R v Aram [2007] NZCA 328 (2 August 2007)

Last Updated: 29 December 2014

NOTE: THIS IS A REDACTED VERSION OF THE JUDGMENT AND THE REASONS THEREFOR, SUITABLE FOR GENERAL PUBLICATION. IT ANNONYMISES WITNESSES A AND B, WHOSE ASSISTANCE IN RELATION TO A POLICE INVESTIGATION OF OFFENDING BY OTHERS, INCLUDING THE PRESENT

APPELLANT, WAS THE SUBJECT OF A SUPPRESSION ORDER. IN ANY PUBLICATION OR REPORT OF THIS JUDGMENT, THE ACTUAL NAMES OF WITNESSES A AND B MUST NOT BE DISCLOSED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA407/06 [2007] NZCA 328

THE QUEEN

v

_{SHAHRAM ARAM}

Hearing: 14 March 2007

Court: William Young P, Chambers and Wilson JJ Counsel: P T R Heaslip for Appellant

A J Gordon and T R Bayley for Crown

Judgment: 2 August 2007 at 10 am

_{JUDGMENT OF THE COURT}

_{The appeal is dismissed.}

R V ARAM CA CA407/06 2 August 2007

REASONS OF THE COURT

_{(Given by Chambers J)}

Table of Contents

_{Para No}

A massive drug operation [1] Issues on the appeal [4] Was the evidence given by B of other non-charged drug

offending in which Mr Aram was involved properly admitted?

The Crown case [14]

Count 4 – March 2003 importation [15] Count 5 – September 2003 importation [17] Counts 1-3 – March-April 2004 drug offending [32]

Mr Aram’s defence [37] Simon France J’s ruling [38] Our view [51]

Were the verdicts unreasonable? [56] Was the summing up on count 4 accurate? [61] Was the sentence manifestly excessive? [70]

A massive drug operation

[1] Shahram Aram was last year found guilty of five serious drug offences:

(a) conspiring to manufacture a class A controlled drug, methampethamine

(count 1);

(b) possession of a class A drug, methamphetamine, for the purpose of supply (count 2);

(c) conspiring to import a class A drug, cocaine (count 3);

(d) importing a controlled drug (the type of drug being undetermined) (count 4); and

(e) importation of a class A drug, methamphetamine (count 5).

[2] The trial judge, Stevens J, subsequently sentenced Mr Aram to 15 years’ imprisonment and ordered him to serve a minimum period of imprisonment of seven and a half years (50%).

[3] Mr Aram now appeals against both conviction and sentence.

Issues on the appeal

[4] Mr Heaslip appeared for Mr Aram on this appeal: he had not been trial counsel. In his 49 page, single-spaced, written submission in support of the appeal, he raised no fewer than 11 grounds in support of the appeal against conviction. In the course of the oral hearing, however, he abandoned or elected not to pursue nine of them. His decision in that regard was sensible: the nine dropped grounds were all hopeless.

[5] That left two grounds of appeal. We added a third, on which counsel filed further submissions after the hearing.

[6] We shall deal with the three live grounds of appeal in the following order.

[7] The Crown called evidence of other drug offending allegedly undertaken by two of Mr Aram’s co-offenders, A and B, who were Crown witnesses. [Note: in this redacted version of these reasons for judgment, A and B are used to refer to the two co-offenders who have the protection of a suppression order in other proceedings.] Some of this offending involved Mr Aram directly, even though he was not charged in respect of it; some he was not involved in directly. Initially Mr Heaslip challenged the admissibility of all this evidence. In the end, however, he accepted that evidence of other offending not involving Mr Aram had been correctly ruled admissible. That concession was appropriate. We are satisfied that, in the context of this case and the issues arising at trial, the evidence of A and B’s other offending was admissible, broadly for the reasons given by Simon France J on a pre-trial ruling: HC AK CRI2004-004-7049 13 June 2006.

