IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE	
CRI-2018-009-004423
CRI-2017-009-010361 [2019] NZHC 3422	

THE QUEEN	
v	
SIMOTE VEA MICHAEL COOPER JOHNATHON SEAL	

Hearing:	18 December 2019	
Appearances:	B Hawes for the Crown
P Johnson for the Defendant Vea
P H B Hall QC and E Huda for the Defendant Cooper S J Hembrow for the Defendant Seal	
Judgment:	19 December 2019	

SENTENCING REMARKS OF NATION J

[1]	I will just say to the defendants, it is obviously a tragedy for each of you and your families for you to be here being sentenced for this. You will understand that your counsel each filed detailed submissions, as did the Crown. I have read those carefully so what you have heard today only really touches on what has been put before me and what I have had a chance to consider carefully before sentencing you.

Introduction

[2]	Michael Cooper and Johnathon Seal, you appear for sentence after each pleading guilty to a single charge of importing methamphetamine. That charge relates to what I will call the “Christchurch importation”. Simote Vea, you appear for

R v VEA, COOPER, SEAL [2019] NZHC 3422 [19 December 2019]

sentence after being found guilty by a jury of three charges of importing methamphetamine. One charge relates to the Christchurch importation. The other two relate to the Toa and Lau importations. The maximum penalty you each face is life imprisonment.

Facts

[3]	I will deal with the facts of the Christchurch importation first and discuss the approach which the Court of Appeal say I should take on sentencing. I will then deal with your particular offending Mr Vea and fix the sentence. And, I will then deal specifically with the sentences for you Mr Cooper and Mr Seal.

The Christchurch importation

[4]	On 1 November 2017, the New Zealand Customs Service took control of an imported consignment of 20 boxes of safety lamps weighing in total 250 kg. The consignment arrived in Christchurch from Mexico via the United States on a Singapore Airlines flight. The safety lamps were individually packaged in boxes. When examined by Customs, each box was found to contain a safety lamp along with two packages of methamphetamine concealed in the base of each lamp. Each package of methamphetamine weighed approximately 1.1 to 1.2 kg with a total weight of 39.7 kg and a purity of 80 per cent. The reference to the wholesale and street value of this importation in the summary of facts, on which you Mr Seal and Mr Cooper pleaded guilty, was deleted. The Court however knows from other cases that this importation was potentially worth millions of dollars on either a wholesale or retail basis.

[5]	In Zhang, the Court of Appeal said that Mr Zhang had been sentenced on the basis methamphetamine, with a purity of 80 per cent, the same as applied with your importation, had a value of between $265,000 and $500,000 per kilogram. The value of the 49 kg of methamphetamine involved in your importation would have been between about $13 million and $24 million on that basis.

[6]	In Zhang however, the Court of Appeal referred to the social costs associated with methamphetamine use. They referred to the Ministry of Health’s attempt to analyse the social harm associated with methamphetamine use. On their index, they calculated the total social costs associated with methamphetamine in 2016 at

approximately  $1,239,000 per kilogram.	On that basis, this importation had the potential to cause social costs in New Zealand in excess of $60 million.

[7]	The harm resulting from methamphetamine use to individuals, their families and their communities is well documented. In its judgment in Zhang v R, the Court of Appeal referred to the recommendations and features of methamphetamine use in New Zealand and its effects that led to the reclassification of methamphetamine as a Class A drug in 2003.1 I will not repeat those here, they are probably just words to each of you. What might mean something is the Court of Appeal’s reference to how the use of methamphetamine was causing social deprivation in Kawerau in 2017 – children going without food, adequate clothing and school supplies – household income being used to fund methamphetamine use. The Court of Appeal referred to the way the community there had taken various initiatives to rid their community of methamphetamine.

[8]	The value of the importations you three were involved in could be realised only through methamphetamine being distributed amongst new communities where it would cause the sort of harm that was evident in Kawerau. That sort of distribution is possible only through the way people like you have facilitated the importation of significant quantities of methamphetamine. The Court must impose sentences where the emphasis is on deterrence and holding you accountable for the way what you did could have caused such harm.

[9]	Mr Vea, you are an example of the damage that can result from methamphetamine use. And, can I say that I have really just now read the long letter that you wrote to me. The Court is used to receiving letters from people who are being sentenced in which they essentially ask for mercy and promise they are going to mend their ways. I do acknowledge the effort you went to to actually put on paper the way your use of methamphetamine basically led to a series of seriously bad decisions, the damage it has done to you, to the people you work with and to your family. Your use of methamphetamine has led to your criminal offending, you now facing a long prison

1	Zhang v R [2019] NZCA 507, citing The Expert Advisory Committee on Drugs (EACD) Advice to the Minister on: Methamphetamine (2002) at 3.

sentence, the loss of a long marriage, shame for your family, and the loss of your employment in a position where you had trust, respect and a good income.

[10]	The Court of Appeal has said that, apart from quantity, sophisticated importation methods, large scale manufacture, trans-national aspects, money laundering and organised crime are all indicators of the most serious offending. A number of those matters were a feature of this offending. Quantity is an important mark as to the seriousness of the offending which must be taken into account on sentencing and an indicator of the corrosive harm to communities that could result from methamphetamine importation of the sort that occurred here.

