Umarji v The King
[2023] NZHC 3362
•24 November 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-451
[2023] NZHC 3362
BETWEEN AIYAZ MOHAMMED MUSA UMARJI
Appellant
AND
THE KING
Respondent
Hearing: 20 November 2023 Appearances:
D P H Jones KC for Appellant D Becker for Respondent
Judgment:
24 November 2023
JUDGMENT OF O’GORMAN J
(Appeal against sentence)
This judgment was delivered by me on 24 November 2023 at 3 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
D P H Jones KC, Auckland Zhang Law Ltd, Auckland Meredith Connell, Auckland
UMARJI v R [2023] NZHC 3362 [24 November 2023]
Introduction
[1] Mr Umarji appeals against the sentence imposed on him after he pleaded guilty to three charges of importing the Class B controlled drug pseudoephedrine.
[2] On 9 August 2023, Judge D J Sharp imposed a sentence of four years’ imprisonment, following an accepted sentencing indication provided on 24 February 2023. Mr Umarji contends the Judge failed to give him adequate discounts, including for his cooperation in returning to New Zealand.
Legal principles
[3] The Court must allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.1 Generally, the sentence must be shown to be manifestly excessive or wrong in principle.2 The focus is on the end sentence imposed, rather than the process by which it is reached.3
[4] The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of prior error, which may include questions of incorrect discounts or as to parity with co-offenders.4
[5] Appellate courts do not indulge in mere tinkering with a sentence.5 The Court generally will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.
[6] An exception is where a mathematical error has resulted in a sentence more severe than the sentencing judge intended. Such an error must be corrected, giving effect to the judge’s intentions even if the sentence imposed was within the available
1 Criminal Procedure Act 2011, s 250.
2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].
3 At [36].
4 At [32].
5 R v Boyd (2004) 21 CRNZ 169 at [38].
range.6 Conversely, an error favouring a defendant will not be corrected unless it has resulted in a sentence manifestly inadequate or inappropriate.7
[7] The practical effect of these general principles is that the appellate court does not just start afresh or substitute its own opinion. If there is an error of the requisite character, the court will then form its own view of the appropriate sentence.8
[8] In terms of mitigating factors, cooperation is a separate and independent factor from good character.9 Cooperation includes the “utilitarian value of a voluntary return [to New Zealand] and the desirability of encouraging such returns”.10 However, it is subject to a countervailing consideration of the need not to encourage offenders to abscond.11
[9] There have been several recent Court of Appeal cases where a discount for good character, as taken into account pursuant to s 9(2)(g) of the Sentencing Act 2002, has been applied in the context of sentencing for drug offending.
(a)In Martin v R, the Court of Appeal endorsed a discount of 15 per cent for Mr Martin’s previous good character in the context of a conviction for importing methamphetamine.12
(b)In Cavallo v R, Mr Habulin, Mr Cavallo and Mr Scott pleaded guilty to offences related to the importation of cocaine into New Zealand.13 The Court of Appeal confirmed a five per cent discount in Messrs Habulin and Cavallo’s cases, and three per cent in Mr Scott’s case, for the greater hardship of serving a sentence in a country removed from their families and because English was not their first languages.14 In respect of Mr Scott’s contention that the Judge erred in not discounting for good
6 Tutakangahau, above n 2, at [36]; and Ferris-Bromley v R [2017] NZCA 115 at [15(a)].
7 Ferris-Bromley, above n 6, at [15(c)].
8 Tutakangahau, above n 2, at [30], referencing R v Shipton [2007] 2 NZLR 218 (CA) at [140]; and
Te Aho v R [2013] NZCA 47 at [30].
