Moheebi v R [2020] NZCA 343 (12 August 2020)

Last Updated: 18 August 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA489/2018 [2020] NZCA 343

	BETWEEN	AMIR MOHEEBI Appellant
	AND	THE QUEEN Respondent

Hearing:	16 June 2020
Court:	Courtney, Brewer and Hinton JJ
Counsel:	M W Ryan and JAE Tulloch for Appellant MRL Davie for Respondent
Judgment:	12 August 2020 at 11 am

JUDGMENT OF THE COURT

1. The appeal against sentence is allowed.
2. The sentence of 10 years and five months’ imprisonment with a minimum period of imprisonment of five years is quashed and a sentence of nine years’ imprisonment substituted.

100. No minimum period of imprisonment is imposed under s 86(2) of the Sentencing Act 2002.

____________________________________________________________________

REASONS OF THE COURT

(Given by Hinton J)

Introduction

• [1] On 1 August 2018, Judge Bergseng sentenced Mr Moheebi to 10 years and five months’ imprisonment with a minimum term of imprisonment of five years. This followed a guilty plea to two charges of importing methamphetamine,^[1] one representative charge of supplying methamphetamine,^[2] one representative charge of offering to supply methamphetamine,^[3] one representative charge of selling cannabis,^[4] and one charge each of offering to sell cannabis,^[5] unlawfully possessing a restricted weapon (pepper spray),^[6] possessing cannabis,^[7] and possessing cannabis utensils.^[8]
• [2] Mr Moheebi now appeals against sentence. He says the sentence is manifestly excessive as the starting point the Judge adopted was too high having regard to Mr Moheebi’s role and his analysis of the relevant drug quantity. Moreover, he says the discounts for personal mitigating factors and guilty plea were inadequate. The appellant also contends the Judge erred in imposing a minimum period of imprisonment under s 86(2) of the Sentencing Act 2002.
• [3] The appeal was filed before this Court’s new guideline decision for methamphetamine offending, Zhang v R, was delivered.^[9] If the sentence would be lower under Zhang, Mr Moheebi will be entitled to the benefit of it. Ms Tulloch, for Mr Moheebi, submits that the appropriate sentence would be less under Zhang. For the Crown, Mr Davie submits that Zhang would not make any difference and the appeal should be dismissed.
• [4] Practically speaking, while the approach on this appeal nominally (in terms of the Criminal Procedure Act 2011 framework) remains one of error correction, our task is to compare the sentence imposed with the sentence that would be imposed under Zhang. If the latter is materially less, we will alter the sentence accordingly.

Offending

• [5] Mr Moheebi is an Iranian national who has been a permanent resident of New Zealand since 1997. He visited Iran between 2 May and 24 August 2010. On 23 June 2010, a package was sent from Iran to New Zealand. The package was addressed to Mr Moheebi’s daughter (who was then aged five). The New Zealand Customs Service (Customs) intercepted the package and found it to contain 81.2 grams of methamphetamine. Officers spoke to Mr Moheebi but took no further action at that stage.
• [6] Between June and December 2015, Mr Moheebi visited Iran a second time. On 24 December 2015, another parcel arrived in New Zealand. It was again intercepted by Customs and was found to contain 469 grams of methamphetamine, 150 grams of which had a relatively low purity level of 41 per cent.
• [7] On 7 January 2016, Mr Moheebi attended at Customs’ service counter to uplift the second parcel. That same day, Customs searched a storage unit Mr Moheebi had rented and located pepper spray, cannabis plant material, cannabis utensils and electronic digital scales. When Customs officers interviewed Mr Moheebi that day and obtained his cell phone, they discovered he had supplied methamphetamine on 10 occasions between 2012 and August 2016. No less than 9.1 grams was supplied. Cell phone data also revealed that in June 2015 Mr Moheebi sold an unknown quantity of cannabis to two individuals. That month, Mr Moheebi had also offered, to no avail, to sell half an ounce of cannabis to a third individual. In the interview, Mr Moheebi admitted to importing the December 2015 parcel, but denied packing it or any knowledge of its contents.
• [8] Customs then prosecuted Mr Moheebi in respect of both importations, which involved a total of 550.2 grams of methamphetamine. Further charges relating to the offending, uncovered following the searches undertaken on 7 January 2016, were laid in May and August 2016. In August 2017, Mr Moheebi pleaded guilty to all of the charges except that related to the 2010 importation. He pleaded guilty to that final charge on 8 March 2018.