[11]	Each of you significantly facilitated the importation of methamphetamine and thus potentially its distribution in ways that could have caused significant harm within New Zealand. In Zhang, the Court of Appeal said distribution in New Zealand is entrenched within ethnic gangs such as the Mongrel Mob, Black Power and outlaw motorcycle gangs such as the Rebels and the Bandidos. Because methamphetamine is imported and distributed in this way, it can be difficult to establish just how offenders like you have come to be involved in the importation. It explains why offenders who are caught provide such little verifiable information as to how they became involved. That had applied to all three of you.

[12]	The summary of facts records that you, Mr Cooper and Mr Seal, both participated in the planning and documentation for the importation and liaised regularly after its arrival, facilitating its delivery and the duty and regulatory processes to get it released to your custody.

[13]	Mr Cooper, you completed the importation application documents for the consignment, giving your driver’s licence, but substituted a false address and used a different phone number for completion of the form. In the importation documents, you provided the delivery address as the business address operated by Mr Seal’s father.

[14]	Mr Seal, you contacted the freight forwarder DHL enquiring after the consignment and you gave further details for its delivery to this address. You coordinated the payment of duty and GST and provided account details for the costs to be charged to.

[15]	Mr Cooper and Mr Seal, you communicated using burner phones which you purchased specifically for the importation.

[16]	The export of the packages from Mexico to the Christchurch address was arranged through a division of DHL, DHL Express. At the time, Mr Vea, you were employed as a Customs Brokerage Manager at DHL Global New Zealand Ltd, based in Auckland. DHL Global was not normally involved in the delivery of this sort of consignment. On 6 November 2017, you sent an email to a generic DHL Express email portal requesting the paperwork and saying that DHL Global would be Customs clearing the consignment. You attempted to have the consignment diverted to Auckland rather than be delivered to Christchurch.

[17]	On 9 November 2017, the Police and Customs carried out a controlled delivery of the consignment in Christchurch after having removed the methamphetamine but for 10 grams. The remainder was substituted for a product similar in appearance.

[18]	On 14 November 2017, you Mr Seal went to the delivery address and uplifted one of the boxes containing the safety lamps and methamphetamine substitute. You immediately transported the box to your home address in Shirley. A short time later, you, Mr Cooper, visited Mr Seal’s address with an associate, uplifted the lamp containing the methamphetamine substitute and transported it to your own address in Northwood.

[19]	Soon after, Police and Customs staff executed simultaneous search warrants at both your addresses. During the search at your address Mr Cooper, Police saw you attempt to flush the product in your bathroom.

Case law

[20]	Counsel have helpfully referred the Court to a number of similar cases. Making factual analogies to cases is somewhat difficult where, as the Court of Appeal foreshadowed, there is limited information as to what role the defendants played. Inferences necessarily have to be made.

[21]	The approach Judges have to take in sentencing offenders involved in such importations as occurred here has recently been reviewed carefully by the Court of Appeal in the case of Zhang v R.2 Two of the offenders considered in Zhang are relevant.

[22]	Mr Zhang was sentenced on one charge of importing 17.9 kg of methamphetamine. The Court of Appeal considered the role he played as significant but at the lower end, serving an operational function within the chain by travelling to New Zealand to meet a consignment of drugs once it arrived and ensuring it cleared Customs. The Court held that Mr Zhang was more than a mere “catcher”, but there was no evidence that he was involved in directing others and it appears he was receiving instructions from someone higher up in the chain of command. The Court of Appeal would have imposed a starting point of 15 years, lower than the High Court’s starting point of 17 years.

[23]	Mr Yip pleaded guilty to seven charges of methamphetamine offending; two of importing, two of supply, one of attempted supply and two of possession for supply.3 He was part of a criminal organisation based in Hong Kong, which had sent him to be the person on the ground in New Zealand taking instructions from Hong Kong and passing them on to others. The lead importing offence involved approximately 60.9 kg of methamphetamine. Mr Yip communicated with operatives in Hong Kong about the importation, was involved in the methamphetamine extraction process, and arranged for the imported methamphetamine to be on-sold. The Court of Appeal assessed Mr Yip as having a leading role, given he must have understood the large and commercial scale of the operation. However, the Court recognised the disproportionately small payment Mr Yip was to receive for his involvement and that he appeared to not have a significant amount of decision-making power. Because of the very high quantity and Mr Yip’s mid-to-lower level leading role in the offending, the Court of Appeal would have imposed a starting point of 23 years’ imprisonment, lower than the High Court’s 25 year starting point.

2	Zhang v R, above n 1, at [246]-[264].
3	At [282]-[310].

[24]	I have considered how Zhang was applied in the recent sentencing in R v Doan.4 I have also been assisted by the approach the Court of Appeal took in pre- Zhang cases, such as Chan v R, O’Connor v R and R v Agu, and the sentences that were imposed in the High Court in R v Yuen and R v Sze.5

Mr Vea

[25]	I will now deal with you Mr Vea. Your two other charges relate to two consignments of methamphetamine which arrived in New Zealand from Canada in November 2017. The “Toa consignment” was declared as a video LED panel. Between the LED screen and the componentry was a vacuum sealed bag containing approximately 4.1 kg of methamphetamine with a purity of 43 per cent. The “Lau consignment” was of 3.9 kg of methamphetamine, hidden under a digital effects processor and two loose circuit boards, which had been declared as a “vocal karaoke effect”. The methamphetamine there was of 62 per cent purity.