9 Pearce v Department of Corrections [2022] NZHC 1826 at [25].
10 Rogers v R [2010] NZCA 48, (1020) 24 CRNZ 809 at [19(b)].
11 At [19(c)].
12 Martin v R [2022] NZCA 285 at [106].
13 Cavallo v R [2022] NZCA 276.
14 At [82].
character and rehabilitative prospects, the Court of Appeal took the view that his previous offending excluded the good character discount, but a seven per cent discount was appropriate for rehabilitative prospects.15
(c)In Zhang v R, Mr Zhang was convicted of importing methamphetamine.16 A 50 per cent total discount was given for a guilty plea, Mr Zhang’s remorse, the fact he had no previous convictions, and the fact that he was previously of good character and living a productive life. The Court of Appeal noted that the correct sentencing methodology is to apply any discounts for personal mitigating factors first, followed by any discounts for guilty pleas.17 Allocating 20 per cent for the guilty plea discount, the Court of Appeal endorsed a 30 per cent discount for personal mitigating factors to be “within range”.18
(d)In R v Ingram, Mr Ingram and Mr Macris were convicted of charges involving MDA, a drug related to the amphetamine family of drugs to which methamphetamine belongs.19 The Court of Appeal noted with approval that a five per cent discount was given to Mr Ingram for his good character, and a 10 per cent discount given to Mr Macris for remorse and good character.20
(e)In FF v R, FF was convicted on charges involving the importation of methamphetamine into New Zealand. In the Court of Appeal, it was common ground that FF was entitled to a discount for good character.21 Despite the fact that serious drug offending was involved, a discount of
15 At [84].
16 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
17 At [258]. These discounts are both applied as a percentage of the “adjusted starting point”:
Cavallo, above n 13, at [8].
18 At [258]–[259].
19 R v Ingram [2018] NZCA 252, [2018] 3 NZLR 783.
20 At [9] and [94].
21 FF v R [2017] NZCA 294 at [12]–[14].
20 per cent was available under the two heads of genuine remorse and the degree of good character shown.22
[10] Sentencing indications are now provided for in a framework codified in ss 60-65 of the Criminal Procedure Act 2011. A sentencing indication is binding on the judge who gives the sentencing indication, unless information arises later which materially affects the basis on which it was given.23 If that is the case, the court must grant leave to a defendant to withdraw the defendant’s guilty plea.24 The indication is not binding on any other judge,25 but if the indication is not followed in an appeal, the defendant may (with leave) be given the option to withdraw their guilty plea if a more severe sentence than that indicated is imposed on appeal.26
The offending
[11] Mr Umarji is a Fijian national who was living in Fiji at the time of the offending. He was the managing director of several pharmacies in Fiji and across the Pacific region that were part of the “Hyperchem” group. Among other roles, Mr Umarji was responsible for the importation and exportation of pharmaceuticals into and out of Fiji. At all material times, these entities had lawful authority to import products containing pseudoephedrine into Fiji. Prior to 2021, the same could be sold over the counter in Fiji without a prescription.
[12] Mr Umarji was also the sole shareholder of a company called Bio Pharma Ltd. That company was set up for the sole purpose of transferring monies between syndicate members with respect to the importation and distribution of illicit drugs. The sole director of that company was Mr Dalal, a co-defendant in the offending. Mr Dalal was employed at a freight forwarding company in Auckland, through which he had access to a Custom Controlled Area.
22 At [14].
23 Criminal Procedure Act, s 116.
24 Section 115(2)(a).
25 Section 116(3).26 Section 252 (with effect from 5 March 2012). See a discussion of the earlier miscarriage of justice principles in R v Smail [2008] NZCA 6, [2008] 2 NZLR 448; R v Edwards [2006] 3 NZLR 349 (SC); and R v Gemmell [2000] 1 NZLR 695 (CA).
[13] On 23 October 2017, police were called to Mr Dalal’s home address and located in excess of 4,000 boxes of Actifed pills27 and $726,190 in cash. This led to the police identifying Mr Umarji as involved in the illegal drug operation. Three importation charges were filed against Mr Dalal and Mr Umarji, each relating to a different consignment. The combined amount of Actifed pills imported into New Zealand from all three consignments was 678,000 with a total amount of pseudoephedrine of 40.68 kgs, with an approximate value between five and six million dollars.
District Court Judgment
[14] At Mr Umarji’s request, Judge Sharp provided him with a sentencing indication. In the sentencing indication, the Judge noted that Mr Dalal had already been sentenced using a starting point of nine years. The Judge referred to the need to consider parity as between Mr Umarji and Mr Dalal.28 Noting considerable parallels between the two defendants, the Judge confirmed that he would adopt a nine year starting point.29 Judge Sharp then indicated the following:30
(a)the full 25 per cent reduction for a guilty plea;
(b)a minimum of 15 per cent in terms of a good character discount; and
(c)some discount as yet unspecified in respect of the assistance to prosecution and remorse.
