FARSHAD ESFEHANI-BAHADORI v R [2023] NZCA 146

FARSHAD ESFEHANI-BAHADORI v R [2023] NZCA 146 [9 May 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA379/2022[2023] NZCA 146BETWEEN FARSHAD ESFEHANI-BAHADORIAppellantAND THE KINGRespondentCA470/2022BETWEEN JALAL ASMATULLAH SAFIAppellantAND THE KINGRespondentHearing: 28 March 2023Court: French, Dunningham and Cull JJCounsel: T M Cooper KC and O Kazmierow for Mr Esfehani-BahadoriM J Taylor-Cyphers for Mr SafiJ V Barry for RespondentJudgment: 9 May 2023 at 2.15 pmJUDGMENT OF THE COURTA Mr Esfehani-Bahadori's appeal is dismissed.B Mr Safi's appeal is allowed.C Mr Safi's sentence of 11 years' imprisonment is quashed and is substitutedwith a sentence of 9 years and six months' imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Dunningham J)Introduction[1] The appellants were both convicted following a police investigation,codenamed Operation Maddale, into a significant methamphetamine distributionsyndicate run out of an Auckland car yard.[2] Mr Esfehani-Bahadori was sentenced by Judge Muir in the District Court atAuckland to five years and six months' imprisonment on three counts of possession ofmethamphetamine for supply.1[3] Mr Safi was sentenced by Judge Gibson in the District Court at Auckland to11 years' imprisonment on two charges of possession of methamphetamine for supplyand one of money laundering arising out of the same operation, as well as subsequentcharges which arose from offending when he was on electronically-monitored (EM)bail for the methamphetamine offending.2 These included a further possession ofmethamphetamine for supply charge, two firearms charges, a charge of dangerousdriving, and a charge of operating a vehicle in a race.[4] Both men appeal their sentences on the grounds they were manifestlyexcessive.[5] Mr Esfehani-Bahadori says:(a) the Judge adopted a starting point which was too high; and(b) he received insufficient credit for mitigating factors, including for s 27factors and his relative youth.[6] Mr Safi says:(a) the Judge adopted a starting point which was too high;1 R v Esfehani-Bahadori [2022] NZDC 14540 at [30].2 R v Safi [2022] NZDC 16499 at [32].(b) inadequate discounts were given in respect of personal factors,including addiction; and(c) the end sentence offends the principles of totality and parity.Facts of the offendingMr Esfehani-Bahadori[7] During the Operation Maddale investigation, the police found that significantquantities of methamphetamine were being distributed from commercial premisesoperating as a car sales yard on Bentinck Street in Auckland. Through the use ofcovert surveillance, Mr Esfehani-Bahadori was seen making three trips to this address,each time with Mr Slaimankhel and other associates, where they purchasedcommercial quantities of methamphetamine for cash. The quantities ofmethamphetamine transacted on each occasion were:(a) 15 November 2018: one to two kilograms. Mr Safi was also involvedin this transaction.(b) 4 December 2018: at least one kilogram.(c) 17 December 2018: at least half a kilogram.[8] In all, Mr Esfehani-Bahadori was convicted for being in possession of at least2.5 kilograms of methamphetamine for supply.Mr Safi[9] In Mr Safi's case, his offending involved two trips to Bentinck Street, eachtime with Mr Slaimankhel and an associate, to purchase commercial quantities ofmethamphetamine for cash. The quantities transacted on each occasion were:(a) 15 November 2018: one to two kilograms. Mr Esfehani-Bahadori wasalso involved in this transaction.(b) 11 March 2019: at least one kilogram.[10] In all, Mr Safi was convicted for being in possession of at least two kilogramsof methamphetamine for supply.[11] On 6 July 2019, Mr Safi was also found in possession of $230,000 in cashwhen travelling from Dunedin to Auckland. The cash was the proceeds of distributingmethamphetamine, and he intended to engage in a money laundering transaction withthose funds.[12] Mr Safi's subsequent offending occurred while he was on EM bail for themethamphetamine offending. On 19 May 2022, police executed a search warrant athis home address. They found a combined total of 27.7 grams of methamphetamine,$2,000 in cash, digital weighing scales and unused point bags, a 12-gauge shotgun,five 12-gauge shotgun rounds and 79 rounds of .22 firearm ammunition.