ZAGROS v R [2023] NZCA 334

ZAGROS v R [2023] NZCA 334 [31 July 2023]NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF THEPARTICULARS OF THE S 27 CULTURAL REPORT AND PSYCHOLOGICALREPORT REMAINS IN FORCE: [2022] NZHC 2874.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA627/2022[2023] NZCA 334BETWEEN SAMI ZAGROSAppellantAND THE KINGRespondentHearing: 12 June 2023Court: Wylie, Thomas and Brewer JJCounsel: A M S Williams and E Huda for AppellantB Hawes and S J Mallett for RespondentJudgment: 31 July 2023 at 10 amJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Thomas J)Introduction[1] Mr Zagros appeals his sentence1 of 16 years' imprisonment following hisconviction on eight charges of importation of methamphetamine,2 three charges of1 R v Zagros [2022] NZHC 2874.2 Misuse of Drugs Act 1975, ss 6(1)(a) and 6(2)(a); and Crimes Act 1961, s 66. Maximum penaltylife imprisonment.attempted importation of methamphetamine,3 one charge of possession of MDMA forsupply,4 one charge of common assault,5 one charge of failing to carry out obligationsin relation to a computer search6 and one charge of money laundering.7[2] Mr Zagros appeals his sentence on the following grounds:(a) The starting point was excessive. Ancillary to this argument is thesubmission that a disputed facts hearing should have been held todetermine Mr Zagros' role in the offending.(b) There was insufficient credit given for guilty pleas.(c) There was insufficient credit for the matters raised in a s 27 report.8Background[3] Between May 2018 and September 2018, Mr Zagros and two co-offenderswere identified by New Zealand Customs Services Investigators as being involved inthe importation and distribution of the Class A controlled drug methamphetamine andthe Class B controlled drug MDMA. The syndicate imported and attempted to importpackages containing methamphetamine to New Zealand, mainly from Mexico and theUnited States of America. The packages were sent to addresses which were vacant orfor rent, or addresses associated with syndicate members. The consignee names werefictitious or slight variations of the names of syndicate members. Packages wouldthen be uplifted by syndicate members or associates.[4] On eight separate occasions, Mr Zagros helped facilitate, through the use ofthe encrypted messaging application Wickr, the importation of methamphetamine intoNew Zealand. He attempted to import methamphetamine on three other occasions.3 Misuse of Drugs Act, ss 6(1)(a) and 6(2)(a); and Crimes Act, ss 66 and 72. Maximum penalty lifeimprisonment.4 Misuse of Drugs Act, ss 6(1)(f) and 6(2)(b); and Crimes Act, s 66. Maximum penalty ofimprisonment for a term not exceeding 14 years.5 Crimes Act, s 196. Maximum penalty imprisonment for term not exceeding 1 year.6 Search and Surveillance Act 2012, s 178. Maximum penalty imprisonment for a term notexceeding 3 months.7 Crimes Act, ss 243 and 243A. Maximum penalty imprisonment for a term not exceeding 7 years.8 Sentencing Act 2002, s 27.Mr Zagros accepts that he imported into New Zealand approximately 3.67 kilogramsof methamphetamine and attempted to import approximately 4.33 kilograms ofmethamphetamine, a combined total of approximately eight kilograms ofmethamphetamine.[5] Messaging located on Mr Zagros' electronic devices shows he was directlyinvolved in arranging for the importations to occur and to be packaged in a way thatcould be concealed from authorities. Mr Zagros employed and managed othersbeneath him in the distribution chain to limit his own risk of exposure. He directed aMr Radford to uplift packages and deliver cash and drugs between Christchurch andAuckland. He would pay Mr Radford in small amounts for his assistance,disproportionate to the quantity of drugs and level of risk involved.[6] Customs located approximately 13,900 MDMA tablets at a storage unit linkedto Mr Zagros which matched MDMA tablets located at his home address.High Court sentencing decision[7] Nation J assessed the methamphetamine offending as falling within band fiveof the guideline judgment of Zhang v R, which applies to importations of more thantwo kilograms and has a starting point of 10 years' to life imprisonment.9[8] The Judge began by observing that, as well as the quantity ofmethamphetamine involved, the role Mr Zagros played was an importantconsideration in fixing culpability and the starting point.10 He identified Mr Zagros'involvement in the offending as in the leading category, or, at the least, at the moreserious end of a significant role. The Judge noted Mr Zagros was directly involved inthe purchase and importation of methamphetamine and the selling of it on acommercial scale. He had substantial links to and influence over others in thedistribution chain in the way he arranged for others to uplift packages and deliverdrugs and cash between Christchurch and Auckland. The Judge reasoned that, indirectly arranging the importations, Mr Zagros must have had close links to the9 R v Zagros, above n 1, at [20] citing Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].10 At [21] citing Zhang, above n 9, at [104] and [118].original source in Mexico and the United States. Mr Zagros expected