[26]	Applying the same sort of analysis as I referred to earlier, the street value of the 8.2 kg of methamphetamine seized by Customs in these two consignments could have been between approximately $2 million to $4 million. The social costs of the use of such methamphetamine, applying the Ministry of Health index, would have been some $10 million.

[27]	Mr Vea, with the Christchurch importation, you knew enough of others involved in the importation to obtain the waybill information which you needed to be able to refer to the consignment within the DHL system. On 6 November 2017, you called both the landline for the Christchurch delivery address of Sealing Solutions and Mr Seal’s burner cell phone number. You were thus in contact with those to whom the methamphetamine was being delivered.

[28]	Using that information, on 6 November 2017, you sought to take control of the consignment by emailing DHL in Christchurch asking for the paperwork for the consignment and by saying that Global Forwarding would be clearing this through

4	R v Doan [2019] NZHC 2749.
5	Chan v R [2018] NZCA 148; O’Connor v R [2016] NZCA 414; R v Agu [2018] NZCA 147; R v Yuen [2016] NZHC 571; R v Sze [2016] NZHC 1703.

Customs. Your communications with DHL Express in Christchurch were not part of normal business. The consignment was already under the control of Customs. You were too late. Customs had advised DHL in Christchurch of their interest in the consignment.

[29]	Your communication immediately aroused suspicion amongst DHL managers in Christchurch but, inadvertently, you were copied into an email within DHL which informed you that Customs were holding the consignment.

[30]	There was evidence that showed you had a link to the distribution network through Facebook message communications you had with an associate who you knew socially.

[31]	On 29 October 2017, you sent this associate a Facebook message saying “yeah bruv, I’ll get an indication on next shipments quantities and discuss with you so you can plan ahead etc when it arrives”. There were then further communications. On 1 November 2017, you sent a message “not yet bruv, meet up with the man tomorrow. Nothing at the moment”. On 6 November 2017, you communicated with DHL Express in Christchurch about the consignment. On 6 November 2017, the associate messaged you saying “any word on job come up yet bruv”. By then you knew of Customs’ interest in the consignment. Your immediate response was “we just had a pallet get sunk in the water bruv so they are trying to organise another replacement asap not sure when”. Your associate had a business called Midnight Motors in Tauranga. You told investigators that your communication was connected to some sort of mechanical work this person was doing on lease vehicles for the DHL fleet. That was a fabrication. It was clear from the associate’s evidence at trial that he was not seriously involved in any such business.

[32]	Your other two charges related to further enquiries you made of DHL Express as to the Toa and Lau consignments.

[33]	The day after you told the associate the pallet was sunk in the water and said “so they are trying to organise another replacement asap”, you contacted DHL Express about the Toa consignment using the name of the addressee “Tom”. On that occasion

and on 11 November 2017, you called DHL Express in Auckland on your cell phone enquiring of a consignment that was arriving from Canada. You knew the waybill number for the consignment. On both occasions you identified yourself as being “Tom” or “Tom Toa”, the addressee of the consignment. On 7 November 2017, you provided an address for delivery. On 13 November 2017, you called DHL Express enquiring about the Lau consignment, quoting the waybill number, identifying yourself falsely as “Nick” and providing a delivery address for that consignment. In that call, you said to the call centre representative “can we pick it up”. You made two similar calls on 13 November 2017 providing an address for that delivery. The addresses you provided for these two consignments were in parts of Auckland near where you worked.

[34]	Mr Vea, you are now 38 years old. The pre-sentence report says you tried to shield yourself from the illegality of what you were doing by trying to convince yourself that you did not know what was in the consignments. The report says you now unconditionally accept the jury’s verdict and your guilt of these offences. You also acknowledged to the report writer that you were using methamphetamine on a daily basis. The report writer said the charges on which you were found guilty strongly support the proposition that your involvement in the offending was not confined to monetary gain but also to gain ready access to drugs. I now also have the lengthy letter that I referred to earlier, from which it is clear that you knew you were involved in an importation of methamphetamine.

[35]	You were married for a long time, have four children, the oldest of whom is
19. The report says your marriage did not survive the pressure you put yourself under through the need to support your drug habit and the efforts you had to make to hide the costs involved from your wife. You have referred to those sorts of pressures and what it did to your marriage in your letter. You were employed for 19 years as a Customs broker, rising through the ranks to a point where you were earning $145,000 a year before losing that position as a result of your offending.

Crown submissions

[36]	The Crown submits that your offending is aggravated by your involvement in three separate imports, totalling 47.7 kg of methamphetamine. Counsel accepts that your role was not at the top end of the chain and you were not a principal. The Crown accepts there is no evidence that you had any role in directing or leading any aspect of the import. However, the Crown submits that you took, or tried to take, a material role in the imports. This is particularly so in relation to the biggest import when you tried to have the consignment redirected to Auckland. The Crown submits your role was more than a mere “catcher”, in that you used your work position to facilitate the delivery of the imports, with a level of authority to deal with these matters. Counsel submits a starting point of around 20 years would be appropriate to reflect all three imports.