[13] In a separate incident, on 27 August 2021, he was charged with two drivingoffences as a result of driving at speeds of up to 120 kmph in a 50 kmph area, failingto comply with road signs, including a stop sign, driving on the wrong side of the roadand overtaking vehicles at high speed.Mr Esfehani-Bahadori's appealSentencing of Mr Esfehani-Bahadori[14] Judge Muir began by describing Mr Esfehani-Bahadori's role, noting he was amember of the Comancheros gang and was "performing the role of a courier but [hewas] doing so as a member of a gang knowing full well the criminal activity that [hewas] undertaking and the likely impact of that activity".3 He did not describe his rolein Zhang v R terms,4 though he did refer to submissions which described him as being3 Esfehani-Bahadori, above n 1, at [3].4 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648, which, at [115], described the role of offendersas falling into one of three categories, being "lesser", "significant" and "leading".both at the lower and upper end of the lesser role.5 Instead, he said "your involvementwas extensive even though the quantities involved were small".6[15] In setting the starting point, Judge Muir placed Mr Esfehani-Bahadori at thebottom of band five, being the band identified in Zhang v R for offending involvingtwo or more kilograms of methamphetamine.7 He also noted that an aggravating factorwas that Mr Esfehani-Bahadori had committed the offending while on bail in relationto other charges.8 He then cross-referenced the proposed starting point of 10 yearswith that for a co-offender, Mr Yousef, whose offending involved 11.5 kilograms ofmethamphetamine and where a starting point of 12 years was adopted.9[16] After adopting a starting point of 10 years, the Judge allowed a 20 per centreduction to take account of his guilty plea.10 He allowed a further 15 per cent formatters raised in his s 27 report, describing them as "compelling".11 He also alloweda five per cent discount for remorse and a further five per cent for totality.12 The endsentence was five years and six months' imprisonment.13Was the starting point too high?[17] While Ms Cooper KC acknowledges that, based on quantity,Mr Esfehani-Bahadori's offending falls at the lower end of band five in Zhang, shesubmits his role, along with considerations of parity, should have seen his startingpoint below the 10 year point at which band five starts. Ms Cooper submits that hemet many of the criteria for having a lesser role in that he:(a) performed a limited function under direction;(b) was paid in cash that was significantly disproportionate to the sheerquantity of drugs and risk involved;5 Esfehani-Bahadori, above n 1, at [18] and [21].6 At [26].7 At [26].8 At [27].9 At [26]; and R v Yousef [2022] NZDC 3359.10 Esfehani-Bahadori, above n 1, at [29].11 At [29].12 At [29].13 At [29].(c) had no influence on those above him in the chain; and(d) had little awareness or understanding of the significant scale of theoperation.[18] She points out that a defendant need not fulfil all the criteria which areindicative of a lesser role in Zhang, accepting that in this case, there is no evidence ofan addiction to drugs. In terms of comparing his role with others, she saystwo co-defendants, Mr James and Mr Worsley, were principal offenders, whereasMr Esfehani-Bahadori and other younger gang members were lower in the chain.Furthermore, Mr Esfehani-Bahadori was not an active participant in thethree transactions but was simply assisting Mr Slaimankhel, who was more senior andwho played an active role in the exchanges. She describes Mr Esfehani-Bahadori'srole as simply "to be present" and to act as the "muscle" for Mr Slaimankhel.[19] Ms Cooper points out that Mr Slaimankhel's role in the operation wasdetermined to be at the "high end of significant", and the charges he faced involvedapproximately six kilograms of methamphetamine, yet his starting point was onlythree years higher at 13 years' imprisonment.14 Mr Yousef's role was somewhatsimilar to the appellant's but he was directly charged with care of a significant amountof methamphetamine at his home address, with the total methamphetamine involvedin his charges being 11.5 kilograms, and yet his starting point was only two yearsgreater at 12 years' imprisonment. Ms Cooper says even Mr Safi's role which, on theface of it, was somewhat similar to the appellant's, can be distinguished because hewas entrusted with a large amount of money on behalf of the wider operation, and astarting point of 10 and a half years was imposed, which is only six months higherthan the starting point for the appellant. When comparing Mr Esfehani-Bahadori'soffending with the offending of those three co-offenders, Ms Cooper submits hisstarting point does not "adequately reflect the true spectrum of the offending betweenthese four offenders".