substantialfinancial gain, as evident in his lifestyle and possession of valuable assets and cash.11The Judge discussed a number of cases including Pratap v R,12 and Moheebi v R,13before addressing the sentence imposed on Mr Zagros' co-offender, Mr Radford.Mr Radford's offending involved a greater number of charges and a greater quantityof methamphetamine (17 kilograms) than Mr Zagros' offending. The Judge noted thatMr Radford pleaded guilty following a sentence indication early in the proceedingsand without negotiating the level of the charge or the facts.14 The Judge who sentencedMr Radford described his role as being in the lesser category. He was not themastermind behind the offending, he acted on Mr Zagros' instructions and was paidsmall quantities of cash.15[9] As a result, the Judge accepted the Crown's submission that a markedly higherstarting point was required in relation to Mr Zagros, despite Mr Radford's offendinginvolving a higher quantity of methamphetamine. Citing Zhang, the Judge noted thatdue regard to role is necessary in order to assess the seriousness of conduct andcriminality involved.16 Mr Zagros stood to profit from the importations in waysMr Radford could not and did not. To derive a profit Mr Zagros had others to assisthim, and others down the chain, in the distribution of the methamphetamine.17[10] Both before and at sentencing, the Judge declined Mr Zagros' request for adisputed facts hearing.18 Mr Zagros had asserted that he was not involved directly inpurchasing commercial quantities of methamphetamine, there were people above himin the distribution chain, Mr Radford's offending was on a broader and moresubstantial scale, his profit was more modest than alleged, and that items in policecustody were not the proceeds of his offending. In light of Mr Zagros' admittedoffending and the agreed summary of facts, the Judge did not accept Mr Zagros'affidavit provided an evidential basis for him to require a disputed facts hearing.1911 At [22]–[24].12 Pratap v R [2021] NZCA 308.13 Moheebi v R [2020] NZCA 343.14 R v Zagros, above n 1, at [33].15 R v Radford [2020] NZHC 218 at [15]–[17].16 R v Zagros, above n 1, at [37] citing Zhang, above n 9, at [118].17 At [37] and [38].18 At [40].19 At [50].[11] Having considered the cases referred to him and others,20 the Judge adopted astarting point for the methamphetamine importations of 13 years' imprisonment.21 Heuplifted that by two years for the attempted importations, a year for the MDMAoffending and a further year for the money laundering and assault charges, as well asa one month concurrent sentence for refusal to provide access codes to two phones.22The starting point for all offending was therefore 17 years' imprisonment.23[12] Turning to personal aggravating and mitigating factors, the Judge noted thatMr Zagros had offended while on parole for other serious drug charges (on which hewas sentenced to four years and six months' imprisonment). This behaviour, and hisappearance of complying with the conditions of parole while actually offending,demonstrated, in the Judge's view, Mr Zagros' ability to be manipulative anddishonest, and indicated an arrogance and sense of self-entitlement.24 The Judgewould have uplifted the sentence by 18 months but reduced this uplift to nine months(about five per cent) as Mr Zagros had been recalled to prison to serve his earliersentence as a result of this offending.25[13] The Judge gave a 10 per cent discount for the guilty plea and declined anydiscount for matters raised in the s 27 report.26[14] The Judge considered there was no evidence to indicate Mr Zagros recognisedhow his offending harmed the community or that he showed real remorse for theoffending. Mr Zagros' assertion that his role was no more serious than Mr Radfordwas inconsistent with any claim he had taken responsibility for the offending or wasgenuinely remorseful, so no further credit for remorse was available.27[15] The final sentence for all offending was 16 years' imprisonment.2820 Including Zhang v R, above n 9; Smith v R [2020] NZCA 221; Thompson v R CA726/2018, dealtwith as part of the guideline appeal of Zhang v R, above n 9; R v McMillan [2021] NZHC 2118;McMillan v R [2022] NZCA 128; Pratap v R, above n 12; and Moheebi v R, above n 13.21 Zagros v R, above n 1, at [51].22 At [57]–[60].23 At [61].24 At [68].25 At [70].26 At [81] and [84].27 At [97]–[102].28 At [104].Was the starting point too high?Did the Judge err in declining Mr Zagros' request for a disputed facts hearing?[16] The appeal in respect of the starting point is primarily on the basis that, had theCourt accepted the summary of facts for what Mr Zagros says it was and drawninferences more favourable to Mr Zagros, a lesser sentence would have been imposed.It was, said Mr Williams for Mr Zagros, the "most basic" of summaries of fact. It hadbeen negotiated over a long period, primarily in respect of the quantity ofmethamphetamine imported or attempted to be imported and the number of allegedimportations or attempts. Several charges were dismissed and the quantity ofmethamphetamine alleged to have been imported was reduced.29[17] Mr Zagros takes issue with the Judge's categorisation of Mr Zagros' role as inthe leading category or at least the most serious end of a significant role. Mr Williamssubmitted that the Judge inferred Mr Zagros was involved in the purchase and sale ofmethamphetamine on a commercial scale because the statement of facts said he wasdirectly involved in arranging for the importations to occur. In Mr Williams'submission, if the Crown invite this sort of adverse inference from a statement of factsat sentencing, the offender must be given a reasonable opportunity to rebut it.