[15] Mr Umarji accepted the sentencing indication and pleaded guilty. At sentencing on 9 August 2023, the starting point of nine years’ imprisonment was confirmed.31 The following discounts were then applied:32
(a)two and a half years (27.78 per cent) in respect of the guilty plea;
27 Actifed is a cold and flu medicine. Each packet contains 30 pills, and each pill contains 60 mg of pseudoephedrine.
28 R v Umarji DC Auckland CRI-2019-004-11692 at [12] [Sentencing Indication].
29 At [19].
30 At [24]–[25].
31 R v Umarji [2023] NZDC 1835 at [12] [Sentencing Notes].
32 At [7] and [12]–[13].
(b)a year and a half (16.67 per cent) in respect of good character and exceptional contributions to society;
(c)six months (5.56 per cent) for remorse; and
(d)six months (5.56 per cent) for isolation and difficulties that a custodial sentence would bring given that the defendant was not a New Zealand national and had family outside of New Zealand.
[16] The transcript shows that counsel for the defendant sought clarification at the end of the sentencing hearing, and the Court confirmed that cooperation with the prosecution had been included as part of the good character discount for facing the consequences of his offending.
Grounds of appeal
[17] The total discounts amounted to five years (55.5 per cent), which resulted in an end sentence of four years’ imprisonment. Mr Jones KC, counsel for Mr Umarji, advances the appeal on the following bases:
(a)The discounts given to Mr Umarji were inadequate in the circumstances, because insufficient credit was given in relation to the following factors referred to in the Sentencing Act:
(i)his good character and contribution to society in terms of s 9(2)(g);
(ii)cooperation with the authorities and surrendering to the New Zealand jurisdiction in terms of s 9(2)(fa);
his remorse in terms of s 9(2)(f); and
(iv)the hardship that will be suffered by Mr Umarji serving a sentence of imprisonment in this country, given his isolation in terms of s 8(h).
(b)Counsel for the appellant argues that Mr Umarji’s discounts should exceed those of his co-defendant. Both offenders received an end sentence of four years’ imprisonment, even though an additional charge faced by Mr Dalal increased his starting point to 10 years.
[18] Mr Jones says discounts totalling approximately 75 per cent are appropriate, which would result in an end sentence of three years:
(a)25–27.78 per cent for his guilty plea;
(b)15 per cent or more for good character;
(c)15 per cent for cooperation;
(d)8–10 per cent for remorse; and
(e)8–10 per cent for isolation.
Analysis
Mathematical error
[19] I begin by considering whether there is a mathematical error that must be corrected. There are two issues for potential consideration under this category.
[20] The first is that a discount of 27.78 per cent was applied in respect of the guilty plea, which exceeds the maximum of 25 per cent. Naturally, the appellant makes no complaint about this aspect, and the Crown has not pursued any appeal. I therefore do not regard it as providing a jurisdictional gateway for this Court to form its own view of the appropriate sentence. The additional three months’ discount has not resulted in a sentence manifestly inadequate or inappropriate. Rather, that additional discount is something that will form part of my consideration when stepping back and making an overall assessment of whether the end sentence is manifestly excessive or wrong in principle.
[21] The second potential mathematical error relates to the discount for cooperation. But for the clarification with the Judge at the end of the sentencing hearing, it seemed that no discount was made for cooperation. This aspect was not referred to in the sentencing notes. That was inconsistent with the sentencing indication, which referred to Mr Umarji surrendering himself to custody and thereby shortening the process and saving costs and other difficulties for the prosecution, so Mr Umarji would “necessarily receive credit for that”.33 Elsewhere in the sentencing indication, Judge Sharp said that a “minimum of 15 per cent” would be given in respect of good character discounts.34 The only way to reconcile the single allocation covering both (per the clarification in the transcript, outlined above at [16]) is to conclude that a
1.67 per cent discount (at most) was applied for cooperation. Mr Jones does not seek to argue that there was an error in overlooking any discount for cooperation. Rather, Mr Jones’ argument is that the discount for both factors was inadequate. Mr Jones says a discount of at least 20 per cent should be given for previous good character alone. Cooperation should be assessed separately, and a discount of 10–15 per cent for cooperation should be provided for this separate mitigating factor. Accordingly, Mr Jones does not seek to advance any mathematical error exception. Rather, the appeal is pursued under the general principles that the overall sentence is manifestly excessive, and the reason for that is incorrect (and inadequate) discounts applied.