[8] Mr Heaslip maintained his objection, however, to evidence of non-charged drug offending in which Mr Aram was implicated. That evidence was, Mr Heaslip submitted, inadmissible on the basis that its probative value was outweighed by its unfairly prejudicial effect. The evidence in issue was given by B: A’s evidence relating to non-charged offending did not involve Mr Aram.

[9] The first issue therefore is: was the evidence given by B of other non-charged drug offending in which Mr Aram was involved properly admitted?

[10] The second issue is whether the verdicts were unreasonable.

[11] The third issue is the one we raised. Count 4 of the indictment alleged that Mr Aram, between 1 March 2003 and 30 April 2003, imported into New Zealand a class B drug, namely methamphetamine. (At that time, methamphetamine was a class B drug.) Stevens J left this to the jury on the basis that, if they were sure that Mr Aram imported into New Zealand a controlled drug, but were not sure the drug was methamphetamine, they could, in the alternative, find Mr Aram guilty of importing a controlled drug, which, for legal reasons, would be treated as a class C drug. The judge was relying on the reasoning of this court and the Privy Council in R v Karpavicius [2001] NZCA 171; [2001] 3 NZLR 41 (CA) and [2004] 1 NZLR 156 (PC). The jury found Mr Aram not guilty on count 4 as charged, but guilty on the alternative. The issue is whether it was appropriate to allow this alternative charge to go to the jury and, if so, whether the judge’s direction in respect of it was accurate.

[12] The issue on the appeal against sentence was whether an overall sentence of

15 years’ imprisonment was manifestly excessive.

[13] Before turning to our discussion of the issues, we mention one matter. One of the abandoned grounds of appeal, relevant to both the appeal against conviction and the appeal against sentence, was alleged trial counsel incompetence and trial counsel’s failure to follow instructions. Trial counsel for the defence were Anthony Rogers and Charles Cato. Following the delivery of a waiver of privilege, both Mr Rogers and Mr Cato swore affidavits in response to Mr Aram’s affidavit in support of his appeal. Once Mr Heaslip saw defence counsel’s affidavits, he elected

not to cross-examine Messrs Rogers and Cato and abandoned this ground of appeal. In these circumstances, we have decided that the fair course to Mr Aram is to treat the appeal as if none of the affidavits had been filed. All we shall add is that, so far as we can determine, Mr Aram was very well served by his trial counsel.

Was the evidence given by B of other non-charged drug offending in which

Mr Aram was involved properly admitted?

The Crown case

[14] In order to understand Mr Heaslip’s submission under this head, we need to explain the essence of the Crown case against Mr Aram with respect to the five counts.

• Count 4 – March 2003 importation

[15] The Crown case was that, at the beginning of 2003, Mr Aram became acquainted with A. A informed Mr Aram he was in financial difficulties. Mr Aram asked A if he was prepared to bring some drugs from Singapore to New Zealand. A’s fee would be NZD15,000, plus expenses. A agreed. He went to Singapore and met, across the border in Malaysia, Mr Aram’s contact. He was given a bag. He arrived back in New Zealand with the bag on 16 March 2003. He cleared Immigration and Customs. This importation did not come to light until a year later, after A had been caught on another drug importation. In the course of A’s confession and providing assistance to the authorities, he told the police about this earlier importation. This offending was the subject of count 4.

[16] After leaving the airport, A gave the bag to Mr Aram. Mr Aram did not immediately pay A. A week later A saw Mr Aram again, with a view to being paid. Mr Aram gave A a cheque for NZD13,500. A complained about the shortfall. Mr Aram replied that this is all he would be getting, “due to currency fluctuations and fluctuations in price of product”. The next day Mr Aram rang A and asked him not to present the cheque. He said he would “solve the problem” within a day or two.

As a consequence, A did not present the cheque. Subsequently Mr Aram paid him NZD7,300 in cash. He never paid the balance, despite fairly constant pressure from A.

