LANDREIN v R [2018] NZHC 2511

LANDREIN v R [2018] NZHC 2511 [25 September 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-132[2018] NZHC 2511BETWEEN MICHEL LANDREINAppellantAND THE QUEENRespondentHearing: 6 August 2018Appearances: C J Tennet for AppellantC D Piho for RespondentJudgment: 25 September 2018JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 25 September 2018 at 3:00 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Kayes Fletcher Walker, AucklandIntroduction[1] Michel Landrein pleaded guilty to one charge of importing methamphetamineand one charge of possessing methamphetamine for supply.1 He was sentenced on 26January 2018 to 10 years and six months' imprisonment, and required to serve aminimum period of 50 per cent of that sentence.2 Mr Landrein now appeals thatsentence on the grounds it is manifestly excessive.Background[2] Mr Landrein is a French national. On 2 September 2017, he arrived atAuckland International Airport carrying an upright trolley case. The case weighed 5.3kilograms, yet an X-ray scan indicated it was empty. Closer inspection revealed afalse bottom, and in the secret compartment, approximately 1.9 kilograms ofmethamphetamine, with a purity of 80 percent. Its street value is estimated to bebetween $665,000 and $2,280,000.[3] Mr Landrein is 45 years old and has no previous convictions in New Zealandor elsewhere. The pre-sentence report states that he regrets his offending, and wasmotivated by a desperate need for money. He has written a letter of apology to theCourt.[4] Judge Andrée Wiltens in the District Court adopted a starting point of 14 years'imprisonment, and reduced the starting point by 25 per cent to reflect Mr Landrein'searly guilty plea. He did not make any other reductions, so the end sentence was 10years and six months' imprisonment. The Judge also imposed a minimum period ofimprisonment (MPI) of 50 per cent.Grounds of appeal[5] Mr Tennet for Mr Landrein raises issues concerning:1 Misuse of Drugs Act 1975, ss 6(1)(a) and 6(2)(a) (the importation charge); and 6(1)(f) and 6(2)(a)(the possession for supply charge). Both charges carry a maximum sentence of life imprisonment.2 R v Landrein [2018] NZDC 1419.(a) the starting point (given the amount of methamphetamine and the roleplayed by Mr Landrein);(b) the Judge's refusal to grant a discrete credit for remorse, for medicaldifficulties, and for Mr Landrein's 'dislocation' (that is, for being aforeign national with no connections in New Zealand); and(c) the Judge's imposition of an MPI in these circumstances.Approach to appeal[6] I must allow Mr Landrein's appeal if I am satisfied – whether in relation to oneof these stated issues, or otherwise – that there is an error in the sentence imposed onhim, and a different sentence should be imposed. Otherwise, I must dismiss the appealagainst sentence.3[7] The approach previously taken by courts on sentencing appeals continues toapply,4 so that the sentence must be "manifestly excessive" if the appeal is to beallowed.5 The Court will not intervene where the sentence is within the range that canproperly be justified by accepted sentencing principles. Whether a sentence ismanifestly excessive is to be assessed in terms of the sentence given, rather than theprocess by which it is reached.6[8] With that framework in mind, I address each stated issue in turn.Starting point[9] Judge Andrée Wiltens arrived at a starting point of 14 years' imprisonment.His Honour was orthodox in his reliance on the guideline judgment of R v Fatu,7describing Mr Landrein's offending as "a fair way up" within band four on the basisof the significant quantity of methamphetamine involved.83 Criminal Procedure Act 2011, s 250(3).4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].5 At [33], [35].6 Ripia v R [2011] NZCA 101 at [15].7 R v Fatu [2006] 2 NZLR 72 (CA).8 R v Landrein [2018] NZDC 1419 at [3].[10] R v Fatu describes the bands in these terms:9(a) Band One – low-level importing (less than 5 gms) – 2 years 6 months'to 4 years 6 months' imprisonment;(b) Band Two – importing commercial quantities (5gms to 250gms) – 3years, 6 months' to 10 years' imprisonment;(c) Band Three – importing large commercial quantities (250mgs to 500mgs) – 9 to 13 years' imprisonment.(d) Band Four – importing very large commercial quantities (500 gms ormore) – 12 years to life imprisonment.