FAIYUM v R [2020] NZCA 523

FAIYUM v R [2020] NZCA 523 [23 October 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA94/2020[2020] NZCA 523BETWEEN MOHAMMED FAIYUMAppellantAND THE QUEENRespondentHearing: 7 October 2020Court: Gilbert, Mallon and Ellis JJCounsel: L B Cordwell for AppellantM L Wong for RespondentJudgment: 23 October 2020 at 10 amJUDGMENT OF THE COURTA The appeal against sentence is allowed.B The sentence of eight years and eight months' imprisonment is set aside andsubstituted with a sentence of seven years and six months' imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Mallon J)Introduction[1] Mr Faiyum pleaded guilty to and was convicted of three charges of importingmethamphetamine and two charges of importing cocaine.1 He was sentenced by1 Misuse of Drugs Act 1975, s 6(1)(a) and (2)(a); maximum penalty of life imprisonment.Judge Gibson in the District Court to eight years and eight months' imprisonment.2Mr Faiyum appeals this sentence on the ground that it is manifestly excessive.He contends the Judge adopted an excessive starting point and should have givendiscounts for his methamphetamine addiction and previous good character.The offending[2] The charges relate to Mr Faiyum's involvement in the following importations:(a) 22 July 2017: an importation from a South African address to anAuckland address, via a package declared as "books", examined bythe New Zealand Customs Service (Customs) and found to containabout 633 g of methamphetamine inside the books;3(b) 1 September 2017: an importation from another South African addressto a Papatoetoe address, via a package declared as "[p]ersonal effects",examined by Customs and found to contain about 641 g ofmethamphetamine hidden inside the lining of a suitcase;4(c) 30 May 2018: an importation from a Cambodian address to a differentPapatoetoe address, via a package declared as "picture and frame",examined by Customs and found to contain 1.9 kg of high puritymethamphetamine hidden inside a picture frame;(d) 20 September 2018: an importation from a Brazilian address to aManurewa address, via a package declared as "inflatable gifts",examined by Customs and found to contain 356 g of high puritycocaine concealed in a suitcase containing various items; and(e) 28 September 2018: an importation from another Brazilian address toanother Manurewa address, via a package declared as "sports material,2 R v Faiyum [2020] NZDC 3917.3 The powder weighed 2,042 g and contained methamphetamine with a purity of 31 per cent, whichequates to about 633 g of methamphetamine.4 The powder weighed 1,486 g and contained methamphetamine with a purity of 44 per cent, whichequates to about 641 g of methamphetamine.uniform, football boots, flip flops", examined by Customs and found tocontain about 181 g of cocaine in the lining of the suitcase.5[3] Mr Faiyum's involvement in the first and second importations was totelephone the distributor to inquire about their delivery status and to provide the uniquetracking number, his mobile number and the name "Fai" as references. Mr Faiyum'sconnection to the remaining importations was identified by a search of his mobilephone by Customs on his arrival into Auckland International Airport on1 October 2018 after returning to New Zealand from a period spent living in Fiji.His mobile phone contained screenshot photographs of text messages, websites andhandwritten notes containing the name, address and unique tracking number forthe third and fifth packages, and the phone number of the consignee and the uniquetracking number for the fourth package. A subsequent search of his home address on11 October 2018 located the sender details for the third package, two mobile phonesand several SIM cards.[4] The total quantities imported in the five packages were around 3.2 kg ofmethamphetamine and around 535 g of cocaine.6Mr Faiyum's affidavit[5] Mr Faiyum filed an affidavit for his sentencing. He was 32 years old atthe time of the offending. He was born in Fiji but has lived in New Zealand since2005 apart from some months living back in Fiji in 2018. He worked at a couriercompany from 2012 until his return to Fiji in 2018. He developed a good workingrelationship with his customers and would often check on packages for them so thatthey knew when to expect their parcels.[6] At the end of 2016 Mr Faiyum separated from his second wife after seven anda half years of marriage. He then started drinking heavily and taking drugs. Duringthis phase he met some new "friends" who were members of a gang and often5 The powder weighed 410 g and contained cocaine with a purity of 44 per cent, which is equivalentto about 180.5 g of cocaine. The amended summary of facts contained a typographical error,listing the cocaine amount as 1,805 g.6 This is the total quantity of cocaine stated in the agreed summary of facts. It is a little less thanthe total of the approximate amounts stated in [2(d)] and [2(e)] above.socialised with them "until very late". They knew he was working as a courier.His new friends asked if he would make inquiries about the movement of packagesthat they were expecting from overseas. They would provide him with the trackingnumber of the packages and the consignee details. These packages were not comingthrough the courier company that Mr Faiyum worked for, but he used his experienceand contacts to make inquiries with the other courier companies about the packages.After a while, he knew the packages related to the illegal importation of drugs, but stillagreed to help with them.