• Count 5 – September 2003 importation

[17] A told his friend, B, about his drug run from Singapore. B, like A, was in a difficult financial position. He expressed interest in running drugs as well. A then introduced B to Mr Aram in May 2003.

[18] What happened next is the subject of Mr Heaslip’s challenge. We set out the disputed evidence in italics. Much of it was given by B.

[19] At the meeting in May 2003, Mr Aram told B he had a job for him. His fee for his first drug run was to be USD10,000, plus expenses. On Mr Aram’s instructions, B flew to Singapore. There he met Mr Aram’s contact, a man named Roy. B took instructions from both Roy and Mr Aram. On their instructions, he then flew to Mumbai in India. Mr Aram then arranged for him to contact someone in Mumbai. That person gave B a set of golf clubs. Drugs were secreted in the golf bag. B then flew, as instructed, from Mumbai to Australia. He successfully negotiated Australian immigration and customs controls. Mr Aram met B in Sydney and took possession of the bag. In B’s presence, Mr Aram cut open the bag and extracted the drugs. Mr Aram then used his mobile phone to ring a man called Haji in Malaysia to advise that “the product” had successfully reached Sydney.

[20] Mr Aram then paid B AUD13,000 in cash. He told B that the balance would be settled back in Auckland.

[21] Once back in Auckland, Mr Aram told B he was pleased with the way the operation had gone. He said that he wanted B to do a second drug run, this time to Canada. B undertook that run in late July 2003. He went to Singapore en route to India and met Roy. He then took the drugs, again secreted in a golf bag, from India to Toronto.

[22] After B reached Toronto, he contacted Mr Aram, who then travelled to Toronto himself. Once again, Mr Aram slit open the golf bag to extract the drugs in B’s presence.

[23] Mr Aram had told B that he would receive for this trip USD12,000. But again, B was not paid what Mr Aram had promised. All he got was CAD4,000. This was the second time B had been short-changed. Mr Aram promised him that the balance would be made up the next time B was back in Malaysia.

[24] In August 2003 B again travelled to Singapore on Mr Aram’s instructions. He understood his services were required for a further run, this time to Japan. When he got to Singapore, however, his instructions changed: he was told that another courier had been picked up the previous day in Japan. Roy considered it too risky to send another consignment at that time. Instead, B was to do another run to Australia. The golf bag stratagem was again used. After B successfully negotiated immigration at Sydney Airport, he met Mr Aram. Mr Aram was supposed to pay B for his run, but once again claimed that he was not able to pay him at that time as the Australian buyer of the drugs was still cobbling together the full purchase price. Mr Aram flew out of Sydney, but told B that the balance of the purchase price, $10,000, would be paid in cash the next day, and that he could take that sum in part-payment of his fee. Once again, B was let down. He waited around for a few days, but the funds did not appear. Mr Aram told him, by phone, to go to Singapore and he would be paid there.

[25] B went to Singapore. After waiting some time, Mr Aram told him there was a consignment available to go to Tokyo. B met up with Roy and was given a bag. He travelled to Japan and delivered the drugs.

[26] B then returned to Singapore. The reason for that was that Mr Aram told him the Japanese buyers “paid their dues through a different system”. Mr Aram told him he would be paid on his return to Singapore, a promise apparently confirmed by Roy.

[27] When B reached Singapore, Mr Aram told him to travel to Kuala Lumpur in Malaysia to await instructions. B was at this stage, he said, “getting annoyed” with Mr Aram, not only because the wait in Kuala Lumpur ended up being nearly a fortnight, but also because all the promises to pay had not been fulfilled. He discussed with Mr Aram the money owing on jobs already done. Mr Aram assured him that he would pay the money owing once he reached New Zealand. Although Roy paid B USD7,000 for the Japanese trip, B remained out of pocket in respect of the Australian and Canadian runs. Eventually Roy gave B 400 grams of methamphetamine to bring to New Zealand. B then brought that consignment to New Zealand on 16 September 2003. Again, the fact of this importation’s having occurred did not come to light until later, after B was arrested in respect of other drug offending and decided to give assistance to the authorities. The September

2003 importation was the subject of count 5.