[18] Two weeks before sentencing, and following receipt of the Crown's sentencingsubmissions, the defence filed a memorandum and supporting affidavit fromMr Zagros seeking a disputed facts hearing. In his affidavit, Mr Zagros referred to theCrown's sentencing submission that he was involved directly in the purchase ofcommercial quantities of methamphetamine, that there was no evidence of any personabove him in the distribution chain, and that he expected to receive substantialfinancial gain. Mr Zagros asserted it was incorrect to categorise his offending in thisway. He argued he was not directly involved in purchasing commercial quantities ofmethamphetamine and had a much more limited role. He asserted there were peopleabove him in the distribution chain and that Mr Radford and others engaged in thecommercial distribution of drugs that did not involve him. Mr Zagros maintained that,while Mr Radford did assist Mr Zagros, he also ran his own operation and the scale of29 At [43].Mr Radford's offending was broader and more substantial. Mr Zagros claimed hisprofits were more modest than those the Crown alleged and that items seized by policewere not the proceeds of his offending. Mr Zagros said the cash located at his home($169,800) was not all his money because he was required to send it to Auckland, viaMr Radford, to those leading the organisation.[19] The Judge declined to order a disputed facts hearing both prior to sentencingand at sentencing. In his minute prior to sentencing, the Judge said the Court wouldnot attach any weight to facts other than those accepted through the summary of factsin assessing the culpability of Mr Zagros' offending in terms of Zhang.30 He notedMr Zagros wished to dispute the inferences the Court should draw from the agreedfacts, rather than the underlying facts as referred to in the summary, and that he coulddo so through submissions without the need for a disputed facts hearing.31[20] The Judge said, in considering the starting point for Mr Zagros, it wasappropriate for him to consider the factual basis on which Mr Radford had beensentenced, not Mr Zagros' assertion as to how Mr Radford's culpability should havebeen assessed. On the facts on which Mr Radford was sentenced, and the factsMr Zagros accepted, their roles in the offending were significantly different.32[21] In light of Mr Zagros' admitted offending and the agreed summary of facts, theJudge did not accept that counsel's submissions or Mr Zagros' affidavit provided anevidential basis for a disputed facts hearing.33[22] Disputed fact hearings are provided for in s 24 of the Sentencing Act 2002 asfollows:24 Proof of facts(1) In determining a sentence or other disposition of the case, a court—30 R v Zagros HC Christchurch CRI-2018-009-008704, 27 October 2022 (Minute of Nation J) at[21].31 At [22].32 R v Zagros, above n 1, at [46].33 At [50].(a) may accept as proved any fact that was disclosed by evidenceat the trial and any facts agreed on by the prosecutor and theoffender; and(b) must accept as proved all facts, express or implied, that areessential to a plea of guilty or a finding of guilt.(2) If a fact that is relevant to the determination of a sentence or otherdisposition of the case is asserted by one party and disputed by theother,—(a) the court must indicate to the parties the weight that it wouldbe likely to attach to the disputed fact if it were found to exist,and its significance to the sentence or other disposition of thecase:(b) if a party wishes the court to rely on that fact, the parties mayadduce evidence as to its existence unless the court is satisfiedthat sufficient evidence was adduced at the trial:(c) the prosecutor must prove beyond a reasonable doubt theexistence of any disputed aggravating fact, and must negatebeyond a reasonable doubt any disputed mitigating fact raisedby the defence (other than a mitigating fact referred to inparagraph (d)) that is not wholly implausible or manifestlyfalse:(d) the offender must prove on the balance of probabilities theexistence of any disputed mitigating fact that is not related tothe nature of the offence or to the offender's part in theoffence:(e) either party may cross-examine any witness called by theother party.(3) For the purposes of this section,—aggravating fact means any fact that—(a) the prosecutor asserts as a fact that justifies a greater penaltyor other outcome than might otherwise be appropriate for theoffence; and(b) the court accepts is a fact that may, if established, have thateffect on the sentence or other disposition of the casemitigating fact means any fact that—(a) the offender asserts as a fact that justifies a lesser penalty orother outcome than might otherwise be appropriate for theoffence; and(b) the court accepts is a fact that may, if established, have thateffect on the sentence or other disposition of the case.