District Court Sentencing

• [9] The Judge determined the appropriate starting point for the importation charges, as the lead offending, in terms of the then-applicable guideline judgment, R v Fatu.^[10] The Crown submitted that over 500 grams of methamphetamine had been imported, and the case fell within band four of Fatu. This was against the defence submission that the 150 grams of methamphetamine with a lower purity level should be treated as only 61 grams of methamphetamine, resulting in a total of 461 grams, a quantity within band three of Fatu. The Judge acknowledged this Court’s statement in Fatu that offending involving methamphetamine with less than 60 per cent purity might warrant a less stern response in sentencing than offending involving methamphetamine of that purity or greater. ^[11] He said that whether the case was placed at the top of band three or bottom of band four did not make much difference as the bands in Fatu were designed to overlap in their treatment of marginal cases.^[12]
• [10] The Judge noted that role is also an important determinant of culpability, albeit less primarily than quantity. In this respect, he observed that the importations had originated from Iran while Mr Moheebi was in that country, and his fingerprints were found on some of the packaging used in the second importation. On this basis, the Judge found that Mr Moheebi had been directly involved in the importations and was not “a mere mule or catcher”.^[13] For this reason, the Judge considered that, even if Mr Moheebi’s case properly fell within band three, it “would certainly be at the upper range of band 3”.^[14]
• [11] Effectively placing the case at the margin between bands three and four, the Judge adopted a 12-year starting point in respect of the importations.^[15] To this, the Judge imposed an uplift of six months in respect of the supply and offering to supply methamphetamine charges and said that the adjusted starting point of 12 years and six months’ imprisonment adequately reflected Mr Moheebi’s culpability for all of the offending on a totality basis.^[16]
• [12] Turning to personal factors the Judge noted that Mr Moheebi had no relevant previous convictions but could not call in aid previous good character owing to three convictions from around 2000 for wholly distinct offending.^[17]
• [13] The Judge considered, in light of the Supreme Court’s comments in Jarden v R, that any discount for personal mitigating factors would need to be modest.^[18] He awarded a discount of three months in respect of Mr Moheebi’s attending courses while in custody and, relatedly, his insight into the harm to society potentially caused by his actions.^[19]
• [14] It seems the Judge made no allowance in respect of the Department of Corrections’ (Corrections) advice that Mr Moheebi had been unable to work since sustaining a back injury, had subsequently become listless and subject to bad influences, and, ultimately, addicted to methamphetamine. The Judge also did not consider any discrete discount was available in respect of remorse, saying Mr Moheebi was more regretful of the consequences of imprisonment in terms of ability to see his family, than the societal ramifications of his offending.^[20]
• [15] The Judge then awarded a further discount of 15 per cent in respect of the guilty plea, producing an end sentence of 10 years and five months’ imprisonment. As to this, the Judge noted Mr Moheebi entered his guilty pleas “about 18 months after the respective charges had been laid”.^[21] The Judge took the view that Mr Moheebi had reduced the costs associated with prosecuting him considerably, but not to the greatest extent reasonably possible in the circumstances.
• [16] Finally, Judge Bergseng considered whether to impose a minimum period of imprisonment. Having noted this Court’s comments that, under Fatu, minimum periods of imprisonment had been commonly imposed where the finite term was nine years or greater,^[22] and that an automatic approach is not permissible, the Judge imposed a minimum period of imprisonment of five years, or about 50 per cent.^[23] It is not clear which of the factors listed in s 86 of the Sentencing Act 2002 he considered would not be adequately met by Mr Moheebi’s potential release after serving only one-third of his sentence.