[22] The Crown also approaches this appeal under the general principles, arguing that this Court does not have any cause to substitute its own view for that of the sentencing judge. The Crown’s position is that the overall sentence is not manifestly excessive or wrong in principle, and this Court should not tinker with the sentence or focus on the process by which it was reached. Having said that, the Crown does argue that the Court of Appeal case of R v Wang should be followed and very little discount for good character is justifiable in cases of drug offending of this kind.35 Accordingly, in making a submission that the 16.67 per cent reduction for both good character and cooperation is entirely adequate, the Crown argues that less than 15 per cent would be appropriate as a discount for good character, notwithstanding the sentencing indication.
33 Sentencing Indication, above n 28, at [21].
34 At [22].
35 R v Wang [2014] NZCA 409 at [28]–[29].
[23] Given that neither party has advanced a mathematical error requiring correction, I approach this appeal under the general principles of whether the sentence is manifestly excessive. This in turn involves assessing the appellant’s contentions that insufficient discounts have been applied.
Good character
[24] The sentencing notes describe Mr Umarji’s good character.36 This includes reference to a pre-sentence report and letters in support about Mr Umarji’s background and the works he had done. Mr Umarji is described by those who know him (aside from the offending) as devoted to his family and faith, an honest and fair businessperson, who has done many positive things of real benefit in terms of his contribution to an orphanage and involvement with people who need his assistance and skill. The Judge considered this would justify a discount beyond the ordinary discount that would be provided for someone who had not had any prior offending. The Judge rejected the Crown’s argument that Wang restricted the level of good character discount that could be provided in cases of this nature.37 Judge Sharp noted that the defendant had relied on the sentencing indication that a 15 per cent character discount would be provided and reiterated that it would be wrong for Mr Umarji not to receive that benefit in terms of “exceptional contributions” to society apart from the offending behaviour.38
[25] Considering the range of good character discounts referred to in the cases listed at [9] above, I do not find any error in the approach adopted by the sentencing Judge. I do not accept that Wang precludes a discount for good character in the context of sentencing for drug offending. Rather, this is something for assessment on the particular facts. I also think it would create injustice to renege on the sentencing indication in this case, which referred to a minimum 15 per cent good character as a factor separate from cooperation. The sentencing indication remained binding on the Judge, as information had not become available after the indication was given that materially affected the basis on which it was given.
36 Sentencing Notes, above n 31, at [2]–[3].
37 At [8]–[9].
38 At [12].
Cooperation
[26] The question of cooperation is in a different category. Cooperation was not quantified as an independent discounting factor in the sentencing notes. I accept it should have been based on the principles referred to at [8] above. A discount of
1.67 per cent (at most) in the factual circumstances does seem manifestly inadequate.
[27] Mr Umarji voluntarily submitted to the jurisdiction of the Court, which substantially reduced the length of proceedings and costs. The police laid charges on 18 December 2019. At that time, Mr Umarji was overseas, so application was made for a warrant in lieu of summons and an Interpol Red Notice was subsequently issued.
[28] Mr Umarji lives in Fiji, but in late 2021 he had travelled to India for medical treatment. After he became aware of the charges and instructed counsel, Mr Umarji agreed to travel back to Fiji from India, with the ultimate aim of him coming to New Zealand to answer the charges. That is ultimately what happened, thereby obviating the need for any extradition process.
[29] The Crown urges caution. It says that the Interpol Red Notice restricted Mr Umarji’s ability to travel freely, and it contends that was likely the trigger for Mr Umarji agreeing to surrender himself, rather than any intent to cooperate. Further, the Crown urges the Court to be careful about not encouraging offenders to abscond to claim a discount by then returning. Overall, it says that the combined discount of
16.67 per cent for both good character and cooperation is entirely adequate.