[37]	You have dated previous convictions, including serving time in prison for violence in 2000, but you have no relevant convictions and no uplift is sought.

[38]	The Crown flagged that “the Court may wish to consider imposing a minimum term of imprisonment”, particularly given your involvement in multiple importations.

Defence submissions

[39]	Your counsel, Mr Johnson, compares your offending with that of Mr Yip, discussed in Zhang.6 Mr Yip’s offending involved a greater quantity of methamphetamine, he had substantial links to a Hong Kong-based criminal organisation, and he was involved in setting up supply transactions. As I have mentioned, he received payment for his involvement, but a disproportionately small amount. The Court of Appeal there decided a starting point of 23 years’ imprisonment was appropriate.

[40]	In your case, Mr Johnson submits there is no evidence you were motivated by money, no evidence you arranged any of the importations and no evidence of any connection to Mr Seal or Mr Cooper. He submits there was no evidence that you were

6	Zhang v R, above n 1, at [282]-[310].

to personally receive any of the methamphetamine imported, or that you were to play any part in the supply, nor that you had any knowledge of the quantities involved.

[41]	I should point out that Mr Johnson’s submissions were made before he would have seen and provided the Court with the letter that you have just recently provided.

[42]	In these circumstances, Mr Johnson submits that an appropriate starting point would be 18 to 19 years’ imprisonment.

[43]	He submits that no uplift is required to reflect your minor criminal history and he submits a discount should be available for the 12 months you spent on electronically monitored bail.

[44]	While Mr Johnson acknowledges there was a breach of trust implicit in this offending, he reminds the Court of the evidence at trial that you were a valued and trusted employee who worked hard to lift yourself up to a senior position. This offending represents a very significant fall from grace.

[45]	Mr Johnson also discusses your methamphetamine use, submitting that it was undoubtedly what led to you becoming involved in the importations. He submits credit is due for your addiction.

[46]	He acknowledges that no credit is available for a guilty plea.

[47]	He finally submits that no minimum period of imprisonment is required, as you have no previous relevant history and the length of sentence will be sufficient to denounce and deter.

Discussion

[48]	From the evidence at trial, I consider you played an ongoing role in monitoring and facilitating the importation of methamphetamine, using your position as a senior and trusted employee of DHL. The quantity of methamphetamine involved and the potential social harm that could have been caused through the importations was significant.

[49]	The quantity of methamphetamine involved in this offending puts it clearly in band five of Zhang, with a starting point range of 10 years to life imprisonment. This is not a case where the quantity or your role is sufficiently minimal to consider a starting point below this range.

[50]	I consider the way you abused your position as a Customs broker is a particularly aggravating feature of this offending. I learnt from the evidence at trial the way in which Customs has to depend on the integrity of international agencies such as DHL to ensure that importations of goods are what they purport to be, to keep the goods secure for Customs’ purposes until they have been properly cleared and for ensuring that appropriate Customs duty is collected and paid. All those working as Customs brokers for DHL know they must meet their obligations and responsibilities in this regard. People in your position were in a privileged and powerful position, able to control what happens to imported goods. You abused that position of trust, letting down yourself, your fellow employees and the business you worked for. You allowed the Customs brokerage system to be corrupted in ways that, were it to be repeated, would have serious consequences in a number of ways for New Zealand. You consciously chose to allow that to happen. You were willing to take the risks of doing so.

[51]	I am not able to sentence you on the basis there was to be no financial gain (indeed, in your letter, you have acknowledged there was going to be a financial gain to you) or you were not to gain in any other way from your involvement in what happened. You could have benefited from having access to methamphetamine, which you now acknowledged you were using on a daily basis. You have said in your letter that you expected to gain financially in a way that would have enabled you to purchase methamphetamine rather than obtaining a free supply of methamphetamine. The risks, however, you chose to take with what you did were so great, I infer there was probably an element of greater gain for you. And, given the value of the importations, that potential gain could well have been considerable.

[52]	Although there is information that you were using methamphetamine on a daily basis, there is no independent information before me to suggest you were addicted and that you became involved in this offending purely to feed your drug habit, although I acknowledge in your letter you attribute your offending entirely to your drug habit.

[53]	I accept your role in these importations was much more than a “catcher”. You knew enough of the importers to obtain the information you needed to make enquiries of DHL express as to what was happening with all three consignments. As to the Christchurch consignment, you endeavoured to have that consignment redirected to Auckland where you would be able to take control of it. As to the Toa and Lau consignments, you provided DHL Express with the addresses to which they were to be delivered.

[54]	In Zhang, the Court of Appeal said that, in the context of methamphetamine sentencings, particularly relevant purposes include holding the offender accountable for harm, the promotion of the sense of responsibility, denunciation of the conduct, the deterrence of the offender and other persons from committing similar offending, the protection of the community and assistance in an offender’s rehabilitation and reintegration.

[55]	There are no mitigating features as to your offending.

[56]	I consider an appropriate starting point for the offending for all three importations to be 20 years.

[57]	I next consider whether there are mitigating or aggravating circumstances relating to you personally that should affect the sentence.

[58]	After being in some trouble as a young man, you did well in life, particularly through your career as a Customs broker where you had the respect of your workers and rose to a position of responsibility. But, as the Court of Appeal observed in Zhang, in sentencing those convicted of dealing commercially in controlled drugs, the personal circumstances of the offender must often be subordinated to the importance of deterrence.