[11] Mr Landrein's importation of 1.9 kilograms clearly falls within band four.Contrary to Mr Tennet's submission, the fact the methamphetamine had a purity of 80percent does not justify a reduction in the overall quantity to be assessed under theFatu bands. The Court of Appeal held those bands are set by reference to "P", "a formof the drug in which the purity is of the order of, or exceeds, 60 percent".10[12] I accept the bands overlap and there is some flexibility in applying them,11particularly with reference to the culpability involved in the specific role played bythe offender.12 Courts have made distinctions between the roles played by themastermind at the highest level, a crucial player at an in-between level, and a merecourier at the lower end of the scale.13 Here, counsel contends the Judge should haveacknowledged the lower culpability inherent in Mr Landrein's role as a 'mule' orcourier.[13] Fatu is explicit, however, that its bands are equally applicable to 'mules',14 andin R v Tyniec, Wylie J notes that this role remains "an important one":159 R v Fatu [2006] 2 NZLR 72 (CA) at [36].10 R v Fatu [2006] 2 NZLR 72 (CA) at [30]. The Court makes a different point at [27], observing"the weight calculations [should] proceed on a basis that is referable to purity So a mixturecontaining 12 g of a controlled drug and 6 g of baking soda is treated as 12 g and not 18 g of thecontrolled drug for the purposes of the Act." In this case, Customs officials initially found 2.376kilograms of a "white crystalline substance", which on field testing was found to contain only 1.9kilograms of 80 percent purity of methamphetamine.11 R v Fatu [2006] 2 NZLR 72 (CA) at [31]. I note, however, the standard approach will be to varythe sentencing levels within the bands in light of other relevant factors: see at [36].12 R v Iwu [2015] NZHC 1438 at [27]–[28]; and R v Martel [2017] NZHC 1878 at [16].13 R v Wickremasinghe HC Auckland T013408, 28 March 2003.14 At [36].15 R v Tyniec HC Auckland CRI-2011-092-6373, 9 August 2011 at [21].Without a courier, the importation of methamphetamine and other drugs intoNew Zealand would be very difficult indeed. Mules or couriers are an integralpart of international drug dealing operations. The community is entitled toexpect protection from people who act as couriers or mules, and this Courtmust impose sentences which deter couriers from trying to import into thiscountry.[14] Judge Andrée Wiltens reasoned along similar lines when – after recording theamount and purity of the methamphetamine found on Mr Landrein's person – hisHonour stated:16What that means so far as I am concerned is that a significant number of ourpopulation could have access to this for somebody's enormous profit. Thereare two sides to the equation. One is the profit that is derived from this activity.The other is the harm that caused to our community. Because of those twofactors this is very serious offending.[15] Tyniec is instructive more generally as a close analogy to the present offending.Mr Tyniec pleaded guilty to the same charges, involving a comparable quantity ofmethamphetamine (1.99kg), which was similarly concealed in a secret compartmentin his travel luggage. Wylie J adopted a starting point of 14 years' imprisonment.[16] The Crown submits Mr Landrein's culpability is greater than that of Mr Tyniecbecause the former had undertaken a similar drug run in a different country some fouryears earlier (although there is no evidence that drug was methamphetamine). I note,however, that the statement of facts records Mr Landrein volunteered that informationto Customs Officers in his formal interview, in the course of providing what appearsto be a comprehensive divulging of his (limited) knowledge of the drug operation. Inthose circumstances – and in recognition of his frankness and cooperation – I do notregard his culpability in relation to the present offending as greater than that of MrTyniec.[17] I consider the Judge was properly mindful of Mr Landrein's lesser role in theoverall drug operation. As the Crown points out, it is helpful to compare his 14-yearstarting point with the higher starting points imposed in cases such as R v Wong.17 Inthat case, the Court of Appeal considered a 15-year starting point appropriate for an16 At [2].17 R v Wong [2009] NZCA 332.offender who played a role in organising and "catching" as well as courieringmethamphetamine.Discounts[18] In Tyniec, Wylie J gave generous discounts for good character, remorse, anearly guilty plea, and the fact Mr Tyniec, a Polish national, would "suffer from culturaland language difficulties" in prison.18 His Honour reduced the overall sentence by 50percent for these mitigating factors.