[28] After B reached New Zealand, he met with Mr Aram the following day. B was by this time “brassed off” with Mr Aram. At the meeting, he complained that he had been travelling all over the world, delivering product and not getting paid for it. B said he was not prepared to give Mr Aram the drugs he had just brought in. Mr Aram then suggested that, if B were to give him the product, they could sell it between them. B was not interested in that proposal.

[29] Over the next few days, Mr Aram kept contacting B, asking for “the product”. But B decided not to give it to him until he was paid.

[30] At the same time, B decided to contact Haji in Malaysia. B had previously met Haji in his dealings with Mr Aram and Roy. B expressed his dissatisfaction with Mr Aram and the fact that he had not been paid. Haji said he was also dissatisfied with the state of matters and said not to hand the product across to Mr Aram. Haji asked B to purchase a set of scales and break down the product into saleable units. He would then advise B to whom to deliver it. The plan was to cut Mr Aram out. B followed Haji’s instructions. He sold the product as directed by Haji. All up he received NZD53,000. He then took the money to Haji in Malaysia. Haji paid him.

[31] Thereafter, B had no further dealings with Mr Aram. He continued to do drug runs for Haji.

• Counts 1-3 – March-April 2004 drug offending

[32] We can deal with the remaining counts more briefly, as B’s disputed evidence was only peripherally relevant to them. Of much more relevance to these three counts was A’s evidence (about which there is now no dispute). Also, by March-April 2004, the police had an operation in place, with Mr Aram as the target. They were intercepting Mr Aram’s calls. The transcripts of those calls were the primary evidence against Mr Aram in relation to these three counts.

[33] As a result of the interception warrant, the police became aware of A’s involvement with Mr Aram. They investigated A, and found that he had made a large number of trips over the past year to Singapore. The police by this stage knew that Mr Aram had connections with Singapore. Accordingly, the police decided that the next time A crossed the border, he should be searched. Unfortunately for A, on his next entry into New Zealand (on 28 March 2004), he was carrying two kilograms of methamphetamine. A quickly confessed. He indicated a willingness to assist the authorities. Eventually, that led to a controlled delivery of methamphetamine to Mr Aram. Following that, Mr Aram was arrested.

[34] The first of these three charges (count 1) was a charge of conspiracy to manufacture methamphetamine. It was the Crown case that Mr Aram in March 2004 sought and received quotes to import two million ephedrine tablets. Ephedrine is a precursor substance used in the manufacture of methamphetamine. It was the Crown case that Mr Aram and yet another associate, a Mr Collins, intended to convert this ephedrine into methamphetamine for distribution in this country. The bulk of the evidence on this charge came from intercepted telephone calls and documents found in Mr Aram’s possession following his arrest. A also gave evidence relating to this conspiracy, as Mr Aram had sought to persuade A to assist with the importation of the ephedrine.

[35] Count 3 related to a planned importation of cocaine into New Zealand. A gave evidence of Mr Aram’s attempts to interest him in this plan. As well, there were intercepted discussions relating to this plan from 16 March and 17 March 2004 (before A’s arrest).

[36] The last count (in chronological terms) was count 2: the controlled delivery on 6 April 2004. At the police’s request, A agreed to undertake this delivery. Some

60 grams of the methamphetamine he had imported were concealed with other bags of rock salt inside a carry bag. A then arranged to meet Mr Aram, supposedly to supply him with the imported methamphetamine. The men met; the carry bag was handed across. Almost immediately thereafter, the police swooped and arrested Mr Aram. Count 2 charged Mr Aram with the possession of methamphetamine for supply.