Discussion

Was the starting point adopted excessive?

• [17] As to the application of Zhang, Ms Tulloch submits that having regard to the quantity of methamphetamine involved and Mr Moheebi’s role, which she describes as sitting at the lower end of the ‘significant’ role category identified in Zhang, the appropriate starting point on the lead offending is between eight and nine years’ imprisonment. She does not challenge the six-month uplift in respect of the balance of the offending.
• [18] As a preliminary point, the appellant says the overall quantity here is about 460 grams, advancing the same proposition the Judge rejected as to the effect of the abnormally low purity of 150 grams of methamphetamine, namely that 150 grams at 40 per cent purity should be treated as 61 grams, placing the overall quantity at the top of band three. For the Crown, Mr Davie accepts a somewhat less stern approach is required with less pure drugs. However, he says the 150-gram amount should be treated as being about 100 grams for sentencing purposes. This is on the basis the drug was about 40 per cent pure, and so about one-third less pure than the 60 per cent or more purity level on which the Zhang (and previously Fatu) bands are premised.^[24]
• [19] We accept Mr Davie’s approach. This would result in an effective quantity of almost exactly 500 grams: the boundary threshold. But in any event, we prefer the Judge’s less arithmetical approach, which is more consistent with the evaluative assessment emphasised in Zhang.^[25] The overlapping bands in Zhang are not to be applied mechanistically. It makes little difference to Mr Moheebi’s culpability whether, having regard to purity, the case is seen as being towards the top of band three or at the bottom of band four. In terms of quantity the case is plainly at the margin between these bands.
• [20] As to the starting point, Ms Tulloch says that the case of Ms Hobson, one of the appellants in Zhang, is of assistance.^[26] Ms Hobson pleaded guilty to three charges of importing methamphetamine, three charges of possessing methamphetamine for supply and one of conspiring to import methamphetamine. The successful importations resulted in at least 300 grams of methamphetamine entering New Zealand, placing Ms Hobson’s offending in band three of Zhang.^[27] Another 290 grams of methamphetamine was intercepted. Ms Hobson’s role was to receive methamphetamine that had been imported into New Zealand and ‘caught’ by another offender, and then forward the drugs on to others. She managed the distribution of the drug in New Zealand and was the New Zealand liaison with the Thai supplier, to whom she provided the delivery addresses and to whom she was required to remit the funds from the supplies. Her role in this operation, which lacked the hallmarks of sophistication such as the use of business fronts or other attempts at concealment, was assessed as being at the lower end of the ‘leading’ category. This Court considered a starting point of nine years’ imprisonment appropriate.
• [21] Ms Hobson’s case is clearly distinguishable. Unlike that case there is an available inference here that Mr Moheebi was solely responsible for the importation of the drugs into New Zealand and expected to realise potentially significant financial benefits of the importation and subsequent supply, for himself. Mr Moheebi was not a link in a wider supply chain, but rather more, the entrepreneur.
• [22] One similarity we identify between the two cases is that Mr Moheebi’s operation was not sophisticated. While he took some steps to conceal his activities, these were amateurish. Nonetheless, it is clear that Mr Moheebi’s role was higher than Ms Hobson’s, albeit both cases fall within the ‘leading’ range. An offender who manages their own importation operation for financial advantage in the hope of profit is unlikely to fall, contrary to counsel’s submission, into the lower end of the ‘significant’ range in terms of role. Moreover, Mr Moheebi imported rather more methamphetamine than did Ms Hobson, further increasing his comparative culpability. To be consistent with the case of Ms Hobson the starting point should clearly be greater than nine years.
• [23] It is instructive that this Court in Zhang commented that had Ms Hobson’s organisation succeeded in importing the further 290 grams of methamphetamine which was intercepted in Thailand (bringing the total to around 600 grams) the appropriate starting point would have been 10 years and six months’ imprisonment.^[28] Balancing that adjusted fact scenario and conclusion against this case, we would consider a starting point of 11 years’ imprisonment on the importation offending appropriate here.
• [24] We consider however that the uplift of only six months for the balance of the offending was conservative. Overall, on totality, a starting point of 12 years’ imprisonment was appropriate.

