point in each case.  In the case of Mr Cai the Judge considered there were no mitigating factors and fixed 15 years as the appropriate end point.  He also imposed a minimum non-parole period of imprisonment of nine years.  In the case of Mr Ali the Judge took a starting point of 15 years but reduced that by one year for mitigating factors.  He imposed a sentence of 14 years on the lead charge and in addition imposed a minimum non-parole period term of imprisonment of seven and a half years.

Procedural matters

[15]     Mr Cai has lodged an appeal against conviction and sentence.  Mr Cai’s appeal was to be heard together with Mr Ali’s appeal but Mr Cai was, for a time, without representation.  He has now instructed counsel, but his counsel is not yet ready to advance the appeal.  We proceeded to hear Mr Ali’s appeal at this time at his request as a number of his family and friends had travelled from Australia to be at Court for the appeal. 

Mr Ali’s submissions

[16]     For Mr Ali, Mr Speed submitted that, taken as a whole, the sentence was manifestly excessive for the following reasons:

·the Judge erred in taking 15 years as his starting point;

·the Judge failed to give sufficient credit for Mr Ali’s guilty plea and other mitigating factors;  and

·the Judge was wrong to impose a minimum non-parole period, particularly given the disparity with the Crichton sentence.

Submissions for the Crown

[17]     For the Crown, Mr Downs accepted that the sentence might be described as stern but, nevertheless, submitted the sentence was within range both as to its starting and end points. 

[18]     Mr Downs accepted that one issue that might give rise to concern was the disparity with Mr Crichton’s sentence but submitted the Crichton sentence was plainly inadequate and that if there was a miscarriage of justice it was the inadequacy of that sentence rather than in relation to the sentences imposed on Cai and Mr Ali.

Decision

[19]     Mr Ali, Mr Cai, Mr Madrid and, to a much lesser degree Mr Crichton, were involved in a substantial international drug operation.  We consider the level of Mr Crichton’s involvement to be markedly different to that of Mr Cai and Mr Ali. 

[20]     Mr Ali, together with Mr Madrid, travelled from Australia to New Zealand to establish a base here for the operation.  They were sufficiently funded to enable them to pay out substantial sums of money in advance to rent the property at Botany Downs, to outfit that property and to purchase the van.  They were then instrumental, under Mr Cai’s direction, in opening 100 Post Office boxes in the Auckland area.  Mr Ali’s involvement was both substantial and ongoing.  He remained in New Zealand from his arrival on 2 February 2004 until his later arrest.  He was with Mr Cai on 4 April when drugs were uplifted from the Post Office boxes. 

[21]     In R v Davis & Collinson CA440/04 & CA13/05 20 October 2005 this Court referred with approval to the comments of Chambers J in R v Wickramasinghe HC AK T013408 28 March 2003 where the Judge said:

[21]      Those in that top level who are involved in the importation of class A controlled drugs can expect sentences in the range of 16 to 18 years. That is clear from cases which I have considered such as R v Curtis [1980] 1 NZLR 406 (CA), R v Stanaway [1997] 3 NZLR 129 (CA), R v Liava’a CA175/98 17 August 1998, and R v Lay HC NAP TO20099 27 September 2002. Those involved right at the top and in very large importations can expect sentences above the 18 years.  Indeed, of course, under the Sentencing Act, those whose offences are within the most serious of cases for which the penalty is prescribed, can expect the maximum penalty, namely life imprisonment: see s 8(c).

[22]      In this category, the quantity of the drug imported and its value will be of prime importance.  That is for two main reasons.  First, the masterminds and prime movers will know exactly how large the importation is. Secondly, because of their position, one can assume that they themselves will be rewarded by the fruits of the importation. The greater the quantities imported, the greater the rewards are likely to be for them.

[23]      There is a second category of drug importer: the person who is a crucial player in the importation but who is not the instigator, mastermind, prime mover or controller.  This category was, I think, well described by Robertson J in his sentencing remarks in R v Lam HC AK T982692 6 July 1999. He described those in this group as being ‘of prime importance but not as part of the planning nor part of the mastering of the activity, but nonetheless [having] an involvement which was of critical importance’: p 4. As Robertson J said, the reality is that, without people willing and able to carry out these lesser roles, the enterprise could not be brought to fruition.

[24]      In this category, the quantity of drugs imported, while nonetheless of significance, is not quite as important as in the first category. This is because these people do not necessarily know how much drug they are importing.  Nor are they necessarily paid from the fruits of the importation. More likely, they will be paid a fee.

[25]      The starting point for people in this category involved in class A importation would appear to be in the range of 12 to 13 years. Of course, these starting points are not fixed and there will be a blurring at the edges. Some people will come between the role of courier/collector and mastermind.  The starting point for them will normally fall somewhere in the 13 to 16 year range.

[22]     Mr Ali in the present case is in this latter category of people who fall between the role of courier/collector and mastermind.  Mr Ali was actively involved in this importation operation.  His role was a significant one.  He was considerably more involved than a courier.  However, we note that it is said for Mr Ali that he was not to share in the profits but rather was to be paid a fee for his involvement. 

[23]     We also note that although Laurenson J noted the Crown’s concession that Mr Ali may not have been involved at the same organisational level as Mr Cai and himself concluded Mr Ali’s level of authority may have been less than Mr Cai, the Judge nevertheless took the same starting point of 15 years for sentencing both Mr Cai and Mr Ali.  On the basis of the Crown concession and the Judge’s own assessment of Mr Ali’s role the starting point for Mr Ali could have been less than that of Mr Cai yet still within the band of 13 to 16 years referred to in Wickramasinghe and approved by this Court in Davis & Collinson. 