[59]	The Court of Appeal did however refer to mitigating considerations that could potentially be germane to methamphetamine offending. In your case, I have considered whether there should be some discount on the basis you have been addicted to methamphetamine in a way that could have affected your ability to make a rational decision when you chose to become involved in this offending.

[60]	In Zhang, the Court of Appeal accepted that non-causative addiction would be of little mitigatory relevance. The Court of Appeal accepted that commercial dealing is likely to be inconsistent with the impairment of the ability to exercise rational choice in a way that would diminish culpability and justify discounting the sentence. You were not involved in dealing but you were significantly involved in assisting in a substantial importation of methamphetamine which was clearly for commercial purposes. The Court of Appeal also accepted that any discount for addiction should be based on persuasive evidence as opposed to mere self-reporting. You have acknowledged to the report writer that you used methamphetamine on a daily basis and you have provided me with further information about that methamphetamine use, but there is no independent persuasive evidence that you were truly addicted to methamphetamine.

[61]	You were on EM bail for a period of 12 months before your trial. I will discount your sentence by six months to recognise that. That reduces the starting point sentence for the offending to 19 years and six months.

[62]	Because you defended these charges, you do not get the benefit of a discount for any guilty pleas. The pre-sentence report has however provided information that establishes you now fully acknowledge the criminality of your offending. That has also been reflected in the letter I have just read. You thus accept full responsibility for your actions and also the harm that could have resulted from what you did. You have demonstrated that in a tangible way. In the particular circumstances, and showing a degree of mercy that you have asked for, I am going to give you a credit for that remorse, discounting the starting point sentence I arrived at for your offending by 20 per cent. That will reduce your sentence for all the offending to 15 years and seven months.

[63]	Zhang has made it clear that there is no presumption of a minimum period of imprisonment in sentencing for importation of methamphetamine.7 A reasoned analysis is required as to why, in these particular circumstances, a minimum period is required. The Court of Appeal noted that deterrence, denunciation and accountability

7	Zhang v R, above n 1, at [169]-[174].

are likely to be at the forefront of this analysis and that, in turn, means that “as a general rule, lengthy minimum periods of imprisonment are properly reserved for cases involving significant commercial dealing”.8 However, “there are no presumptions, no rules of thumb”.9

[64]	I consider in this case it is significant that it was your work at DHL which enabled your offending. You breached the significant trust and power inherent in that role on multiple occasions, facilitating the importation of extremely significant amounts of methamphetamine. A minimum period of imprisonment is justified to sufficiently denounce and deter such offending. I will impose a minimum period of imprisonment of seven years and six months, which is a little less than 50 per cent of the end sentence.

Mr Cooper

[65]	I turn now to you Mr Cooper. You completed the importation documents to facilitate the importation of the Christchurch consignment containing 39.7 kg of methamphetamine. After Mr Seal collected a box from his father’s work, you picked it up. When the Police executed a search warrant at your house, you were seen trying to flush some of the contents. You and Mr Seal had been communicating on burner phones throughout the process of the importation and you pleaded guilty to importing methamphetamine.

[66]	You are 33 years old and work as a builder. You are friends with Mr Seal. In relation to the offending, the pre-sentence report records you saying you are “guilty of being naïve” and that you were taken advantage of. You asserted you had no reason to suspect the business dealings you were engaged in were illegal. You denied using methamphetamine yourself and refused to talk further about the offending.

[67]	A cultural report was also filed, which records your unstable, neglectful and abusive childhood. You no longer have any contact with your family. The report reiterates your claims of naivety relating to the offending, but states you are apologetic,

8	At [171].
9	At [174].

accept responsibility, and recognise the potential harm your offending could have had on the community. Your partner of three years appears to be a stabilising influence on you and is committed to supporting you throughout your custodial sentence. You have been making arrangements so she will be able to run her hairdressing business while you are in prison. You have a distinct interest in health and fitness and want to complete studies so you can become a personal trainer. And, I have been shown evidence that you have already made strides in that regard.

Crown submissions

[68]	The Crown submits that your role was more than a mere “catcher”, as you took a number of steps that were arguably pivotal to the success of the operation. Counsel submits your role was similar to the offender in R v Wan, albeit with a far larger quantity.10 As such, the Crown submits a starting point of between 17 and 18 years’ imprisonment would be appropriate.

[69]	You have five previous convictions, including serving a prison sentence of two years and three months for violent offending in 2008. However, given the lack of relevance to the current offending, no uplift is sought. The Crown says there are no mitigatory factors relating to you personally.

[70]	The Crown acknowledges you are eligible for a discount for your guilty plea, which it submits was entered earlier in the proceedings and reduced the length of trial. Counsel submits a discount of around 15 to 20 per cent may be warranted.

[71]	The Crown submitted that a minimum period of imprisonment might be justified but noted such terms are less commonly imposed in single instances of offending of this type.