[30] I accept Mr Jones’ submissions that the caution about not encouraging offenders to abscond is not directly engaged here, where Mr Umarji was already overseas. There is no suggestion that he took the opportunity to flee from pending charges. The type of cooperation that Mr Umarji provided is entirely within the purpose of having a separate mitigating factor pursuant to s 9(2)(fa) of the Sentencing Act. Awarding distinct discounts provide an incentive to cooperate, thereby serving the wider public interest. I consider that a separate discount of approximately 10 per cent should have been provided for this mitigating factor on the facts, and failure to make such provision was a material error.
Isolation in absence of family support
[31] Mr Umarji received a six month (5.56 per cent) reduction to account for the personal circumstances of him serving a sentence in New Zealand, without the support of his family who remain in Fiji.
[32] A discount of eight per cent was applied in Hayden v R, but at a time when Covid border restrictions prevented overseas travel.39 In Cavallo, the discounts were three and five per cent.40
[33] I accept that there are financial and practical difficulties in having family visit from Fiji while he is currently held in Tongariro/Rangipo prison. However, the discount recognises this. My assessment is that 5.56 per cent was within an acceptable range in the circumstances.
Remorse
[34]Mr Jones submits that a 10 per cent discount for remorse is warranted.
[35] The Crown contends that six months was entirely adequate, particularly when Mr Umarji’s regret seemed to be focused on him being caught up in this prosecution situation, rather than having any genuine remorse for the harm caused to the New Zealand community.
[36] I have reviewed Mr Umarji’s letter to the Court and the pre-sentencing report. I accept that Mr Umarji did show genuine remorse and concern for the harm that might have been caused to the people of New Zealand who may have been subjected to the drugs and/or chemicals that were found in the medication imported into New Zealand. However, I do not consider that the Judge made any error in arriving at a discount of
5.56 per cent for this factor. The Judge accepted that there was genuine remorse,41 and that Mr Umarji had reflected on the harm caused.42
39 Hayden v R [2020] NZCA 369 at [57].
40 Cavallo, above n 13, at [18].
41 Sentencing Notes, above n 31, at [11].
42 At [10].
Parity
[37] It is common ground that when considering parity, it is more important to consider parity of starting points rather than end sentences.43 This is because co-offenders may legitimately receive different end sentences reflecting aggravating and mitigating factors personal to each offender.
[38] Counsel for the appellant takes the position that it is more than mere coincidence that Mr Umarji and Mr Dalal ended up with the same end sentence of four years’ imprisonment. The Court should infer that parity of end sentence was pursued, and this is unfair because Mr Dalal had a higher starting point by one year and Mr Umarji should be entitled to greater discounts by comparison.
[39] The sentencing Judge’s reference to parity were solely in respect of the starting point. I do not accept there is any inference that parity of end sentence was also considered. I do not attempt to reconcile the two end sentences because this would be to make the very error of which Mr Jones complains.
Overall
[40] Given my finding that there was a material error in dealing with the discounting factor of cooperation, I need to form my own view of the appropriate sentence to determine whether the end sentence of four years is manifestly excessive.44 I compare that view with the sentence imposed to assess whether the difference goes beyond mere tinkering.
[41] In my view, if I were to substitute my own assessment, a total discount of approximately 61 per cent (5 years and 6 months) would be appropriate:
(a)25 per cent for guilty plea;
(b)15 per cent for good character;
43 R v Mako [2000] 2 NZLR 170 (CA) at [53].
44 Tutakangahau v R, above n 2, at [30], referencing Shipton, above n 8, at [140]; and Te Aho, above n 8, at [30].
(c)10 per cent for cooperation;
(d)5.56 per cent for isolation;
(e)5.56 per cent for remorse.
[42] It follows that, stepping back and assessing the overall end sentence imposed, the appellant has succeeded in showing that the end sentence was manifestly excessive, having failed to provide adequate discount for Mr Umarji’s cooperation as a distinct mitigating factor. I consider that such a difference goes beyond mere tinkering.
Result
[43]The appeal is allowed.
[44] The sentence of four years’ imprisonment imposed in the District Court is quashed. A sentence of three years and six months’ imprisonment is substituted.
O’Gorman J
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