[7] In mid-2017 Mr Faiyum was contacted by one of these friends, who asked himto keep track of various packages for him. Mr Faiyum told him on the telephone thathe did not want to do this anymore. At the beginning of August 2017, he heard a knockon his door. He opened the door and two of his friends pushed their way into hishouse. He was threatened with violence if he continued to refuse to help. One ofthe visitors punched Mr Faiyum and hit him six times in the chin. He was told to pickup the package. The visitors left Mr Faiyum bleeding and in pain. Mr Faiyum tookhimself to the hospital. He did not want the police to become involved so he toldthe hospital that he had fallen and hit a step. After this incident, Mr Faiyum wasworried these people would beat him up again. He became scared to go home and wasconstantly watching for people coming up his driveway.[8] Mr Faiyum's affidavit attached the report of his hospital visit on6 August 2017. This recorded that Mr Faiyum attended the hospital with a lacerationon his chin, a tender left joint and was unable to fully open his mouth. It also recordedMr Faiyum's explanation that he had slipped on a doorstep.[9] Mr Faiyum expressed his extreme shame at getting involved inthe importations. While accepting that it was not an excuse for his crime, he said thatit happened during a difficult time of his life when he was making bad decisions andassociating with people he did not know well.Other information before the Court at sentencing[10] Mr Faiyum has no previous convictions. The pre-sentence report writerassessed his risk of re-offending as low.[11] Letters of support were provided by his first wife (with whom he had a son),his brother, and two friends. They described Mr Faiyum as a good father and a hardworker and said that his offending had come as a shock. His former wife also saysthat Mr Faiyum was depressed and lonely when his second marriage broke up.[12] A cultural report was submitted to the Court pursuant to s 27 of theSentencing Act 2002. He had a happy childhood in Fiji, married young and moved toNew Zealand where he had a range of jobs. He started using drugs recreationallyduring his second marriage and became hooked on methamphetamine and was alsotaking cocaine after separating from his second wife. He bought his drugs from gangmembers and was going "hard on the drink". He told them he was a courier driverand one thing led to another. His brother was aware he had been punched and endedup in hospital, and that Mr Faiyum was reluctant to return to New Zealand when hewent back to Fiji. He carries the burden of the shame that he brought on his familyand was not thinking about the harm that drugs do to people.District Court judgment[13] In assessing the starting point for the offending, the Judge noted thatthe quantity of drugs put the offending within band five of Zhang v R.7 He identifiedthe aggravating features as being the large degree of commerciality involved with$1.5 million worth of drugs imported, the fact that it was not a one-off activity, andthat there was a degree of sophistication in that the drugs were being sent from severaloverseas places to different addresses. The Judge regarded Mr Faiyum as havingplayed a "reasonably significant role as a catcher".8 He considered that Mr Faiyumhad organised the addresses to which the packages were to be sent, was going to beinvolved in distribution and was not acting under instructions. The Judge considereda sentence of 11 years' imprisonment was an appropriate starting point but forthe element of coercion involved.97 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125]. Band five applies to quantities over2 kg, for which 10 years to life imprisonment is the guideline.8 R v Faiyum, above n 2, at [23].9 At [25].[14] The Judge was sceptical of Mr Faiyum's evidence about why he did not tellthe authorities about the true cause of his injuries on 6 August 2017. The Judge notedthat Mr Faiyum could have described what had happened without identifyingthe perpetrators to the medical practitioners. He could also have reported the matterto the police. The Judge was, however, prepared to accept "there may have been somecoercion of him at some point, but it was not particularly serious".10 He reducedthe starting point to 10 years and six months' imprisonment to account for thiscoercion element.11[15] The Judge declined to allow a discount for matters discussed in the culturalreport. His view was that the background did not provide the necessary nexus tothe offending because Mr Faiyum's upbringing could not be said to have led himinexorably along the path to offending.12[16] The Judge also declined to allow a discount for previous good character.He accepted that Mr Faiyum would ordinarily be entitled to credit for previous goodcharacter. He then referred to a High Court decision in which it was said that such adiscount was generally reserved for older offenders who had lived an otherwiseblameless life and then committed one or two offences.13 Here, Mr Faiyum committeda series of offences over a period of a year and involved himself in a very seriouscommercial importation of illicit drugs. The Judge was therefore not prepared toprovide a previous good character discount.14[17] Mr Faiyum entered his guilty plea on the eve of the trial. He had, however,signalled to the Crown sometime earlier that there would be guilty