[23] The summary of facts recorded the agreement between the Crown andMr Zagros as to Mr Zagros' role in the offending in the following terms:Role in the offending9. Messaging located on the defendant's electronic devices shows thathe was directly involved in arranging for the importations to occur,and to be packaged in a way that they could be concealed from theauthorities.10. The defendant employed and managed others beneath him in thedistribution chain – namely co-offender Preston RADFORD – so asto limit his own risk exposure. He would direct Mr RADFORD touplift the packages, and to deliver cash and drugs betweenChristchurch and Auckland. He would pay Mr RADFORD in smallamounts for his assistance, disproportionate to the quantity of drugsand level of risk involved.11. The offending was moderately sophisticated. The defendant haspossession of multiple cellphones, and used encrypted applicationssuch as Wickr to conceal his offending from authorities. He furtheremployed the use of a jamming device at his home address in attemptto prevent his calls being 'bugged' by authorities. Oncemethamphetamine entered New Zealand, the defendant arranged forit to be transported across the country.12. The defendant had five imitation firearms at his home address. Twoof these were located in his office safe, one was in his bedroomdrawers, one at the headboard of his bed, and one beneath hismattress. Further, the defendant had a stun-gun in the driver's door ofhis Mercedes.13. The defendant made a large profit from his activities. In a safe at hisaddress Police located $169,800 in cash. His lifestyle and other assetsin his position (including late model, high valued vehicles) isconsistent with the commercial profit he was deriving.[24] An earlier version of the summary of facts had stated that Mr Zagros played asignificant role in the importations. At Mr Zagros' request, that reference was deleted.In Mr Williams' submission, Mr Zagros had understood that the Crown's position onsentencing would be more moderate than an assertion Mr Zagros played a significant,but not leading, role in the offending. Mr Williams took that to mean that the defencecould submit that the Judge should infer Mr Zagros played a lesser role.Unsurprisingly, the contrary position was adopted by the Crown, who considered itwas open to the Crown to argue that it could be inferred Mr Zagros played more thana significant role, albeit it was not contended that Mr Zagros operated at the apex ofthe organisation. We do not consider there is anything untoward in that regard.[25] Mr Williams' submissions in support of the appeal described Mr Zagros' rolein the following terms:3410 Mr Zagros acknowledges that using Wickr, which is an encryptedmessaging application, he "helped facilitate" the importation ofmethamphetamine into New Zealand. He did this by providing theaddresses of vacant or yet to be rented properties in Christchurch towhere the methamphetamine could be sent and by suggesting thatconsignments could be packaged in a way that could avoid detection.It is conceded that the appellant asked Mr Radford to uplift packagesand that the former paid the latter to transport cash and drugs betweenChristchurch and Auckland. Mr Zagros also accepts that he gainedfinancially as a result of his activities. For instance, he invested$100,000 in Bitcoin cryptocurrency using the payments he receivedfor the role he played within the drug syndicate. But the appellantmaintains that the cash totalling $169,800 located inside a safe at hishome, although in his possession, were not all his to do as he pleased.Rather, a significant portion of it was earmarked for Mr Radford totake to Auckland as he had previously done. As for the two vehicles,they were truly not of high value.[26] These submissions incorporate the essential elements from the agreedsummary of facts and some aspects of Mr Zagros' affidavit. To the extent there wasan attempt to water down what was in the agreed summary of facts, the summary offacts must prevail. For example, while Mr Zagros acknowledges he "helped facilitate"the importation, he did so, as the summary of facts records, by being directly involved,employing and managing others beneath him, directing Mr Radford and paying him adisproportionate amount in relation to the quantity of drugs and level of risk involved.He accepted he "made a large profit" from his activities and his lifestyle and otherassets were "consistent with the commercial profit" he was deriving. Where chargesare resolved on the basis of a carefully negotiated summary of facts, it is notappropriate to seek to undermine those agreed facts through a disputed facts hearing.[27] We do not consider that the Judge's analysis strayed from what was agreed. Indetermining Mr Zagros' culpability or role, the Judge did not suggest Mr Zagros wasat the top of the syndicate. The Judge said:35In directly arranging the importations, you must have had close links to theoriginal source in Mexico and the United States I consider that is anappropriate inference to draw from the agreed facts and not something that I34 Footnotes omitted.35 R v Zagros, above n 1, at [24].must reject simply because you have filed an affidavit in which you assertother people were involved.