[20] Ms Cooper emphasises that Zhang endorses a flexible approach to sentencingto ensure culpability is adequately reflected and notes that two other co-defendants,14 R v Slaimankhel [2022] NZDC 14076 at [3]–[5].Ms Chalmers and Ms Hayman, received starting points that were lower than theminimum prison sentence for their respective bands.15 Given Mr Esfehani-Bahadorifalls at the lower end of band five purely on the basis of quantum, his starting pointshould be reduced even further to fairly reflect his limited culpability, particularlywhen compared to the culpability of his co-defendants. The starting point should, inMs Cooper's submission, be around nine years' imprisonment.Discussion[21] In Zhang, the sentencing bands in R v Fatu were revisited and adjusted toprovide lower starting points for bands one to four.16 The Court of Appeal observedthat: 17 although the new entry points [for each band] are intended to encompassmost cases of low culpability in setting a starting point, we do not exclude thepossibility of a case involving minimal participation which might fall beloweven these entry points.[22] In Berkland v R, the Supreme Court gave further guidance on theimplementation of the new Zhang framework.18 The Court reiterated that the role ofthe offender was a "fundamental component of the gravity and culpabilityassessment".19 The Court went on to explain that role could:20 drive movements both within and between the quantum driven bands. Inother words, there is no reason in principle why role cannot be even moreimpactful than quantum, if justified in the circumstances. This may well bethe case, for example, if the circumstances demonstrate that, irrespective ofquantum, the offender's role in relation to it falls within the lower end of'lesser'.(footnote omitted)[23] In the present case, we are unpersuaded that Mr Esfehani-Bahadori's role is solimited that it warrants setting the starting point in a lower band than band five. In theDistrict Court, the Judge appeared to accept submissions that his role should bedescribed as lesser, though he did not state where on the spectrum15 Zhang, above n 4, at [10]; R v Chalmers [2022] NZDC 6620; and R v Hayman [2021] NZHC 642.16 R v Fatu [2006] 2 NZLR 72 (CA).17 Zhang, above n 4, at [123].18 Berkland v R [2022] NZSC 143.19 At [63].20 At [64].Mr Esfehani-Bahadori lay. We put little weight on the Judge's description of his roleas "extensive" but involving small amounts, as both statements are inconsistent withthe summary of facts, which describe a lesser role in the production of two kilogramsof methamphetamine which is a substantial quantity.21[24] In our view, Mr Esfehani-Bahadori's role had some of the indicia of being alesser role, but there was no suggestion that his culpability was reduced by factorssuch as a drug addiction or coercion from an overbearing and violent partner.22 Rather,we are satisfied that Mr Esfehani-Bahadori was willing to play his part as a memberof the Comancheros gang noting, in his pre-sentence report, that he said he was "proudof his membership", and he ended the interview stating, "Comanchero forever". Thisis not a case where he was paid in drugs to feed his own addiction, and there appearsto be at least some financial motivation for offending, with his disclosing that hebecame involved "to provide for himself and his mother" and telling the pre-sentencereport writer that his activities "were simply for financial gain". It is reasonable toassume he had at least some awareness or understanding of the scale of the operationgiven his three visits to its headquarters and his association with other gang memberswho were involved in it. Thus, while we accept his offending falls within the lesserrole, there are no factors present which would limit his culpability to the extent heshould be sentenced in a lower band. In our view, the Judge appropriately placed himat the bottom of band five having regard to both the quantity of drugs involved and therole he played in the operation.[25] We do not think any further adjustment is required having regard to the startingpoints taken for his co-offenders. The Judge was careful to place his starting pointlower than those who were more culpable than him, and this was sufficient torecognise the principle of parity.