pleas. The Crownsuggested a discount of 15 per cent for the guilty plea, which the Judge accepted.15[18] This resulted in an end sentence of eight years and eight months' imprisonment.The Judge declined to impose a minimum period of imprisonment.1610 At [15].11 At [25].12 At [16].13 At [27], referring to R v Fangupo [2019] NZHC 2896 at [39]. The Judge's sentencing noteserroneously referred to this case as R v Hingapo.14 At [28].15 At [28].16 At [29].The appealThe starting point[19] Mr Cordwell, counsel for Mr Faiyum, submits it is not clear exactly what rolethe Judge considered Mr Faiyum to have had with reference to the indicia set out inZhang — namely "lesser", "significant" or "leading".17 He submits Mr Faiyum fellinto the "lesser" role using that indicia because he was performing his role underdirection; he was engaged by coercion; he was an addict; there was little or no financialgain; he had no influence on those above him and was assaulted when he attempted tostep away; and he had no awareness of the operation beyond the five importations withwhich he was involved.[20] Mr Cordwell refers to the starting point of eight years' imprisonment adoptedin R v Fangupo for an offender (Mr Finau) with a "lesser" role involved in threeimportations containing 5.1 kg of methamphetamine and a small amount of cocaine.18He also refers to Singh v R, where the same starting point was applied to a co-offender,who also had a lesser role in the same importation conspiracy and had allowed hishome address to be used for the receipt of packages containing a total of 4.45 kg.19He submits a starting point of eight years was also appropriate for Mr Faiyum.[21] The Crown supports the starting point adopted by the Judge for the reasons hegave about Mr Faiyum's role. We consider the Judge's starting point was too highbecause he overstated that role. The available inference from the summary of facts isthat Mr Faiyum's role was to pick up the packages on behalf of the importers. He hadthe details of the consignment and the addresses on his mobile phone to enable him todo that. There is no evidence to challenge Mr Faiyum's affidavit that he was doing soat the direction of others with whom he had become involved because of hisdrug-taking and drinking lifestyle during this period. There is no evidence that hismotive was primarily financial gain, although the scale of the importations wouldindicate there was to be some financial reward for Mr Faiyum.17 Zhang v R, above n 7, at [126].18 R v Fangupo, above n 13, at [31].19 Singh v R [2020] NZCA 211 at [19].[22] Of the "significant" role indicia, Mr Faiyum must have had some awarenessand understanding of the scale of the operation given the number of packages,the different country and sender details, and the different goods in which the drugswere concealed. All of this indicates a degree of sophistication in the operation.He was not, however, directing others by pressure, influence, intimidation or rewardand the other two "significant" role indicia are not entirely applicable. Of the "lesser"role indicia, we consider that Mr Faiyum had no influence on those above him inthe chain. We agree with the Judge that there was a degree of coercion, but the realitywas that Mr Faiyum could and should have reported this to the police. We considerthe other "lesser" role indicia do not apply at all or at least not fully. We considerMr Faiyum was not entirely assisting in the operation to feed his addiction, but norwas he entirely motivated by financial gain. We therefore consider Mr Faiyum's rolewas somewhere between "lesser" and "significant".[23] We consider Mr Faiyum was more competent and aware of the scale ofthe operation in which he was involved than the offenders in Fangupo and Singh, whoreceived starting points of eight years' imprisonment for their involvement inimportations which had a greater total of methamphetamine (although involved fewerimportations). In our view a starting point at the bottom of band five, that is, a startingpoint of 10 years' imprisonment, was appropriate for Mr Faiyum.Addiction discount[24] Mr Cordwell submits that Mr Faiyum should have received a discount becauseof his addiction to methamphetamine. He refers to:(a) Zhang v R, which held that a discount is available for addictiondepending on the extent to which it mitigates moral culpability;20(b) To'a v R, where a discount of five per cent was allowed forthe offender's methamphetamine addiction on a sentence for20 Zhang v R, above n 7, at [149].large-scale conspiracy to supply, offering to supply and supplying 504 gof methamphetamine;21 and(c) Roulston v R, where a discount of 10 per cent was allowed forthe offender's methamphetamine addiction on a sentence forthe manufacturer and supply of that drug.22[25] Mr Cordwell submits a discount of 10 per cent should be allowed forMr Faiyum. He says Mr Faiyum is more comparable to Mr Roulston (where there wasa degree of commerciality, but the principal driver was addiction) than to Mr To'a(who was more directly involved and received a significant financial reward). He alsosays that the cultural report gave a credible account of Mr Faiyum's social dislocationin New Zealand when he was unhappy and lonely after the break up of his secondmarriage.