[28] The purpose of a summary of facts is, as the name suggests, to record the factsof the offending. A disputed facts hearing is concerned with proof of facts, notinferences that might be drawn from them. The Judge was entitled to draw inferencesbased on the agreed summary of facts to determine what role Mr Zagros played withinthe syndicate based on those facts. The determination of an appropriate starting pointon the basis of the summary of facts and the inferences to be drawn from it is a legalquestion for the sentencing judge.[29] We do not accept the Judge erred. He made it clear prior to sentencing and inthe course of his judgment that he was relying on the agreed summary of facts only.The Judge addressed the concerns Mr Zagros raised in his affidavit and explained hisassessment of Mr Zagros' role and how that assessment was based on the agreed facts.A disputed facts hearing was not necessary.What was Mr Zagros' role?[30] Role has a fundamental impact on culpability.36 This Court in Zhang set outthree categories of role: leading, significant and lesser. The leading role applies wherethe offender is directing or organising, buying and selling on a commercial scale and/oris closely connected to the product source and/or has expectation of substantialfinancial gain. The lesser role involves an offender who will probably have performeda limited function under direction and/or may have been engaged by duress, naivetyor other vulnerability.37[31] The significant role outlined in Zhang was reformulated by the Supreme Courtin Berkland v R.38 The Supreme Court observed that an offender in a significant rolewill have a management function in an operation or chain where, under direction froma leader, this entails directing others in the operation whether by pressure, influence,intimidation or reward. They will have an operational function whether operatingalone or with others and are motivated solely or primarily by financial or other36 Zhang v R, above n 9, at [110].37 At [115].38 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [67]–[71].advantage. Their reward is commensurate with role and risk, and they have someunderstanding of the scale of the operation. Those at the upper end of significantmanage aspects of the overall operation with at least some knowledge of how thepieces fit together. They direct and engage others in managing a significant aspect ofthe operation. They can be expected to have been paid in a way which is broadlycommensurate with the risks that are run and the overall profitability of the operation.By contrast, a person in the middle to lower range of significant is typically requiredto carry a greater share of the risk than the reward justifies.[32] The Judge characterised Mr Zagros' involvement as "in the leading categoryor, at the least, at the more serious end of a significant role".39[33] Mr Williams submitted that undue emphasis was placed on Mr Zagros' role inthe syndicate and that his role was overstated. He suggested Mr Zagros' role fell inthe middle of "significant" as described in Berkland.40 His financial gain was limited,in relative terms and the lion's share of the money had been transported by Mr Radfordto the top of the hierarchy in Auckland. Mr Williams suggested that Mr Zagros wasexposed to the risk of being caught from the beginning of the operation, given avariation of his name was used in a consignment sent from Mexico to New Zealand.In Mr William's submission, if he had "close links to the original source" as inferredby the Judge, it is unlikely Mr Zagros would have permitted a variation of his name tobe used. He described Mr Zagros as a paid risk-taking custodian for those at the topof the hierarchy.[34] Mr Williams accepted that Mr Zagros exercised "some" managerial functions,acknowledging that he issued directions to people under him, for example Mr Radford.Mr Williams said, however, that Mr Radford was not working solely for Mr Zagrosand that Mr Radford was involved in a much broader scale of offending thanMr Zagros. However, that is not the point and the Judge appropriately considered thefacts on which Mr Radford had been sentenced, not Mr Zagros' allegations aboutMr Radford. The issue is Mr Zagros' role. To be at the higher end of the significantscale does not mean that Mr Zagros was at the apex of the organisation or indeed at39 R v Zagros, above n 1, at [22].40 Berkland v R, above n 38, at [71].the leading level. Mr Williams accepted that Mr Zagros operated with a degree ofautonomy but maintained he was subject to the direction of others. In our view that isconsistent with a person operating above the middle level of the significant role.