Were the discounts allowed for personal mitigating factors inadequate?

• [25] Ms Tulloch submits that the Judge ought to have allowed discounts of between 15 and 20 per cent in respect of Mr Moheebi’s demonstrated desire to reform, evidenced by his completion of courses while in custody; remorse for his offending, which was assessed as genuine by the Corrections report writers (but not by the Judge); and his status as a foreign national.
• [26] In Zhang this Court clarified that discounts for mitigating factors personal to an offender are as relevant to Class A drug offending as for any other class of offending.^[29] This represented a significant departure from earlier statements to the contrary, which plainly led the Judge to feel constrained to award only a very modest discount in respect of rehabilitative potential and demonstrated insight.
• [27] The claim regarding a discount in respect of Mr Moheebi’s status as an Iranian national was advanced in written submissions but not developed orally. We do not think the Judge erred in his treatment of this issue. In Zhang this Court accepted that the additional hardship foreign national prisoners experience compared to New Zealand nationals may warrant some discount.^[30] The contention here is that Mr Moheebi’s family largely remain in Iran such that his detention in this country will unfairly disadvantage him. But many New Zealanders (law abiding and otherwise) have loved ones overseas. We agree with the Judge that Mr Moheebi’s long-term residence in New Zealand prior to his offending tempers the harshness of isolation from his family and no discount is appropriate.
• [28] The three-month discount awarded by the Judge for rehabilitative potential and demonstrated insight equated to only about two per cent. Mr Moheebi had completed courses including drug and alcohol programmes while in custody and had also been offered admission to Odyssey House should he have been granted EM bail, a matter which seems to have been overlooked by the Judge. At the hearing before us, Ms Tulloch handed up an email dated 6 September 2016 from Odyssey House offering a place to Mr Moheebi. There is sufficient evidence to satisfy us that Mr Moheebi suffered from an addiction at the time of his offending and that he had shown a genuine commitment to rehabilitation.
• [29] Addiction does not mitigate culpability in a case like this which involves a high-level role in drug offending and a clear financial motivation, but a greater discount than two per cent should be available to Mr Moheebi in respect of his demonstrated rehabilitative potential.^[31]
• [30] Turning to remorse, as Mr Davie submits, assessment of whether expressed remorse is genuine is a discretionary matter within the province of the sentencing Judge and therefore not lightly disturbed.^[32] However, where the defendant is sentenced following a guilty plea this Court may be in as good a position as the sentencing Judge to make that assessment. Here, the Judge’s conclusion that this was a case of self-pity ran counter to two pre-sentence reports whose writers had accepted Mr Moheebi to be genuinely remorseful. They both considered him to be taking responsibility for his actions and thought his palpable distress related to an acknowledgement of the harm caused. Reading the reports as a whole we are satisfied a discount should be allowed on this basis.
• [31] Adopting a robust approach, we consider that having regard to Mr Moheebi’s expression of remorse, rehabilitative potential and insight, and evidence of addiction, a discount of 10 per cent is warranted in respect of personal factors.

Was the guilty plea discount allowed appropriate?