Mr Aram’s defence

[37] Mr Aram’s defence was that A and B were liars who had framed him in the expectation that, by giving assistance (false assistance, Mr Aram asserted) to the authorities, they would receive reduced sentences and a degree of immunity from prosecution. Mr Aram denied he had had anything to do with drugs. His relationship with A and B, such as it was, related to legitimate business interests.

Simon France J’s ruling

[38] As we have already indicated, the defence, prior to trial, had signalled a challenge to the evidence of Messrs A and B in so far as it related to non-charged offending. This caused the Crown to apply under s 344A of the Crimes Act 1961 for an admissibility ruling.

[39] At the time of that ruling, it was anticipated that Mr Aram’s defence would be that he was not involved in any drug dealing. It followed, therefore, that his defence would necessitate a full-scale attack on the credibility of A and B, the two

principal Crown witnesses. The anticipated defence in due course proved to be the actual defence run.

[40] Simon France J was faced with a defence argument that all evidence relating to non-charged drug offending should be ruled inadmissible. (In other words, he faced a broader argument than the one Mr Heaslip pressed on us.) The judge held the proposed evidence was substantially admissible. He suggested some of the evidence be deleted or truncated. There has been no issue before us about those changes.

[41] So far as the non-charged offending involving Mr Aram was concerned, he held its probative value exceeded its unfairly prejudicial effect for the following reasons.

[42] First, he held that the evidence that B was working for Haji and Mr Aram overseas, and that he was having difficulty getting paid for it, was essential to understanding the events surrounding count 5. He noted that the defence had signalled that whether there was sufficient evidence to show Mr Aram was involved in that importation would be a trial issue. Simon France J considered the overseas evidence went directly to that.

[43] Secondly, A’s evidence was relevant to the other counts. We do not need to explore this reason further, as A’s evidence is now not in dispute.

[44] Thirdly, he held that the evidence of the overseas offending was part of A’s and B’s “story”. He added: “Denial by Mr Aram of that offending involves the exact same process as denial of the primary charges – namely, showing that B and A are lying. The prejudicial evidence does not broaden the task of the defence in the sense of requiring it to fight off new witnesses and side issues.”

[45] Finally, he considered that the credibility of B and A concerning their own actions would be affected by any exclusion. He added: “It is not a case whereby their credibility is being boosted by extrinsic evidence from other witnesses. Rather, exclusion limits their capacity to explain their own actions as those actions are

relevant to the charges. Whilst it would not be unique for a witness to be affected because some of their narrative is excluded, it is a question of balancing impact on the narrative if it is excluded against prejudice if it is not.”

[46] Simon France J concluded:

[37] Taking all these factors I conclude that the probative value is such as to require the admission of evidence of overseas offending by Mr Aram during the 14 month period when the two witnesses were associated with him.

[47] Simon France J also considered the evidence relating to non-charged drug offending not involving Mr Aram was admissible. He considered that evidence of the courier work the two men did for Haji in other parts of the world assisted with the narrative and helped establish the couriers’ credentials. He accepted it was not vital evidence, but it was relevant, and it carried minimal prejudice to Mr Aram.

[48] His Honour also added:

[42] A consequence of all this evidence going in is that it potentially helps the defence challenge to the nature of the drug imported. The whole picture makes it plain that Haji and Aram were involved in moving drugs other than methamphetamine. No particular weight should be attached to this in terms of admissibility, but it does add to the legitimacy of allowing the full picture to be revealed.

[49] That last observation proved prophetic. We suspect part of the reason why the jury were not sure that the March 2003 importation involved methamphetamine was the fact that the evidence revealed that Mr Aram was involved “in moving drugs other than methamphetamine”.

[50] As we have already noted, there is now no dispute about the admissibility of the evidence relating to non-charged drug offending not involving Mr Aram.

Our view

[51] We have no doubt that the disputed evidence was correctly ruled admissible. Our reasons are essentially the same as Simon France J’s.