[35] That Mr Zagros played a managerial role was self-evident from the summaryof facts. We reject the contention that Mr Zagros' role fell within the middle of thesignificant category, given how the Supreme Court has described those falling withinthe middle end of the significant range as being unlikely to exercise managerialfunctions or have real autonomy in the performance of their functions.41 The summaryof facts recorded that Mr Zagros employed and managed others beneath him, directedthem and paid them. He arranged for the transportation of methamphetamine aroundthe country.[36] It was open to the Judge to conclude, on the basis of the summary of facts, thatMr Zagros' role was at the more serious end of a significant role and, in our view, hewas correct to do so.Starting point[37] In Mr Williams' submission, the starting point of 13 years' imprisonment forthe methamphetamine importation was consistent with a finding that Mr Zagrosplayed a leading role in the offending (as opposed to the finding he was at the moreserious end of significant), particularly given the amount of methamphetamineinvolved, which he described as a "modest quantity". He accepted that, at eightkilograms, the amount of methamphetamine involved overall, including the attemptedimportations, was a little over the entry level for band 5 of Zhang. In Mr Williams'submission, a global starting point of 11 years' imprisonment was appropriate for boththe methamphetamine and money laundering offences.[38] Mr Williams noted the importance of quantum in determining culpability as anaggravating factor.42 He compared this case to Fangupo v R43 and Pai v R,44 where41 At [69].42 Citing Berkland v R, above n 38; Wan v R [2020] NZCA 328; and Zhang v R, above n 9.43 Fangupo v R [2020] NZCA 484.44 Pai v R [2020] NZCA 146.starting points of 17 years' and 15 years' imprisonment respectively were consideredappropriate for the importation of larger quantities of methamphetamine (20-pluskilograms). He contended that, because Mr Zagros imported a far smaller quantity ofmethamphetamine than other cases with comparable starting points, the starting pointwas manifestly excessive, even if Mr Zagros' role were elevated to that of the offenderin Fangupo (a moderately leading role).45[39] Mr Mallett, for the respondent, submitted the starting point adopted wasconsistent with the cases the Judge cited: Pratap v R and Moheebi v R.46 He said, evenif Mr Zagros played a lesser role than the offenders in those cases, the quantity ofmethamphetamine was such that the 13 year starting point could not be said to beoutside the available range. Mr Mallett also referred to Hobson v R, where this Courtobserved that if Ms Hobson, whose role was at the lower end of leading, had managedto successfully import all 590 grams of methamphetamine (290 grams was interceptedin Thailand) then a starting point of 10 years and six months' would have beenappropriate.47 Mr Mallett contended that Mr Zagros had a comparable role toMs Hobson but admitted to having imported a far larger quantity.[40] Mr Mallett distinguished Fangupo and Pai, suggesting they bore noresemblance to Mr Zagros' offending, given the large amount of methamphetamineimported by the defendants in those cases.48 To use them as yardsticks ignored thefact the 13 year starting point is consistent with other authority of this Court which ismore comparable in terms of quantity imported. Moreover, it assumed that startingpoints will increase in a linear fashion commensurate with the increase in quantum,while the dissenting judgment in Berkland and this Court in Harding v R suggest thatthe principles of sentencing will be satisfied once certain sentencing levels are reached,irrespective of the quantum being imported.49 Ultimately Mr Mallett submitted that,while perhaps stern, the starting point was within the range available and notmanifestly excessive.45 Fangupo, above n 43, at [42].46 Pratap v R, above n 12; and Moheebi v R, above n 13.47 Hobson v R CA617/2018, dealt with as part of the guideline appeal of Zhang v R, above n 9.48 In excess of 20 kilograms in both cases.49 Berkland v R, above n 38, per Ellen France J at [215]; and Harding v R [2020] NZCA 217.[41] The guidance from R v Zhang is to the effect that quantity is valuable inassessing culpability, but it alone cannot determine culpability. Quantity is highlyrelevant to culpability because it is an indicator of harm or potential harm to thecommunity and may be indicative of commerciality, which is deserving of greaterdenunciation.50 Due regard to role enables sentencing judges to assess properly theseriousness of the conduct and the criminality involved, and thereby the culpabilityinherent in the offending.51[42] There is no case involving the importation of methamphetamine which isdirectly on point with the offending in this case. Many of the cases reviewed involvedhigher culpability in terms of quantity but lower culpability in terms of role,52 or viceversa,53 with a number of cases occupying the middle ground between theseextremes.54[43] Mr Zagros' offending may be compared to two cases discussed by the Judge— Pratap v R and Moheebi v R.