• [32] Ms Tulloch further submits that a greater guilty plea discount should have been allowed. While accepting that Mr Moheebi’s pleas were not entered at the earliest opportunity, she submits the pleas were entered soon after discussions about evidential sufficiency on a number of the charges were resolved, and significant savings in terms of prosecutorial and judicial resources were still realised.
• [33] The background to the timing of Mr Moheebi’s guilty pleas is, we think it fair to say, somewhat involved. This was briefly canvassed in submissions. It is clear that, until the time Mr Moheebi pleaded guilty, there were significant outstanding questions as to the sufficiency and admissibility of the evidence against him in relation to some charges. There was also, as we understand it, the possibility (which did not eventuate) of Mr Moheebi’s assisting the authorities. It was not obviously unreasonable for Mr Moheebi to not earlier plead guilty.
• [34] Nonetheless there is insufficient basis for us to depart from the Judge’s assessment of the appropriate guilty plea discount. The Supreme Court in Hessell v R noted that sentencing judges ought to be allowed, in a robust manner, to assess the value (in terms of the savings achieved) of a guilty plea in the overall circumstances of each case.^[33] That is precisely what the Judge did in this case and we cannot say 15 per cent is wholly unsustainable.

What is the appropriate overall sentence in this case?

• [35] Adopting the two-stage approach recently endorsed by this Court in Moses v R and previously applied in Royal v R and Chai v R, ^[34] we substitute a starting point of 12 years’ imprisonment and allow, together, discounts of 10 per cent in respect of personal mitigating factors and 15 percent for guilty plea. This produces an overall discount of 25 per cent from the starting point and an end sentence of nine years’ imprisonment.

Was the Judge correct to impose a minimum period of imprisonment of 50 per cent?

• [36] This Court in Zhang emphasised that a minimum period of imprisonment should not be imposed in a routine or mechanistic way and it is not sufficient for a Judge simply to recite s 86 without more. In particular, the Court said that, to the extent a practice of imposing a minimum period of imprisonment in cases attracting an end sentence of more than nine years’ imprisonment had emerged under Fatu — a practice in fact referred to by the Judge here — “such a practice must cease.”^[35]
• [37] We agree with Ms Tulloch that the Judge did not, as required, provide a reasoned analysis of why he considered the purposes of sentencing listed in s 86(2) of the Sentencing Act 2002 could not be adequately achieved by Mr Moheebi’s being eligible for parole, as would otherwise be the case, after serving only one-third of his sentence.^[36] The Judge’s proceeding to impose a minimum period of imprisonment under s 86(2) without providing the necessary reasoned analysis is an error in the sentence under appeal.
• [38] However, the question is whether a minimum period of imprisonment under s 86(2) is nonetheless appropriate. Ms Tulloch submits no minimum period should be imposed as Mr Moheebi is assessed by Corrections as being at a low risk of re‑offending, and his offending does not involve significant commerciality, thereby distinguishing his case from the category of cases for which the Court in Zhang considered lengthy minimum periods of imprisonment are properly reserved.^[37]
• [39] In reply, Mr Davie refers us to this Court’s decision in regard to Mr Zhang himself in Zhang. Mr Zhang was implicated in the importation of 17.9 kilograms of methamphetamine. Mr Zhang’s end sentence was eight years and six months’ imprisonment. His role was placed at the lower end of the ‘significant’ range. Mr Zhang had not only been treated as a first-time offender who was genuinely remorseful, he had entered an early guilty plea and had provided significant assistance to authorities. This Court upheld the imposition of a 50 per cent minimum period of imprisonment in respect of Mr Zhang because of his “knowing participation in substantial, commercial-scale drug offending with potentially very serious social consequences”.^[38] The Court said that “deterrence, denunciation and accountability for commercial-scale drug offending” all required the imposition of a minimum period of imprisonment.^[39]
• [40] Similarly, in assessing the sentence of Mr Zhang’s co-appellant Mr Thompson, who entered an early guilty plea, had a minor criminal history with no previous sentences of imprisonment, and who had supplied only 4.2 kilograms of methamphetamine, but was found to have had a principal role in the offending, the Court considered a 50 per cent minimum period of imprisonment necessary.^[40]
• [41] Obviously, the amount of methamphetamine involved in this case is considerably less than in both those cases. The level of social harm caused by methamphetamine, for which weight remains the proxy measure, is correspondingly less. As a result, the purposes of accountability, denunciation, general deterrence, and community protection are rather less engaged here. At the same time, Mr Moheebi’s role is significantly graver by comparison and his personal characteristics less favourable at least than Mr Zhang’s.
• [42] Overall, while considering the matter finely balanced, we are not satisfied that Mr Moheebi’s being eligible for release after only one-third of his sentence would be insufficient for any of the purposes stated in s 86(2). We consider the assessed low risk of reoffending means that a minimum period of imprisonment is unnecessary for the purposes of specific deterrence or community protection. As to the other s 86(2) factors, even while acknowledging Mr Moheebi’s high-level role, this offending does not amount to significant commercial dealing or importation of the type identified by this Court in Zhang as requiring lengthy minimum periods of imprisonment.
• [43] We also consider this conclusion broadly consistent with recent High Court and Court of Appeal decisions to which Ms Tulloch referred us where no minimum period of imprisonment was imposed under s 86(2) in a range of different circumstances but all involving commercial dealing in Class A drugs.^[41]