[26] This ground of appeal is dismissed.21 Esfehani-Bahadori, above n 1, at [26].22 For example, in Zhang, Ms Phillips' low starting point was endorsed on appeal as reflecting her"very limited" role and the fact she accompanied her partner on drug deals "out of a sense ofloyalty". She was also addicted to methamphetamine. Similarly, Ms Crighton's sentence tookinto account that she supplied her partner with methamphetamine to "prevent any violence".Did Mr Esfehani-Bahadori receive sufficient credit for mitigating factors?[27] The second ground of appeal is that Mr Esfehani-Bahadori did not receivesufficient credit for mitigating factors, particularly when compared with the creditafforded to his co-offenders. In that regard, Ms Cooper referred to the sentencing forMr Slaimankhel where, although not specified, it appears the discount he received forpersonal circumstances may have been at least 20 per cent. Mr Yousef received a15 per cent discount for a cultural report which did not strongly point to backgroundfactors being causative of his offending.23 That is in contrast to the Judge describingMr Esfehani-Bahadori's cultural report as "compelling" and yet only allowing adiscount of 15 per cent.24[28] Ms Cooper argues that the respective discounts afforded "engages an issue ofparity", saying Mr Yousef should not receive the same discount asMr Esfehani-Bahadori when there are no exceptional mitigating factors indicatingwhy this approach is taken. Ms Cooper also notes that while Mr Esfehani-Bahadoriwas relatively young at the time, being 21 years old, there was no discount providedfor this. She submits a discount of greater than 15 per cent and up to 30 per cent oughtto have been applied for s 27 factors and the appellant's relative youth.Discussion[29] Mr Esfehani-Bahadori's s 27 report explains that he was raised by a singlemother who was a refugee from Iran. As a consequence, his childhood was definedby hardship, limited social supports, and the experience of racism and discriminationbased on his family's cultural identity. The financial hardship his family sufferedduring his childhood was his motivation to succeed financially, and that ambition toachieve financial success was the "single most causative factor in his offending". Thereport recorded that Mr Esfehani-Bahadori was not a drug user but had been a heavydrinker in the past. It also said that he had found brotherhood and community throughhis involvement with the gangs, and his recent offending was "inextricably linked withhis gang affiliations".23 Yousef, above n 9, at [46].24 Esfehani-Bahadori, above n 1, at [29].[30] We accept the conclusions in the s 27 report at face value. However, it servedto emphasise that his primary motivation for the offending was financial. He was notsuffering from an addiction, nor did he want to disassociate himself from the gangwhich drove this offending. While, as the Judge acknowledges, his background doesexplain how he came to offend, we cannot say the discount afforded was in error.Indeed, it strikes us as generously recognising the background factors which led toMr Esfehani-Bahadori offending. By way of comparison, in Berkland, the appellantreceived a 10 per cent discount for a s 27 report which revealed an upbringing markedby violence, sexual abuse and poverty.25 Mr Berkland left school functionally illiterateand joined the Mongrel Mob.26 He began abusing drugs and alcohol from childhoodand developed an addiction to methamphetamine later in life which drove hisoffending.27 While parallels are not easy to draw, we cannot say a 15 per cent discountto recognise the factors which drove Mr Esfehani-Bahadori's offending was clearlywrong.[31] We also note that to the extent Ms Cooper says Mr Esfehani-Bahadori's youthshould be taken into account, the Judge did acknowledge that.28 While a separatediscount was not given for youth, we consider it is fairly reflected in the relativelygenerous discounts which were given for s 27 factors, remorse, and totality,particularly when Mr Esfehani-Bahadori's remorse was in question and there was noobvious reason to reduce the sentence for totality.