[19] Here, however, Judge Andrée Wiltens held that the "only mitigation that isavailable to [Mr Landrein] is the fact that you pleaded to this at a very early stage",for which his Honour granted the full 25 percent credit.19 Every case turns on its ownfacts, of course, particularly when it comes to the highly discretionary exercise ofapplying discounts for personal mitigating factors. The issue is whether furtherdiscounts were warranted in this case.[20] I begin by acknowledging the Judge was mindful of wider personalcircumstances, noting that Mr Landrein has no prior convictions in New Zealand orelsewhere, and further:20 that life in prison in New Zealand is not going to be easy for you becauseof the language issues and because of lack of family and support.[21] But his Honour emphasised the importance of the sentencing purposes ofdenouncing the offending, and deterring future couriers from importingmethamphetamine into New Zealand:21When you agreed to do this you knew that was the risk, and you took it. Nowyou have to face the consequences Tell all your friends do not take the risk of going to New Zealand becausethere are real consequences if you are caught.18 At [30].19 At [5].20 At [4].21 At [4] and [8].[22] This emphasis was not misplaced. In R v Jarden,22 the Supreme Court restatedthe principle that in sentencing those convicted of dealing commercially in controlleddrugs, the personal circumstances of the offender must be subordinated to theimportance of deterrence. The Court did acknowledge, however, that it would, inappropriate cases, take personal circumstances into account if they contributed to theoffending or provided particular reasons for compassion.23[23] Aside from his own claim that he desperately needed money, there is no realsuggestion Mr Landrein's personal circumstances have materially contributed to hisoffending. But Mr Tennet says that nevertheless there is reason for compassion,characterising his client as "a regretful and remorseful defendant who pleaded guiltyat the first opportunity and was cooperative".[24] There is justification for his submission. Mr Landrein pleaded guilty, haswritten a letter of apology to the Court, and was highly co-operative with officials,explaining what he knew of the drug operation. He has already received credit for hisplea. While his letter, of itself, does not provide "hard evidence of genuine regret andremorse",24 in my view it warrants a modest discount when considered in light of hiscooperation with officials.[25] In reliance on the recent Court of Appeal decision in Gao v R (post-datingJudge Andrée Wiltens' decision), Mr Tennet also contends a discrete discount shouldhave been given for 'dislocation'. As the Court of Appeal explains:25 the effects of dislocation from family and culture may result in a sentencebeing disproportionately severe on a foreign national Anne Owers, HMChief Inspector of Prisons, noted in 2006:As the report makes clear, foreign nationals, though a divergentgroup, have a recognisable cluster of specific needs. Our researchidentified three that are both serious and prevalent, across all groups.They are: language, family links and immigration. The three areinterlinked, and can result in isolation, depression and confusion.Family links were particularly important for women prisoners, manyserving long sentences for drug importation; while young prisoners22 R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612.23 At [12].24 R v Senior (2000) 18 CRNZ 340 (HC) at [21], citing R v Brewster [1998] 1 Cr App R 220 (CA).25 Gao v R [2018] NZCA 69 at [21]–[22].tended to be unaware of the serious potential consequences of theirsentences.Simple things also impact more severely on a foreign prisoner, including diet,religious needs and telephone costs. Cultural indifference or, worse, racism isanother problem.(footnotes omitted)Yet as the Crown points out, Mr Tennet did not refer to the following two paragraphs,where the Court goes on to say:[23] But without in any way criticising Mr Chisnall's helpful submissions,this is not the proper case for formulating general guidance on discounts fordislocation effects. There is no evidence before us on the effects of dislocationon foreign nationals in New Zealand and there is scant evidence to show thatimprisonment will be disproportionately severe for Mr Wu because ofdislocation effects.