[52] One has only to read the above synopsis of evidence relating to count 2 with the italicised portion excised to appreciate that B’s account would be grossly distorted if the disputed overseas offending evidence was excluded. After all, he did not give the methamphetamine to Mr Aram. If one knows the background – the other drug runs for which Mr Aram had not paid him – the reason for not handing over the drugs on this occasion is fully explicable. It is entirely consistent with Mr Aram’s having been involved in this importation, but not receiving the drugs because of having let down B on earlier arrangements. Exclude the reason, however, and it becomes much easier for Mr Aram to run a defence to the following effect: “Of course, I wasn’t involved in this importation. Look, he brought the drugs in. He didn’t give them to me. I got no money from them.” The jury would not have known why the drugs were not given to Mr Aram on that occasion. As Simon France J said, the disputed evidence, and in particular B’s difficulty in getting paid for the work he had previously done for Mr Aram, was essential to understanding the events surrounding count 5.

[53] In addition, it would have been impossible to give a truthful and non- distorted account of the meetings and conversations referred to at [27]-[30] above if all references to past drug offending were removed. B’s credibility would have been severely undermined, quite unfairly. Further, his description of what he then did with the drugs after his conversations with Mr Aram would be completely misleading if the jury did not know the background.

[54] In our view, for these reasons and the reasons Simon France J gave, the probative value of the disputed evidence easily outweighed any unfair prejudicial effect it might have had.

[55] The first ground of appeal fails.

Were the verdicts unreasonable?

[56] Section 385(1)(a) of the Crimes Act provides that this court can allow an appeal if it is of opinion “that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence”.

[57] There is some dispute as to exactly what test should be applied when this ground of appeal is relied on. Should the test propounded in R v Ramage [1985] 1

NZLR 392 at 393 (CA) still apply? That issue is currently under consideration by the Full Court in R v Munro CA33/07.

[58] Whatever test this court ultimately adopts, however, this case would not come near to meeting it. This was not a weak Crown case: it was an overwhelming one. It was so strong, indeed, that the very experienced trial counsel appreciated Mr Aram’s only hope was to give evidence. Defence counsel had made little ground on their cross-examination of A and B. Mr Aram’s evidence-in-chief provided a flimsy explanation for his actions and what was recorded on the intercepted conversations. Whatever coherence the defence had was ripped apart, however, by Crown counsel’s cross-examination.

[59] There was ample evidence to support the jury’s verdict. It is no surprise whatever that the jury found Mr Aram guilty on all counts, albeit on count 4 they could not be sure of what drug had been imported in March 2003.

[60] This ground of appeal must fail.

Was the summing up on count 4 accurate?

[61] As we have said, count 4 of the indictment alleged that Mr Aram, between

1 March 2003 and 30 April 2003, imported into New Zealand a class B drug, namely methamphetamine. This was A’s first importation. From the traffickers’ viewpoint, it was a successful importation, as it went undetected by the authorities. The authorities found out about it only after A was caught a year later and spilled the beans. A himself never saw the drugs he brought into the country; nor was he told precisely what drugs they were. All he knew was what Mr Aram had told him: it was a drug which had no odour, with the consequence that it could not be picked up by sniffer dogs. As well, it was described to A as “a crystal substance essentially”, which could not be picked up by x-ray. A deduced it was methamphetamine, for reasons he gave.

[62] The Crown case was that the jury could be sure that it was methamphetamine which A had brought into the country, for the reasons A had given when deducing he had brought in methamphetamine and because that was what Mr Aram generally trafficked. Ms Gordon, who led for the Crown both at trial and before us, apparently realised during the trial that, while the jury might be sure that A had brought in drugs, they might not be sure the drugs were methamphetamine. There was, after all, evidence that Haji was also involved in the supply of heroin and cocaine. She accordingly asked Stevens J to leave to the jury, as an alternative, importation of a controlled drug, which was unspecified. This course was seen to be permissible in light of Karpavicius. It appears the defence did not object to the course suggested by the Crown.