[32] Finally, we note there is little to be gained by comparing the discounts affordedto Mr Esfehani-Bahadori's co-offenders with those afforded to him. As was said bythis Court in Walker-Dahlberg v R: "Parity has to be assessed by a comparison, not ofthe end sentence, but of the starting points for the offending."29[33] The end sentence of five years and six months' imprisonment was clearly notexcessive, and this ground of appeal is dismissed.25 Berkland, above n 18, at [16] and [162].26 At [154]–[155].27 At [157].28 At [28].29 Walker-Dahlberg v R [2020] NZCA 661 at [54].Mr Safi's appealSentencing of Mr Safi[34] When sentencing Mr Safi, Judge Gibson identified the main offending as theinitial possession for supply and money laundering charges.30 Based on the quantityof methamphetamine involved, he considered Mr Safi fell within band five ofZhang v R.31[35] The Judge then turned to Mr Safi's role, accepting that he was not likely aperson of "major influence in the drug ring" but concluding he was "operatingeffectively as a foot soldier" for the Comancheros gang distributing themethamphetamine.32 However, he observed that Mr Safi was "trusted", given hisresponsibility for carrying a large sum of money to Dunedin, and he concluded "youknew exactly what was happening, and you knew you were participating in criminalactivity of a very serious nature".33 Furthermore, he considered Mr Safi was willingto participate in the drug trade "for commercial and financial reasons".34 In terms ofthe Zhang categorisation of role, the Judge considered Mr Safi was "at the upper endof lesser, and at the bottom of the significant band".35[36] The Judge then took into account parity in sentencing by reference to thestarting points adopted for the co-offenders who had already been sentenced. Heobserved that:36(a) Mr Esfehani-Bahadori's role was taken to be at the upper end of thelesser band, but there was no money laundering charge, and a startingpoint of 10 years' imprisonment had been taken for his offending;(b) the starting point for Mr Yousef was 12 years' imprisonment (which hedescribed as "generous"), but he had 11.5 kilograms of30 Safi, above n 2, at [9].31 At [9].32 At [10].33 At [10] and [11].34 At [11].35 At [12].36 At [13].methamphetamine with him, and that put him squarely in band five ofZhang; and(c) Ms Hayman was sentenced based on a six year starting point, althoughhe accepted the Crown's submission that that was "somewhat lenient".[37] The Judge settled on a starting point of 10 and a half years' imprisonment.37[38] He then gave a 20 per cent discount for Mr Safi's guilty plea, noting it was notoffered at the first opportunity.38[39] The Judge doubted Mr Safi's claimed remorse, noting his ongoing offendingwhile on bail.39 He held that Mr Safi was not remorseful to the extent that wouldwarrant an additional discount over and above the discount for remorse inherent in hisguilty plea.40[40] The Judge then referred to the s 27 report and observed: "In contrast to a greatnumber of offenders who come before the Court, you had a good and stable familyupbringing."41 It was only when Mr Safi returned from a period living in Australiathat "you managed to criminalise yourself and become involved with theComancheros".42 Despite references being supplied, the Judge did not accept Mr Safiwas a person of good character, saying his previous history and his offending on bailcontradicted that assertion.43 He concluded:44I will not give you a discount for the matters raised in the cultural report simplybecause I am satisfied that there is no causal nexus to the offending. therewas nothing in your background that suggests to me that your offending couldbe shown to be attached to it.37 At [14].38 At [15].39 At [17].40 At [17].41 At [19].42 At [20].43 At [21].44 At [22].On the Judge's calculation, that brought the sentence for the initial methamphetamineoffending and money laundering to eight years and four months' imprisonment.45[41] In respect of the subsequent offending, the Judge considered the possession ofmethamphetamine for supply should be placed towards the bottom of band two andthen uplifted for the firearms offending.46 He took a starting point of two years for thesupply of methamphetamine and uplifted that by 18 months for the firearmsoffending.47 He did not uplift for the separate driving offences, nor for previousconvictions or the fact the offending occurred while on bail, citing the need to haveregard to totality.48 He then allowed a 25 per cent discount for guilty pleas on thosecharges, resulting in an end sentence of two years and eight months' imprisonment.49Added to the sentence for the first tranche of offending, that gave an end sentence of11 years' imprisonment. He then stood back and considered the end sentence andconcluded it reflected the totality of offending overall.50Was the starting point too high?