Defence submissions

[72]	Your counsel, Mr Hall QC, submitted that there was no evidence suggesting you knew of the quantity of the drugs involved in the importation, or that you obtained any financial reward for your role. Mr Hall submits that you lived modestly and

10	R v Wan [2017] NZHC 2376.

continued working as a plasterer throughout the importation process, indicating you were not compensated for your role in the importation. He submits that your role was less than a “catcher”, contrasting your role with that of Mr Seal. He submits Mr Seal provided a “haven” for the methamphetamine consignment and was the person calling DHL to follow up on the delivery. You made no phone calls to DHL, nor did you direct Mr Seal to do so. You only had one box in your custody at the time the search warrants were executed.

[73]	Mr Hall, for you, did not accept the Crown’s factual summary that you “participated in the planning and documentation for the importation, and liaised regularly after its arrival, facilitating delivery and the duty and regulatory processes to get it released to their custody” as it was referred to in the summary. Mr Hall says the evidence is that you filled out the documentation to obtain a Trade Single Window Client Code from Customs and emailed that code to Mr Seal. Other than that, he suggested there was no evidence that indicates you assisted in the actual importation, rather that role was played by Mr Seal.

[74]	For those reasons, Mr Hall submits your culpability warrants a starting point in the region of 15 years’ imprisonment. He drew parallels with R v Agu, where a starting point of 16 years was upheld for a mere “catcher”, receiving importations totalling 33 kg over seven months.11

[75]	Mr Hall submits there should be a modest discount to reflect your remorse, upbringing and rehabilitative potential as demonstrated by the cultural report. He submits a discount of 20 per cent would be appropriate for the guilty plea. And, he submits a minimum period of imprisonment is unwarranted, given your acknowledgement of guilt and the lesser role you played.

Discussion

[76]	The summary of facts to which you pleaded guilty is skeletal. As foreshadowed by the Court of Appeal in Zhang, some inferences have to be drawn to assess your culpability. How much you knew about the details of the importation at

11	R v Agu, above n 5.

the start is unclear, but your behaviour after its delivery demonstrated your level of understanding at that point. Using burner phones, collecting a box and then attempting to flush its contents when Police arrived clearly indicates you knew you had collected illegal substances.

[77]	It seems likely that you did not play a leading role in the importation, but no one higher up has been identified. Your vague explanation for your involvement revolves around meeting a businessman at a bar who convinced you and Mr Seal to get involved in a business venture. The Police have not been able to verify that story.

[78]	Both you and Mr Seal became involved in this venture at the same point. You both give similar accounts as to how it started and how you were approached. As might be expected, where your explanations are likely not to be true, the information from each of you does not match up completely. Mr Seal provided a name for the person who you were supposedly going into business with. You did not.

[79]	There is no direct evidence that you were to receive any financial reward for your part. You do not admit to any methamphetamine use yourself. There is no evidence as to any pressure or coercion. You are not particularly vulnerable. It was a single importation. The role you played was necessary to facilitate the importation, but not sophisticated. I have not however been persuaded by Mr Hall’s attempt to distance your offending from Mr Seal’s.

[80]	With all these factors being taken into account, I consider your role to fall between lesser and significant, using the descriptions set out by the United Kingdom Sentencing Council and referred to by our Court of Appeal in Zhang.

[81]	I would consider your role to be more serious than that of just a “catcher”, given your involvement in the importation process and your collection of one of the boxes from Mr Seal. While what you planned to do with the contents of the box is unknown, I consider it significant that you took possession of it.

[82]	As might be expected, where the value of importation could be realised only through others distributing the drug, you were in the company of someone else when you collected the box from Mr Seal.

[83]	I am not able to sentence you on the basis that you had minimal knowledge as to the nature of the importation you assisted with, the quantity of the drugs involved or its potential value. You were not willing to talk to the report writer in any detail about the circumstances surrounding your offending. Your explanation for that was that your counsel was endeavouring to make changes to the summary of facts and you did not want to jeopardise this. I have received no further information which would suggest that explanation was the true reason.

[84]	Your explanation, that you met someone in a bar, began talking about business, that you had an interest in project management and that you saw this as an opportunity to get involved in some contracting work, does not indicate to me that you thought you were involved in some legitimate and legal business. The information in the pre- sentence report and cultural report indicates you would have made a rational decision to become involved in this importation with all the risks associated with that. Your friend, Mr Fraser, with whom you were working at the time of this offending and for whom you continued to work while subject to EM bail, described you as having a good business head on your shoulders and being a good decision maker. You described yourself to the probation officer as being strong-willed. To the probation officer, you said you were not a risk taker or a gambler.

[85]	All that suggests you would not have become involved with this importation naively, trusting in someone who you met in a bar and with little knowledge of the business you were getting involved in. Again, this indicates to me that you must have made a rational decision to become involved in this importation and that must have been because you stood to gain from it financially. Your motivation was not to obtain drugs for your own use.

[86]	You collected one of the boxes containing two packages of methamphetamine substitute concealed in the base of each lamp. You clearly expected the lamp to conceal methamphetamine. When the Police came to your address, you attempted to

flush the methamphetamine substitute down the toilet. On the summary of facts, you took possession of one box and a lamp containing what must have been 2.4 kgs of methamphetamine. It is submitted that you did not know the quantity of drugs involved in the importation but you had completed the import documents for an importation of 20 boxes of safety lamps, each one containing two packages of methamphetamine.