[24]     The Judge reduced the starting point by one year for mitigating factors.  In doing so he referred to three factors, the plea of guilty, the absence of previous convictions and the fact Mr Ali would be serving a sentence away from his own country and family.

[25]     The Judge was right to record that Mr Ali’s guilty plea came at a very late stage.  There can be little discount for a guilty plea entered on the second day of trial.  However, albeit late, the guilty plea was a tangible recognition of Mr Ali’s acceptance of responsibility.  It goes some way to supporting Mr Speed’s submission that Mr Ali was remorseful as recorded in the pre-sentence report.  An expression of remorse in a pre-sentence report carries more weight when preceded by a guilty plea as opposed to following conviction at trial.  In addition to the lack of previous convictions and the hardship of serving a prison sentence away from his home country and family Mr Ali’s age is also a relevant factor which the Court is directed by s 9(2)(a) of the Sentencing Act to take into account.  The Judge does not appear to have directly taken Mr Ali’s age into account.  At the time of the offending Mr Ali was 20 years old.

[26]     Standing back and looking at the matter overall, the end sentence of 14 years, given the relative roles of Mr Cai and Mr Ali, and the mitigating factors identified, is excessive.  We conclude the appropriate end sentence for Mr Ali is a term of 12 years.

[27]     We have not overlooked the sentence of two years’ imprisonment imposed on Mr Crichton.  That sentence was extraordinarily lenient and not consistent with authorities in this Court such as Wong v R CA378/02 25 March 2003.  We note that the Crown accepted before the sentencing Judge that three to four years was an appropriate starting point.  That must have been an error.  While there were substantial grounds for discounts to be given for his early plea, co-operation and the prospect of his giving evidence at the trial of his former associates, it is clear that the approach to his sentencing was affected by this misapplication of settled principles.

[28]     The issue is what impact the inadequate sentence imposed on Mr Crichton should have on Mr Ali, and on Mr Cai.  This Court has approached the matter on the basis that if the disparity is justified the earlier lenient sentence will not, of itself, require a reduction in an otherwise appropriate sentence.

[29]     In R v Nathan CA378/90 24 April 1991 this Court observed that:

… the impartial observer may well think there is something wrong with a system of justice which requires a proper - perhaps even a lenient sentence - to be reduced in order to match one that … falls a long way short of meeting the total criminality of the offending. There is the added factor that the other two associates are still to be dealt with, and the inadequacy could well be compounded if they are to be sentenced on the same basis.

[30]     In R v Kainuku CA286/82 29 April 1983 the Court declined to interfere with a sentence which on its own could be viewed as quite unexceptional.  The Court said that:

… a detached and fully informed observer would conclude that while [a co-offender] had received an unduly lenient sentence which could not in the particular circumstances be increased to a proper level [the appellant] received a proper sentence and as regards that sentence nothing has gone wrong with the administration of justice.

[31]     Mr Speed acknowledged the difficulties with the Crichton sentence and realistically did not submit that the sentence imposed on Mr Crichton was an appropriate one for Mr Ali.  However, he submitted it added force to his general submission for Mr Ali and particularly that a minimum non-parole period of imprisonment was unnecessary in this case.  

[32]     While accepting the problem with the Crichton sentence, we note there is a significant distinction to be made between the roles played by Mr Ali and Mr Cai on the one hand and Mr Crichton on the other.  The level of culpability is quite different.  The issue of comparability arises between Mr Ali and Mr Cai, not Mr Ali and Mr Crichton.  We are conscious that Mr Cai’s appeal is yet to be dealt with.  The reduction that we have applied to Mr Ali’s sentence is based on the circumstances pertaining to Mr Ali.  A fair minded observer, in possession of all relevant facts could not consider something had gone wrong with the administration of justice in relation to Mr Ali’s sentence despite the lenient sentence handed down to Mr Crichton.

[33]     That leaves the issue of the minimum non-parole period.  The sentencing Judge had regard to s 86 of the Sentencing Act 2002.  He was satisfied that the circumstances of the offending were sufficiently serious to justify a minimum non-parole period because the following factors took the offending out of the ordinary range of offending of the particular kind: 

(a)       the offending was repetitive and sustained;

(b)       it was an operation involving considerable planning and expense;

(c)       the amount and value of the drugs concerned was large;

(d)      the part played by Mr Ali was beyond that of mere courier.  He was a senior and trusted member of the organisation. 

[34]     Subject to noting that while Mr Ali was certainly a member of the organisation he was perhaps not as senior a member as Mr Cai, we agree with the reasoning of the Judge on the imposition of the minimum non-parole period.  The imposition of a minimum non-parole period was within the discretion of the sentencing Judge.

[35]     The sentencing Judge in determining what the minimum non-parole period should be adopted with regard both to Mr Ali and Mr Cai a term slightly in excess of 50 percent of the effective sentence.  Nothing has been advanced before us to suggest that this exercise of discretion should not be maintained.  Having adjusted the effective sentence to 12 years’ imprisonment, the minimum non-parole period should accordingly now be six and a half years’ imprisonment.

Result

[36]     The appeal against sentence is allowed.  The sentence of 14 years’ imprisonment together with a minimum non-parole period of seven and a half years is quashed.  It is replaced with a sentence of 12 years and a minimum non-parole period of six and a half years’ imprisonment.

Solicitors:           
Crown Law Office, Wellington