[42] Ms Taylor-Cyphers submits the quantity of methamphetamine involved(two kilograms) placed Mr Safi at the bottom of band five (potentially even betweenbands four and five), and there was no proper basis to uplift the starting point to 10 anda half years.[43] Specifically, Ms Taylor-Cyphers argues that Mr Safi clearly was in a lesserrole. In respect of the first transaction, she says Mr Safi and Mr Esfehani-Bahadoriwere essentially along for the ride, and their culpability arose from their mere presencewhile the transaction took place. She acknowledges that, in the second transaction,Mr Safi was carrying the bag which was said to contain at least one kilogram ofmethamphetamine, but he did so with Mr Safi and Mr Yousef, and there is nosuggestion that his role was elevated in this transaction.45 At [23]; although noting that was generous as deducting the 20 per cent guilty plea discountresulted in a sentence of just under eight years five months.46 At [30] and [31].47 At [30] and [31].48 At [31].49 At [32]; although noting this rounded up slightly from the two year seven and a half monthsentence which results from this discount.50 At [33].[44] Given his limited role, Ms Taylor-Cyphers also argues that parity of sentencewith co-offenders encourages a lower starting point, referring in particular toMr Yousef's starting point of 12 years' imprisonment for being in possession of11.5 kilograms of methamphetamine. She also points to the end sentenceMr Slaimankhel received which, after discounts, was only six years' imprisonment,almost half of what Mr Safi received.[45] Finally, she submits that a global starting point on all offending, including thelater offending, of ten years' imprisonment would be appropriate. While sheacknowledges 10 years' imprisonment is at the very bottom of band five,Ms Taylor-Cyphers sees this as fairly reflecting the fact that, on the primary offending,she considers he should be placed in band four. A global starting point at the bottomof band five is therefore appropriate to reflect the further, less serious offences.Discussion[46] As discussed above in respect of Mr Esfehani-Bahadori's sentencing, the bandsin Zhang are intended to accommodate the range of roles in most cases, althoughacknowledging that in certain circumstances, someone playing a lesser role couldattract a starting point below the sentencing bands. However, the submissions forMr Safi ignore the charge of attempted money laundering which clearly elevates hisculpability and distinguishes his role from that of Mr Esfehani-Bahadori. It suggestsMr Safi had more direct knowledge of the enterprise that he was assisting and of thescale of the operation. As was said in R v Wallace:51those who launder money for drug dealers are nearly as culpable as thosewho actually participate in the dealing. They help the dealers avoid detectionand in this way provide assistance in their activity. Sentences for moneylaundering should therefore bear a relationship to sentences for the particularprincipal offending and should be approached on a similar basis. The moreserious the principal offending, the more serious the laundering.[47] In our view, the money laundering charge supports the District Court Judge'sview that Mr Safi's role was at the upper end of lesser. There was ample justificationfor selecting a starting point that was a little above the bottom of band five.51 R v Wallace CA415/98, 16 December 1998 at 8–9.[48] While we acknowledge Ms Taylor-Cyphers' submission that the subsequentmethamphetamine dealing could have been reflected in the starting point adopted, wedo not consider the Judge was wrong to deal with it separately, subject, of course, toconsiderations of totality which we address further on.[49] The next issue is whether the starting point for the subsequent offending wastoo high. In that regard, the Judge adopted a starting point of two years' imprisonmentfor the separate methamphetamine offending and a further 18 months for the firearmsoffending.