[63] Accordingly, the judge, both in his oral summing up and in his question trail, asked the jury, among other things, whether they were sure “the prohibited substance was in fact a controlled drug”. If they were, then he asked them whether they were sure it was methamphetamine. If they were, they should find Mr Aram guilty of importation of a class B drug, namely methamphetamine. If they were not sure it was methamphetamine, then he told them to find him guilty of importing a controlled drug, which, he explained “for legal reasons [was] treated as a class C controlled drug”.

[64] Unfortunately, that direction was incomplete because of the complexities of the provisions of the Misuse of Drugs Act 1975. That Act provides that no person shall “import into or export from New Zealand any controlled drug, other than a controlled drug specified or described in Part 6 of Schedule 3”. What the judge’s direction failed to do was exclude Part 6 controlled drugs (as we shall call them), the importation of which is not prohibited by s 6(1)(a).

[65] We should explain briefly the format of Schedule 3. Schedule 3 drugs are all class C drugs. Schedule 3 is divided into seven parts. Drugs are placed in particular parts according to assessments made by the Expert Advisory Committee on Drugs (EACD), which advises the Minister of Health. The most common class C drug is, of course, cannabis. It appears in Part 1. Part 1 drugs are generally used only illicitly and have no (or very few) therapeutic uses. Part 6 drugs are “combination

products”, commonly referred to as “pharmacy-only medicines”. Part 6 drugs are deemed to carry some risks, but are not seen as carrying risks of dependence or use as precursor substances (cf those drugs in Parts 4 and 5). Because of this, they are not subject to restrictions on import or export, although they are subject to other restrictions under the Act.

[66] The judge should have directed the jury that, before they could bring in a verdict of guilty on the alternative charge, they had to be sure not only that the drugs were controlled drugs but also that they were not Part 6 drugs: Robertson (gen ed) Adams on Criminal Law (looseleaf ed) at [MD29.02]. Counsel and the judge perhaps overlooked this requirement as it was not a feature of Karpavicius. There is a reason for that: it was common ground in Karpavicius that “the evidence to be led at trial against the four accused of conspiring to import a controlled drug [was] sufficient to establish beyond reasonable doubt that the drug, the subject of the conspiracy, was either a Class A controlled drug or a Class B controlled drug but [was] insufficient to establish which class”: [2001] NZCA 171; [2001] 3 NZLR 41 at [1]. There was no suggestion that class C drugs were involved.

[67] The judge did therefore misdirect the jury on the alternative to count 4. We have, however, no doubt that this error “cannot sensibly have given rise to any real risk of an unsafe verdict and hence cannot have led to a substantial miscarriage of justice”: R v Sungsuwan [2005] NZSC 57; [2006] 1 NZLR 730 at [114] (SC). It is the paradigm case for application of the proviso to s 385(1) of the Crimes Act.

[68] On the evidence in this case, there can be no doubt what the jury’s verdict would have been had they been correctly directed on the alternative to count 4. The doubt about the imported drug having been methamphetamine (then a class B drug) arose only because of the clear evidence, which we know from all the guilty verdicts the jury accepted, that Haji, Roy, and Mr Aram were also involved in moving cocaine and heroin (both class A drugs) around the world. It is inconceivable the jury would have considered the controlled drug involved could have been the pharmacy-only medicines covered in Part 6.

[69] Accordingly the appeal against conviction fails.

Was the sentence manifestly excessive?

[70] As part of his ground of appeal alleging trial counsel incompetence, Mr Aram complained about how his counsel acted on the sentencing phase. We have already noted that this ground of appeal was abandoned. But we add two comments in respect of the allegation.