[44] In Pratap, this Court allowed a sentence appeal, reducing the starting point of14 years' imprisonment to 13 years' imprisonment for the importation of2.369 kilograms of methamphetamine. Mr Pratap was guilty of seven charges ofimporting packages containing methamphetamine sent from overseas to Mr Pratap'sbusiness and residential address. His role in arranging the importations and directingthe activities of his wife meant he satisfied most of the leading role criteria.55Moheebi v R involved the importation of approximately 500 grams ofmethamphetamine and Mr Moheebi's role was in the leading category. While theoperation was not sophisticated, he was solely responsible for the importation of drugsand expected to realise potentially significant financial benefits. The sentencing Judgehad taken a 12 year starting point with a six month uplift for charges relating to supply50 Zhang v R, above n 9, at [104].51 At [10(d)].52 See for example Zhang v R, above n 9; and Wan v R, above n 42.53 See for example Hobson v R, above n 47; Wratt v R [2021] NZCA 128; and Pratap v R, aboven 12.54 See for example Faiyum v R [2020] NZCA 523 for lesser role and lesser quantity and Fangupo v R,above n 43, for higher role and higher quantity.55 Pratap v R, above n 12.and offering to supply methamphetamine. This Court reduced the starting point to 11years for the methamphetamine importations with a one year uplift for the othercharges.56[45] Mr Zagros' offending bears the most resemblance to that in Pratap. Mr Pratapimported a slightly lesser quantity of methamphetamine than Mr Zagros successfullyimported (2.369 kilograms compared to 3.67 kilograms) but played a slightly higherrole – satisfying most of the criteria for a leading role. When the relative roles andquantities are compared, while Mr Pratap was in a leading role, the operation wasdescribed by this Court as being small in scale. In other words, it did not appear to beparticularly sophisticated. In contrast, Mr Zagros played a role at the upper end ofsignificant in what appeared to be a much larger and more sophisticated operation.When Mr Zagros' role is combined with the total amount of methamphetamine heimported or attempted to import, he has a high level of culpability.[46] It can be helpful to balance the fact scenarios of other cases and the relativeculpability involved in light of role and quantity against the offending at hand inconsidering whether a particular starting point is in range.57 Such was this Court'sapproach in Wan v R.58 Mr Wan's 17 year six month starting point for importing19.1 kilograms of methamphetamine was held to be too high in light of the guidelinesin Zhang. This Court discussed and compared the cases of Zhang59 and Pai.60 WhileMr Wan's culpability was greater in terms of role, Mr Pai had imported a greaterquantity of methamphetamine, 22.6 kilograms, but his reward was disproportionatelylow compared to the street value of the drugs. While Mr Wan imported moremethamphetamine than Mr Zhang, who imported 17.9 kilograms, he played a lesserrole. Having balanced Mr Wan and Zhang's respective roles and relative quantities,this Court determined that the same starting point as applied to Mr Zhang should beadopted in respect of Mr Wan — 15 years' imprisonment.6156 Moheebi v R, above n 13.57 See for example the analysis in Pai v R, above n 44; and Moheebi v R, above n 13.58 Wan v R, above n 42, at [24].59 Zhang v R, above n 9.60 Pai v R, above n 44.61 Wan v R, above n 42, at [24]–[25][47] When Mr Zagros' case is compared to Pai, Zhang and Wan, all three of thosecases involved a greater quantity of methamphetamine (22.6, 17.9 and 19.1 kilogramsrespectively), but involved lower culpability in terms of role, falling at the lower endof significant. To varying degrees, the three offenders served an operational functionin a chain. Mr Wan's profits were extremely modest compared to those available tohis superiors and there was an element of exploitation involved. Mr Pai's financialgain was disproportionate to the street value of the methamphetamine and there wasno evidence he was told what drug was imported or the quantity. There was noevidence demonstrating that Mr Zhang took an active role in the supply stage and noevidence he was involved in directing others.[48] In comparison, Mr Zagros employed and managed others beneath him, directedand paid them and arranged for transportation of methamphetamine around thecountry. He operated with a degree of autonomy and expected substantial financialgain. While Mr Zagros imported a lesser quantity of methamphetamine than Mr Pai,Mr Wan and Mr Zhang, his importations and the attempted importations togethercomprised eight kilograms of methamphetamine, a significant quantity. When this isconsidered alongside his role being at the more serious end of significant, and therespective roles and quantities are balanced, a starting point of 15 years' imprisonmentfor all the methamphetamine offending is within range.[49] We dismiss this ground of appeal.Guilty plea discount[50] At sentencing, Mr Zagros had contended a 20 per cent discount wasappropriate for his guilty plea, the Crown submitting 15 per cent. In Mr Williams'submission, the Judge erred by imposing a discount of 10 per cent, saying it shouldhave been 15 per cent at least. Mr Williams submitted that a complex drug trial ofsome length was avoided through Mr Zagros' guilty plea.