[87]	The summary of facts, which recorded the basis on which you pleaded guilty, states that both you and Mr Seal participated in the planning and documentation for the importation and liaised regularly after its arrival, facilitating its delivery and the duty and regulatory processes to get it released to your custody. I infer that you knew the importation related to 20 boxes each containing a lamp, and in that lamp concealed methamphetamine. You knew the importation was illegal, putting a false address on the importation application documents and using a different phone number. The contact details provided on importation documents associated with the delivery was for Mr Anthony Allwood. His address could not be established by the Police. You were communicating with Mr Seal using burner phones purchased specifically for the importation. With the guilty plea, you acknowledged you knew you were involved in the importation of a class A drug.

[88]	A starting point of 16 years’ imprisonment is appropriate. This starting point is adopted on the basis that your offending is similar to Mr Zhang’s but increased by one year to reflect the much more significant quantity involved.12 It is also consistent with the Court of Appeal’s decision in Agu, which involved a more vulnerable defendant but offending over a longer period of time.13 I consider Wan to involve more serious offending in that the defendant travelled to New Zealand and leased out an office for the purpose of facilitating the importation.14

[89]	The cultural report provided to the Court refers to unfortunate aspects of your family background. There is however nothing in the report to indicate this background reduced your capacity to make rational decisions about whether you would involve

12	Zhang v R, above n 1.
13	R v Agu, above n 5.
14	R v Wan, above n 10.

yourself in the importation. I cannot take that background further into account as a mitigating circumstance relating to you personally.

[90]	You did spend 15 months on electronically monitored bail. I allow a discount of seven months for that, reducing the starting point sentence to 15 years and five months.

[91]	You pleaded guilty to this charge on 29 April 2019. The Crown did not offer evidence on a further charge of possession of methamphetamine for supply. You had first been charged with the offending on 15 November 2017. In pleading guilty, you accepted responsibility for your involvement and did what you could to avoid the burden and costs to the state of a trial.

[92]	I allow a discount of 20 per cent for your guilty plea. That will result in a final sentence of 12 years and four months’ imprisonment.

[93]	The pre-sentence report says you are sorry you made a decision that could have had a negative effect on the community. But, as the pre-sentence report says, there is little to suggest that you take responsibility for your actions or that you accept you intended to import methamphetamine. There can be no credit for remorse.

[94]	Given this was a one-off importation, where you did not play a leading role, I do not consider a minimum period of imprisonment is necessary.

Mr Seal

[95]	Mr Seal, you contacted DHL enquiring about the consignment which contained
39.7 kg of methamphetamine and gave further details for its delivery to your father’s business address. You coordinated payment of the duty and GST and provided account details for the costs to be charged to. After the delivery, you picked up one of the boxes, which Mr Cooper collected from you. You and Mr Cooper had been communicating on burner phones throughout the process of the importation. You pleaded guilty to a charge of importing methamphetamine.

[96]	You are 27 years old. You are friends with Mr Cooper. The pre-sentence report records you, like Mr Cooper, saying you were “guilty of being naïve, guilty of making dumb decisions, but not of knowingly importing drugs”. That last statement is inconsistent with your guilty plea.

[97]	Your father has written a letter in support of you. He refers to your foolishness, recklessness and naivety in getting involved in the importation, but says you have responded with maturity to the situation you have found yourself in. Your father is clearly proud of how you conducted yourself since your arrest.

[98]	The Court has also been provided with material from the Christchurch City Mission, where you sought help for alcohol and drug abuse both before and after your arrest. You attended counselling and were recorded as being polite, respectful and insightful regarding your substance abuse. You expressed remorse about your substance abuse and a determination to engage in behaviour change. You are recorded as having a lack of control with cannabis, alcohol and occasional methamphetamine use but describe cocaine and MDMA as the drugs you mainly use. Your mental health screening at the City Mission from April 2018 recorded that you often felt anxious and depressed.

[99]	Your counsel also provided file notes from your time in custody. They describe you as compliant and well liked in your group. You have not been associating with gangs and remain patient and level headed when things do not go your way. You have a positive attitude and are eager to start your rehabilitation and reintegration programmes.

Crown submissions

[100]	For the same reasons as in its submissions for Mr Cooper, the Crown submits that your role was more than a mere “catcher”, as you took a number of steps that were arguably pivotal to the success of the operation. You made logistical arrangements and facilitated the delivery of the consignment. Counsel submits your role was similar to the offender in Wan, albeit with a far larger quantity.15 As such, as you heard, the

15	R v Wan, above n 10.

Crown submitted a starting point of between 17 and 18 years’ imprisonment would be appropriate.

[101]	You have previous convictions, including for cannabis offending, but the Crown does not seek an uplift.

[102]	The Crown acknowledges you are eligible for a discount for your guilty plea. Counsel submits a discount of around 15 to 20 per cent may be warranted.

[103]	The Crown submits that a minimum period of imprisonment might be justified but notes that they are less commonly imposed in single instances of offending of this type.