Result

• [44] It follows that the appeal against sentence is allowed.
• [45] The sentence of 10 years and five months’ imprisonment with a minimum period of imprisonment of five years is quashed and a sentence of nine years’ imprisonment substituted.
• [46] No minimum period of imprisonment is imposed under s 86(2) of the Sentencing Act 2002.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Misuse of Drugs Act 1975, ss 6(1)(a) and 6(2)(a). Maximum penalty life imprisonment.

^[2] Sections 6(1)(c) and 6(2)(a). Maximum penalty life imprisonment.

^[3] Sections 6(1)(c) and 6(2)(a). Maximum penalty life imprisonment.

^[4] Sections 6(1)(e) and 6(2)(c). Maximum penalty eight years’ imprisonment.

^[5] Sections 6(1)(e) and 6(2)(c). Maximum penalty eight years’ imprisonment.

^[6] Arms Act 1983, s 45(1)(b). Maximum penalty four years’ imprisonment and/or a $5,000 fine.

^[7] Misuse of Drugs Act, ss 7(1)(a) and 7(2)(b). Maximum penalty three months’ imprisonment and/or a $500 fine.

^[8] Sections 13(1)(a) and 13(3). Maximum penalty one year’s imprisonment and/or a $500 fine.

^[9] Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [10(p)] and [188]–[191].

^[10] R v Mohebbi [2018] NZDC 15818 at [29], citing R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).

^[11] R v Fatu, above n 10, at [30].

^[12] R v Mohebbi, above n 10, at [35].

^[13] At [33].

^[14] At [35].

^[15] At [36].

^[16] At [38].

^[17] At [10].

^[18] At [39], citing Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [14].

^[19] At [40].

^[20] At [41]–[43].

^[21] At [45].

^[22] At [47], citing R v Anslow CA 182/05, 18 November 2005 at [27].

^[23] At [51].

^[24] Zhang, above n 9, at [18(e)], [101], and [129].

^[25] At [48].

^[26] At [229]–[245].

^[27] At [125].

^[28] At [239].

^[29] At [136].

^[30] At [163].

^[31] Royal v R [2020] NZCA 129 at [17].

^[32] Edri v R [2013] NZCA 264 at [28].

^[33] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [61].

^[34] Moses v R [2020] NZCA 296 at [46]. See also Chai v R [2020] NZCA 202 at [37]; and Royal v R, above n 31, at [29]. We record that the Judge was not in error in using the three-stage approach to sentencing described in Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298 (CA) as that prevailing at the time of sentencing. However, much as Zhang applies retrospectively in this case, a two-stage approach should now be applied on appeal.

^[35] Zhang, above n 9, at [10(n)] and [164]–[174].

^[36] Parole Act 2002, s 84(1).

^[37] Zhang, above n 9, at [171].

^[38] At [263].

^[39] At [263].

^[40] At [280].

^[41] de Macedo v R [2020] NZCA 132; Joyce v R [2020] NZCA 124; Royal v R, above n 31; and R v Scott [2020] NZHC 68 at [115]. See also R v Wan [2017] NZHC 2376.