[50] The respondent acknowledges this led to a combined starting point of 14 years'imprisonment, which counsel describes as "stern". We agree. Notwithstanding thatthe Judge did not uplift for Mr Safi's driving charges, or for the fact the offendingoccurred while he was on bail, we consider the effective starting point of 14 years'imprisonment was too high having regard to both totality and parity. Had thepossession of the additional 27 grams of methamphetamine been included in thequantity used for setting which band Mr Safi fell in, it would have made minimaldifference to the starting point. While the other offending was egregious, particularlythe possession of the firearm and the fact it occurred while on bail, we cannot see,having regard to considerations of totality and parity, that it was more significantoffending than, say, Mr Slaimankhel's offending which attracted a starting point of13 years, or Mr Yousef's, which attracted a starting point of 12 years. In our view, an18 month uplift to reach a 12 year starting point for the totality of the offending wouldhave fairly reflected his relative culpability.[51] Accordingly, the appeal is allowed and the sentence is to be calculated adoptinga 12 year starting point for the totality of the offending.Did Mr Safi receive sufficient credit for mitigating factors?[52] Mr Safi seeks an additional 15 per cent discount for personal factors includingaddiction. Ms Taylor-Cyphers submits that both Mr Yousef and Mr Esfehani-Bahadoriwere afforded a 15 per cent discount for s 27 factors, and Mr Safi should receive atleast the same discount given the evidence in the s 27 report of his drug and gamblingaddictions. Ms Taylor-Cyphers argues that, although the addiction is self-reported,there is a sufficient basis for holding that addiction was a cause of his offending. Shealso points to other factors in the cultural report including the distance from hisparent's place of birth, Afghanistan, his periods of homelessness, and the questionsraised over his mental health. In combination, she submits these factors warrant adiscount of 15 per cent.Discussion[53] We accept the respondent's submissions that there are difficulties in placingweight on the self-reported addictions in this particular case given the inconsistenciesin what Mr Safi has told the s 27 report writer and pre-sentence report writer withregard to drug use and criminal affiliations.[54] In the s 27 report, Mr Safi appears to have had a relatively stable background,being brought up by a stay-at-home mother and working father. Mr Safi wasencouraged to pursue an education and, while his father was not an affectionate man,Mr Safi said his relationship with him was "manly and rock solid". Mr Safi was brightand commenced tertiary education at Unitec, but then dropped out. However, he wasthen able to run a business trading cars and car parts.[55] In terms of addiction, Mr Safi explains he does not consume alcohol but has ahistory of using illicit drugs, particularly when he was involved in the clubbing scenein Melbourne. However, it appears he has been able to stop taking drugs since meetinghis wife in November 2021, without any difficulty. He also explains that he becameinvolved in offending because "he did not want to be perceived as using [his peers] toaccess drugs".[56] The report clearly identifies use of drugs, but the description of Mr Safi havinga drug addiction appears to be the assessment of the report writer and largely relatesto his time in Melbourne. There is no clear evidence that drug addiction prompted theoffending for which he was charged, and his ready ability to stop using drugs in 2021speaks against an addiction. Similarly, there is nothing to suggest his gambling drovehis offending.[57] The evidence of any mental health issues is also lacking. The s 27 report writerconfirms he has not been diagnosed with any psychiatric disorders but "may" havehad ADHD when he was a child. This is insufficient evidence to suggest there is amental health issue which is connected with his offending. Similarly, his period ofhomelessness was explained as a "choice", with him choosing a "transient lifestyle,living in motels and friends' houses until he found a place for himself." Again, thereis no connection identified between this and his offending. For these reasons we arenot satisfied the Judge was wrong when he concluded there was no causal connectionbetween Mr Safi's background and his offending.[58] Standing back, applying a 20 per cent guilty plea discount to the 10 years andsix month starting point, a sentence of eight years five months is reached. Applyingthe 25 per cent discount to the 18 month uplift, a sentence of 13 months and two weeks'imprisonment is reached. Totalling those, and rounding down, results in an endsentence of nine years and six months' imprisonment.Result[59] The appeal is allowed. The sentence of 11 years' imprisonment is quashed. Inits place, a sentence of nine years and six months' imprisonment is imposed.Solicitors:Crown Solicitor, Auckland for Respondent