[71] First, Mr Aram complained that counsel should have sought a sentencing facts hearing under s 24 of the Sentencing Act 2002. The assertion, and the submission made on it in Mr Heaslip’s written submissions (later abandoned), show a misunderstanding of the sentencing process. Sentencing facts hearings are rarely necessary in cases where there has been a trial and the sentencing judge was the trial judge (as is almost invariably the case). In those situations, it is for the sentencing judge to make up his or her mind as to the facts based on what he or she considers was proved at the trial: see s 24(1)(a). (Of course, the sentencing judge must accept as proved all facts, express or implied, that are essential to the jury’s findings of guilt: s 24(1)(b).) The primary role of sentencing facts hearings is in cases where guilty pleas are entered but Crown and accused are not able to agree some factual matters considered relevant to the sentencing exercise.

[72] Secondly, we think it appropriate to note the following comment Stevens J

made when sentencing Mr Aram:

I have also heard careful submissions from your counsel today. I have listened carefully to what you [Mr Aram] had to say personally to the court today, and I have read your personal note to me which was attached to the pre-sentence report. So all of those matters have been considered, and may I add that the submissions of your counsel, Mr Cato, were thorough, well directed, and put the very best light that could be put on your offending, given the findings of the jury.

[73] We now turn to the gravamen of this ground of appeal. Mr Heaslip, of his

49 pages of submissions, devoted only a few lines to why the sentence imposed was manifestly excessive. He submitted “that sentencing levels were excessive and inappropriate in all of the circumstances”. He then listed (without elaboration) cases to which “the court should have had regard”. (Some of those, we observe, were expressly referred to in the sentencing notes.) He then submitted:

These cases show that the starting point was too high, the reduction too low and the fixed term period inappropriate. In short, the sentence was crushing and gave no hope for the appellant for the future. It was entirely out of step with his criminality and alleged involvement.

[74] Mr Heaslip, in his written submissions, did not specify what the starting point should have been, what the reduction should have been, or what the fixed term period should have been. Nor did he make any submission as to what the appropriate penalty should have been. In his oral submissions, when we pressed him for a figure, he came up with 12 years’ imprisonment in place of the judge’s

15 years. But no real analysis was undertaken as to why that figure was more appropriate than the judge’s.

[75] We have carefully considered the sentence imposed and the judge’s reasoning leading to it. We cannot fault it. On the contrary, we regard the sentencing notes as exemplary for criminal offending of this seriousness. Stevens J clearly thought deeply about this particular sentence and carefully applied his mind to all the relevant considerations. He also referred to all relevant appellate authorities.

[76] The judge took as his starting point 16 years’ imprisonment. He considered, in line with counsel’s submissions, that count 5 should be regarded as the lead sentence. On its own, in light of R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA), it warranted a starting point of 12 years’ imprisonment, given the amount of methamphetamine imported and Mr Aram’s role in the importation. He then added a further four years to reflect the other offending. Obviously, the other offences, if stand-alone, would have each warranted at least four years’ imprisonment, but the totality principle demanded a softening. The 16 year starting point was appropriate.

[77] The judge then allowed a one year discount to reflect the fact that, in the lengthy period leading up to trial, Mr Aram had been on bail under bail conditions which the judge described as “fairly restrictive”. Mr Aram was subject to those conditions for about 18 months. On the authority of R v Faisandier CA185/00

12 October 2000, the judge thought a one year reduction was warranted. Again, the reasoning is faultless and the reduction appropriate. That led to the overall sentence

of 15 years’ imprisonment, there being no mitigating circumstances. We agree that sentence was appropriate.

[78] The judge explained why a minimum period of imprisonment was appropriate. He considered that Mr Aram should have to serve at least half the sentence (seven years six months). Mr Heaslip was not able to show any error in the judge’s reasoning. It is almost invariable in cases of very serious drug offending that the criteria for a s 86 order are made out: see R v Anslow CA182/05 18 November

2005 at [27].

[79] We dismiss the appeal against sentence.

Solicitors:

Paul Heaslip, Auckland, for Appellant

Crown Law Office, Wellington