[26] The Crown submits there was an insufficient evidential basis to justify adiscount because Mr Faiyum's addiction is self-reported.23 The Crown also submitsthe Judge was entitled to consider there was an insufficient nexus betweenMr Faiyum's addiction and his decision to offend. The Crown refers to statements byMr Faiyum in the cultural report to the effect that after his break up he was workinglong hours as a courier driver (with methamphetamine giving him energy), he had alot of money from selling a house, he wanted to have fun and he "went next level" onthe alcohol and the drugs. The Crown submits this suggests there was no element ofnecessity in the offending and the indicators are that Mr Faiyum was functioning in anorganised and rationale way.[27] The Judge did not give specific reasons for declining a discount for addiction.The Judge was presumably unimpressed with the partying lifestyle Mr Faiyum wasleading. He emphasised the great harm that methamphetamine does to our community.There can be no doubt about that and we agree that Mr Faiyum did not paint the morecommon picture of an addict's lifestyle that the courts in this country see. We also21 To'a v R [2020] NZCA 187 at [26].22 Roulston v R [2020] NZCA 255 at [42].23 See Zhang v R, above n 7, at [148].agree with the Crown submission that Mr Faiyum's addiction was self-reported(the cultural report on this aspect was based solely on what Mr Faiyum reported tothe writer of that report).[28] We also agree with the Judge that there is no sufficient nexus betweenMr Faiyum's involvement in drugs and any social dislocation he felt. Mr Faiyum hadsuccessfully carved out a life for himself in New Zealand. His unhappiness about hissecond marriage break up does not justify any discount. We do accept that Mr Faiyumbecame involved because his drug use had gotten out of control after that break up andhe was mixing with those involved in supplying it. To some extent his out of controllifestyle is likely to have impaired his judgment in getting involved in this importationoperation. That involvement was out of character as the letters of support and his lackof previous convictions indicate. We have accounted for Mr Faiyum's drug-fuelledlifestyle in assessing his role in the operation. We consider that Mr Faiyum's impairedjudgment is better viewed as decision-making that was out of character and is betterconsidered under the discount for previous good character.Good character discount[29] Mr Cordwell submits the Judge erred in not allowing a discount for previousgood character. He refers to decisions of this Court that have confirmed that suchdiscounts are available to those who were generally law-abiding citizens beforebecoming involved in serious offending.24 He submits that a 10 per cent discountshould have been allowed as it was in Chai v R and in Singh v R.25[30] The Crown resists the submission the Judge erred in not allowing such adiscount, relying on this Court's decision in Taylor v R.26 There, it was recognisedthat the "absence of previous convictions is, of itself, evidence of prior good characterand worthy of some recognition".27 This Court went on to say that the position wasmore difficult where an offender "accumulates a series of offences, for which they are24 The submissions cited the following examples: R v Findlay [2007] NZCA 553 at [91]; R v Sargeant(1974) 60 Cr App R 74 (EWCA Crim) at 77; and Chai v R [2020] NZCA 202.25 Chai v R, above n 24, and Singh v R, above n 19.26 Taylor v R [2017] NZCA 574.27 At [25].to be sentenced".28 In Cindy Taylor's case, however, the Court had no difficulty infinding that the Judge was correct to decline a good character discount. She wassentenced for manslaughter for the death of her mother due to what this Courtdescribed as "the most dreadful neglect" and had also committed dishonesty offendingbefore and after causing this death.29 The Court explained:[30] The application of these principles to the sentencing of Cindy Taylorcreates no difficulty, however. In our view the Judge was right to denyCindy Taylor a discount for good character on the manslaughter charge.First, for the 18 months prior to that offending she had been committing serialdishonesty offending in relation to her uncle's superannuation payments.Secondly, the manslaughter of her mother was followed by reneweddishonesty offending in continuing to claim her mother's superannuationpayments following her death. By no means could a discount for goodcharacter reflect a realistic and justifiable perception that here was an isolatedlapse in grace by a person of otherwise good character who had good prospectsof rehabilitation.[31] We consider Mr Faiyum's circumstances were more like those of Mr Chai andMr Singh (each of whom had become involved in a series of methamphetamineimportations and had no prior convictions) than Ms Taylor. Mr Faiyum's goodcharacter in his early life and until he went out of control, his family support, and hisshame at his offending, make him a good prospect for rehabilitation. We consider a10 per cent discount should have been allowed.End sentence[32] We conclude that the end sentence imposed in the District Court wasmanifestly excessive. With a starting point of 10 years imprisonment and discountsof 10 percent for good character and 15 per cent for the guilty plea, the end sentenceis seven years and six months' imprisonment.Result[33] The appeal against sentence is allowed.[34] The sentence of eight years and eight months' imprisonment is set aside andsubstituted with a sentence of seven years and six months' imprisonment.28 At [26].29 At [1].Solicitors:Crown Law Office, Wellington for Respondent