[24] Another difficulty is that Mr Wu, more than most, engages the needfor deterrence. He has come to New Zealand for the sole purpose of importingmethamphetamine and has recruited others in New Zealand to do the same.[26] It is accordingly clear that the Court of Appeal is not emphatically saying thata discount for dislocation will never be warranted, but rather that this was not the caseto provide broad appellate guidance on the subject. In Tran v R – another caseinvolving the importation and possession of methamphetamine – the Court of Appealreduced a starting point of 13 years by six months to reflect the effects of a prisonsentence on Ms Tran in New Zealand, including the fact that her family overseassuffered serious health issues.26 The need for deterrence will therefore not always ornecessarily trump the granting of a discount for dislocation in appropriate cases. Inthe present context, it is relevant that Mr Landrein's offending is less serious than thatof Mr Wu in Gao v R, and the requisite requirement of deterrence is correspondinglyless.[27] Nevertheless, "care is needed before too much weight is attributed in thesesituations to the impact of jail in a foreign country",27 especially where no clearevidence has been put before the Court to establish the level or nature of the uniqueharm Mr Landrein will face as a result of his dislocation.26 Tran v R [2017] NZCA 146 at [30] and [33].27 Machado-Pereira v R [2015] NZCA 423 at [13].[28] As for Mr Landrein's health, Mr Tennet advised that Mr Landrein hadcontracted hepatitis and there were difficulties with treatment in New Zealand.However, there was a paucity of evidence on this subject and so I directed the filingof further memoranda following the hearing. Mr Tennet has now filed several pagesselected from Mr Landrein's medical file. A letter from a nurse specialist dated 16October 2017 confirms Mr Landrein's diagnosis of chronic hepatitis C, genotype 3.There is a further letter from Corrections, which is undated and unsigned, in which aMr Warwick Beever states that Mr Landrein is not currently eligible for treatment ofhis hepatitis C as it is only funded for "Type one genotype". The letter is not printedon any form of letterhead, but the designatory letters after Mr Beever's name indicatethat he is the health centre manager at Mount Eden Corrections Facility.[29] Mr Tennet relies on R v Verschaffelt, a sentence appeal concerning supply andconspiracy to import Class A and B drugs.28 Mr Verschaffelt suffered from an unusualmedical condition in which he developed certain symptoms (including internal andexternal swelling) upon exposure to cold. He was kept in a special needs unit in prison,but despite the efforts of prison authorities the cell was too cold for him and he becameill several times. The Court of Appeal recognised the humanitarian principle thatwhere prison would constitute a more severe penalty for the particular offender due toa medical condition or disability, some leniency may be shown in sentencing. Acombined discount of 50 per cent was awarded to reflect Mr Verschaffelt's medicalcondition as well as his plea of guilty and other factors (which are not specified). Inmy view the evidence regarding the disproportionately severe impact of imprisonmenton Mr Verschaffelt as a result of his medical condition is much more compelling thanthe limited evidence available regarding Mr Landrein.[30] The Crown relies on M v Police, in which the appellant adduced evidence thathe had recently been diagnosed with cirrhosis of the liver and hepatitis C, genotype3.29 The Court of Appeal considered that the evidence did not satisfactorily addresswhat treatment the appellant was able to receive in prison for his diagnosed medicalcondition. It cited ss 49, 51 and 75 of the Corrections Act 2004, which require theDepartment of Corrections to assess the prisoner's medical needs upon arrival in28 R v Verschaffelt [2002] 3 NZLR 772 (CA).29 M v Police [2018] NZHC 1230.prison and which give the prisoner a right to receive medical treatment that isreasonably necessary. The Court considered it could assume medical treatmentreasonably necessary to manage the appellant's medical conditions would be provided,and awarded no discount.