Defence submissions

[104]	Through your counsel, your explanation for your involvement is that you were approached by a man near a bar who wanted to engage you as a contractor to assist in the building of a carpark. You had long wanted to go out on your own in business and approached Mr Cooper to be your business partner. You say you were asked to assist in importing the light fittings for the carpark. You say that, at some stage, you became aware there was something dodgy about the transaction but were wilfully blind and decided to carry on in the hope it would kickstart your business. You say you had no knowledge of the methamphetamine or the quantity but that you definitely knew something was wrong when, the day the consignment was delivered, you received a call from an unknown person telling you that the phones being used should be “cooked”. Again, the Police have not been able to confirm either of these stories or identify the businessman you say you met and whose name was on the documents associated with the address of Sealing Solutions, the address to which the consignment was to be delivered.

[105]	Your counsel, Mr Hembrow, submitted that your role was relatively limited. He suggests that all you did was provided an address for storage of the consignment and made phone calls enquiring as to its delivery. Mr Hembrow submits these were not crucial steps and show no particular sophistication. Counsel submits the quantity

should not be given great weight because neither you nor Mr Cooper knew about the amounts involved.

[106]	As such, Mr Hembrow submitted that an appropriate starting point would be between 10 and 12 years’ imprisonment. In terms of mitigating features, Mr Hembrow highlighted the positive comments from the City Mission and your prison file notes, along with your remorse and the 15 months you spent on electronically monitored bail.

[107]	He further submitted that a discount of 20 per cent for your guilty plea would be appropriate and that a minimum period of imprisonment is not necessary.

Discussion

[108]	Much of the discussion as to setting a starting point for Mr Cooper is relevant to you Mr Seal. I consider both you and Mr Cooper played similar roles in the importation. You were clearly working in tandem and have a similar level of culpability. You played an important role in facilitating the importation but it was unsophisticated. There is no direct evidence as to whether you received any payment or were going to receive any payment for your role but the only inference I can draw is that you must have decided the potential for a significant financial gain justified the risk you took in allowing and facilitating the importation to the address of your father’s business.

[109]	I do not consider that your involvement began with your thinking you were going to be involved in the building of a carpark. I note the information you gave, as to the name of the person who approached you and the circumstances, is not on all fours with the information provided by Mr Cooper. I note that the Police have not been able to identify any real person called Mr Allwood. I do not accept that you had no idea as to the quantity of methamphetamine involved in the importation although, like Mr Cooper, you may not have known the precise amount that was being imported. You did though take control of 20 boxes, each containing a lamp with two packets of methamphetamine hidden in the base of each lamp. That was the importation you must have known was to be delivered to your father’s address.

[110]	You say you only became aware you were involved in something dodgy when you were told the phones that you were using had to be “cooked” but you had already purchased and were using burner phones in communicating with Mr Cooper before the consignment was delivered.

[111]	I consider it likely that you became involved consciously deciding it would be a way of making money out of what you were doing. Consistent with that, the pre- sentence report indicates that you had issues around money and finances, that you were hopeful of achieving business success with Mr Cooper and you placed a significant value on financial success as being paramount to happiness and proof of achievement. The potential for you to realise those ambitions through some involvement in commercial drug dealing was increased through your regular use of other illicit drugs.

[112]	I acknowledge the positive steps you took to deal with your drug and alcohol use before you became involved in this offending and the positive way you have responded to the predicament you face since being charged with this offending. Given the seriousness of this offending, the emphasis on deterrence and holding you accountable for your actions, there is little scope for a discount on your sentence because of such matters. That is consistent with what the Court of Appeal had to say in Zhang.

[113]	For the same reasons as discussed with regards to Mr Cooper, I set a starting point of 16 years’ imprisonment.

[114]	The 15 months you spent on electronically monitored bail warrants a discount of seven months, as it did for Mr Cooper. Like him, you are entitled to a discount of 20 per cent for your guilty pleas.

[115]	The pre-sentence report says you deny any illegal intent in relation to the offending, instead attributing it to naivety and poor decision making. There can be no credit for remorse.

[116]	As with Mr Cooper, your final sentence is thus going to be 12 years and four months’ imprisonment.

[117]	For the same reasons as Mr Cooper, a minimum period of imprisonment is not appropriate.

[118]	It will be apparent to all three of you that you are facing a lengthy term of imprisonment, but I have received information which indicates all three of you are capable of making what you can of that situation. You are all young enough to make something of your lives after you are released from prison and, in some way, compensate for the offending that you became involved in with these importations. And, that is what the community would want to see from each of you.

Conclusion

[119]	Mr Vea, Mr Cooper and Mr Seal, please stand.

[120]	Mr Vea, on the charge of importing methamphetamine on 6 November 2017 at Christchurch, you are sentenced to imprisonment for 15 years and seven months, with a minimum term of imprisonment of seven years and six months. On each of the other two charges, you are sentenced to 12 years’ imprisonment. All three sentences are to be concurrent.

[121]	Your effective sentence of imprisonment is thus 15 years and seven months with a minimum term of imprisonment of seven years and six months.

[122]	Mr Cooper, on the one charge of importation of methamphetamine, to which you pleaded guilty, you are sentenced to imprisonment for 12 years and four months.

[123]	Mr Seal, on the one charge of importation of methamphetamine, to which you pleaded guilty, you are sentenced to imprisonment for 12 years and four months.

Solicitors:
Raymond Donnelly & Co., Christchurch PHB Hall QC, Barrister, Christchurch
S Hembrow, Barrister, Christchurch
P Johnson, Public Defence Service, Christchurch.