[51] The guilty plea was entered part way through the Judge-alone trial. An earlierjury trial was aborted because of late disclosure issues. The trials took place in theCOVID-19 environment where there were considerable difficulties with undertakingjury trials. Mr Zagros elected a Judge-alone trial, he says in order to streamline theprocess.[52] The Judge noted that Mr Zagros pleaded guilty well after the start of theJudge-alone trial. He referred to the potential for the case to have been brought to anend, probably without the need for a trial and much earlier than occurred, as wasevident in his many bench notes and Minutes. The Judge considered Mr Zagros'conduct had done little to reduce the expenditure of time or Court resources. Hereferred to the request for a disputed facts hearing two weeks before sentencing as wellas Mr Zagros' affidavit making assertions contrary to statements in the agreedsummary of facts. He observed that, in seeking a disputed facts hearing, Mr Zagroswas seeking to have the Court and witnesses involved in what would have been asignificant hearing.[53] We consider the Judge was correct to limit the discount for the guilty plea to10 per cent. That was entirely orthodox on the basis of the guidance in Hessell v R62and Moses v R.63 Indeed, given the plea was entered part way through the trial,10 per cent could be considered a generous discount. The Judge gave clear reasonsfor his approach, no error on his part has been identified and we have no reason todisagree with him.[54] We dismiss this ground of appeal.Did the Judge err in refusing a discount in respect of matters raised in the s 27report?[55] The Judge declined to give a discount based on Mr Zagros' s 27 report. Hereferred to comments in the s 27 report suggesting Mr Zagros was raised to seefinancial success as paramount. He observed that Mr Zagros was not before the Courtbecause he was driven to be wealthy but because he considered he was entitled toinvolve himself in serious drug importations to obtain wealth. Given his ongoingassociation with criminal peers and his determination to believe he could avoid being62 Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298; and Hessell v R [2010] NZSC 135, [2011]1 NZLR 607.63 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.held responsible, he was at serious risk of future offending. The Judge recognised theneed to emphasise deterrence and protection of the public.[56] In Mr William's submission, Mr Zagros' upbringing has led him to have adesire to make money at all costs. Mr Williams submitted that information aboutMr Zagros' background contained in the s 27 report meets the meets the causativecontribution test64 and a discount of up to 15 per cent would not be unreasonable.65He accepted the Mr Zagros' primary motivation was to make money.[57] We do not minimise the adverse and challenging issues in Mr Zagros'background. However, we agree with Mr Mallett's submission that the matters raisedby Mr Zagros do not satisfy the causative contribution test. Aspects of Mr Zagros'background and upbringing are, arguably, causative of his desire for wealth. However,they are not causative of commercial methamphetamine offending. Mr Zagros'preoccupation with the trappings of success could have been achieved throughlegitimate means. He is apparently a man of considerable intellect who has beensuccessful in previous legitimate business endeavours. The pre-sentence report notesthat Mr Zagros became involved in the index offending because he realised how muchmoney he could make and was excited by the challenge of doing better than other drugdealers. Mr Zagros likened his offending to a "game" which he wanted to "win". Itwould be perverse to give credit to a commercial drug importer simply because hismotivation for the offending was to obtain wealth and success.[58] Any connection between background and offending is tenuous at best and isdisplaced entirely by the seriousness and complexity of the present offending. As theSupreme Court in Berkland noted:66[111] The causative contribution of background may be displaced where the offending is particularly serious. Complex and orchestratedoffending is likely to involve careful assessment of the risks of detection andtherefore increased agency. The contribution of background to offending withthis level of agency may therefore be significantly reduced or even negated64 Berkland v R, above n 38, at [109].65 The sentencing Judge made an order for suppression under s 205 of the Criminal Procedure Act2011 in relation to information from the s 27 report and a psychological report. We have omittedany detail from this judgment.66 At [111].and other sentencing goals, such as community protection, may be moreimportant. [59] There is no reason to disturb the Judge's decision not to give a discount fors 27 factors.[60] We dismiss this ground of appeal.Result[61] We have dismissed the three grounds of appeal. More fundamentally, we arenot persuaded the sentence was manifestly excessive.[62] The appeal is dismissed.[63] For completeness, we note the suppression order in place in respect of the s 27and psychological reports.Solicitors:Crown Solicitor, Christchurch