[31] As in M v Police, here too the evidence falls short of conclusively showing thatmedical treatment is unavailable for Mr Landrein in prison. Because of the unsigned,undated and unspecific nature of the contents of Mr Beever's letter, I am unable toplace significant weight on it, although I accept that Mr Landrein's diagnosis has beenconfirmed. Nor do I have any evidence or information as to how his medical conditionimpacts on his day-to-day life in prison.[32] While the various personal mitigating factors relied on by Mr Tennet are notcompelling when considered in isolation, in my view taken together they warrantrecognition, and I consider the Judge erred in not giving any credit on sentence forfactors beyond Mr Landrein's guilty plea. Stepping back to consider Mr Landrein'soverall culpability, and with a view to consistency with Tyniec, it is appropriate to takeinto account his remorse, co-operation with officials, dislocation, and medical issuesby applying a modest global discount of 15 percent for his personal circumstances.[33] Applying a 15 percent reduction to the starting point of 14 years' imprisonmentresults in a sentence of 11.9 years. A further reduction of 25 per cent for Mr Landrein'searly guilty plea, results in an end sentence of eight years and 10 months.Accordingly I find that the sentence imposed by the District Court Judge, namely 10years and six months' imprisonment, was manifestly excessive.Minimum period of imprisonment[34] The final issue, then, is whether the Judge erred in imposing an MPI of 50percent. The Judge made the following remarks in this context:30It is appropriate, therefore, that I impose a minimum period of imprisonment.What that means is it is not a question of simply asking to be sent home. Itmeans you are going to serve a significant part of the sentence before you aresent home, and that is necessary to hold you accountable for your actions, to30 At [6].denounce your offending, to deter you and others from doing this in the futureand to try and protect our community. I have the power to impose up [to] two-thirds of the 10 and a half years by way of a minimum period of imprisonment.I will not do that. I am imposing it for 50 percent instead.[35] No MPI was imposed in Tyniec. Wylie J considered that the offender was"unlikely to offend in this way again", and so there was no need to protect thecommunity from him.31 Here the Crown stresses Mr Landrein's admission that he hadundertaken a drug run before, and says that this implies he is more likely to do it again.I note however that Mr Landrein does not appear to have been convicted for that priordrug run, and I disregard that matter for present purposes.[36] The Court of Appeal has said it is "almost invariable" that in cases of veryserious drug offending the criteria for a s 86 order will be made out.32 Further, theCourt of Appeal has observed:33 foreigners should not be treated differently from New Zealand citizenswhere substantial drug dealing is involved: R v Zhou. More recently, this Courthas held that the prospect of deportation is not a proper ground for refusing toimpose a minimum sentence which is otherwise justified.(footnotes omitted)[37] Nevertheless the Court of Appeal appears to have taken account of this factorin deciding that an MPI was not warranted in Tran v R,34 and I shall proceed on thebasis that the relevance of this issue will depend on the particular facts of each case.After all, an MPI is never automatic, and the test is always whether the usual non-parole period is insufficient to hold the defendant accountable, denounce their conduct,deter them and others, and protect the community.35[38] In the present case I consider that an MPI was not warranted based on MrLandrein's personal circumstances and risk of re-offending. In my view the usual non-parole period of one third (given the lengthy end sentence) is sufficient to meet thepurposes of accountability, denunciation, deterrence and protection of the community.31 At [35].32 R v Aram [2007] NZCA 328 at [78].33 Olua v R [2014] NZCA 105 at [67].34 Tran v R [2017] NZCA 146 at [33].35 Sentencing Act 2002, s 86(1).Result[39] The appeal is allowed.[40] The sentence of 10 years and six months' imprisonment is quashed, andsubstituted by a lesser sentence of eight years and 10 months' imprisonment on bothcharges, to be served concurrently. The usual minimum period of imprisonment (onethird of the end sentence) is to apply._____________Paul Davison J