R v Ishak [2014] NZHC 2027 (26 August 2014)

Last Updated: 3 September 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-092-13378 [2014] NZHC 2027

THE QUEEN

v

_{FIONA ISHAK}

Charge: Plea:	Possession of Class A drug for supply Guilty
Counsel:	K Raftery for Crown KH Maxwell for Prisoner
Sentenced:	26 August 2014

_{SENTENCING NOTES OF BREWER J}

Solicitors/Counsel: Meredith Connell (Auckland) for Crown

Kathryn Maxwell (Auckland) for Prisoner

R v ISHAK [2014] NZHC 2027 [26 August 2014]

Introduction

[1] Ms Ishak, I have to sentence you on one charge of possession of methamphetamine for supply. The quantity is 1.5 kilograms. Its street value is

$1.5 million.

Facts

[2] The facts can be set out simply.

[3] A Mr Miranda was intercepted at Auckland International Airport in possession of the methamphetamine. He agreed to help the Police find the people who had arranged for it to be imported. It seems one of those people was Mr Obiaga, a man who you worked with and who you considered to be a good friend. Mr Obiaga did not want to personally arrange with Mr Miranda for the handover of the methamphetamine. He wanted to keep his distance. So, he got you involved.

[4] Your role, Ms Ishak, was to make telephone calls. On 20 November 2013, you telephoned Mr Miranda using a mobile phone provided by Mr Obiaga. You told Mr Miranda that your name was Suzanne and that you were the partner of Alfred – the man who Mr Miranda expected to collect the methamphetamine. You said Alfred was overseas and gave Mr Miranda details of a Western Union money transfer for

$500. You rang Mr Miranda again, later that evening, asking to see him at his house. He was unavailable and so you said you would contact him about a meeting the next day.

[5] The next day, 21 November 2013, a meeting was arranged by Mr Obiaga by text message using the name Suzanne. Mr Miranda duly went to the meeting place and waited. You then telephoned Mr Miranda to say that Alfred would be there shortly to get the package. You made this call from a pay phone because you did not have Mr Obiaga’s phone and you did not want to use your phone.

[6] The handover did not go as planned because the man Mr Obiaga sent did not have the code phrase Mr Miranda was expecting him to use. Another participant in

Mr Obiaga’s group, Nancy Leefe, got you to ring Mr Miranda to find out what had

gone wrong. He told you.

[7] Later, Ms Leefe got you to telephone Mr Miranda again to confirm that he

should hand the bags over to Mr Obiaga’s man. He did.

[8] By this time you were in a car with Ms Leefe. You were in the vicinity of the handover of the bags and you watched Mr Miranda get on a bus and leave.

[9] Ms Ishak, there is no suggestion that you ever actually possessed any of the methamphetamine. There is no suggestion that you got any money from your part in the offending. You were helping a friend. You knew that what you were doing involved methamphetamine, but I accept that you did not know how much. You even lent $200 to Mr Obiaga to enable him to pay Ms Leefe to help with the handover. You were not involved in the drugs world in any way, and you are not a user of drugs yourself. You were just asked to help and, very naïvely, you did. At first you thought that maybe 28 to 30 grams of methamphetamine were involved, but as time went on you knew it was more serious than that and you were already committed to help.

The law

[10] Ms Ishak, the law gives me little choice in how I must sentence you. That is because there have been so many cases of serious drug offending that the law is very clear on how offenders must be dealt with. When it comes to serious drug offending, the purposes of holding the offender accountable for the harm done to the community, denouncing the offending and deterring the offender and others from further offending are predominant.

[11] I have been referred to quite a number of previous cases by the lawyers in their written submissions. I have considered them all. I know that you just want to be told your sentence and so I will not go through the cases with you. I will note the

cases in my written sentencing notes,¹ but what I will try and do now is let you know the basis for my sentence.

[12] There is a decision of the Court of Appeal called R v Fatu.² It sets out sentencing bands for methamphetamine offending based on the amount of methamphetamine involved. Where 1.5 kilograms of methamphetamine are involved then band 4 applies. The sentencing range in band 4 is 10 years through to life imprisonment.

[13] It is true, as your lawyer has emphasised, that when I look at where you fit within the bands, I can look at the role you played rather than just take account of the quantity of methamphetamine.

[14] Ms Ishak, your role puts you towards the lowest level of participation for this sort of offending. You were not involved in the importing. You were not a courier and you never had actual possession of any of the methamphetamine. You were not a crucial player whose involvement was of critical importance. You were just a person who was being used by Mr Obiaga so as to distance himself from the handover. If you had refused to help him it would have made no difference to the handover.

[15] Your lawyer asks me to adopt a starting point in band 2 of Fatu, which is three to nine years’ imprisonment. Ms Maxwell submits that this is justified because you did not know how much methamphetamine was involved and did not even realise it was a commercial amount. I am afraid I cannot accept that submission. In my view, the law simply does not allow that. I think the Crown is correct in its submissions and that given your repeated telephone calls, and physical presence on the day of the handover, the best I can do is adopt a starting point at the lowest end

_{of band 4, namely 10 years’ imprisonment.}

¹ R v Wickremasinghe HC Auckland T013408, 28 March 2003; R v Javid HC Auckland CRI-2005-

004-14044, 4 September 2007; R v Araki HC Auckland CRI-2008-004-2758, 10 June 2008; R v Law HC Auckland CRI-2008-004-6039, 13 May 2008; Clarke v R [2013] NZCA 473; R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612; Ong v R [2012] NZCA 258; R v Hadfield CA337/06, 14 December 2006; R v Arthur [2005] 3 NZLR 739; R v Gemmel [2012] NZHC

2488; R v Bridewell HC Auckland CRI-2007-057-251, 3 July 2008; Hastings v R [2011] NZCA

_105.

² R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).

[16] I realise that this is more than the eight years starting point given as a sentence indication by Brown J on 3 June 2014.³ However, you did not indicate acceptance of that indication until just after the expiry of the statutory period. Looking, in particular, at a very recent decision of the Court of Appeal which reinforces the approach to be taken to sentencing where serious quantities of drugs are involved,⁴ I conclude that this is the appropriate starting point.

Personal factors

[17] I now turn to consider how factors personal to you might influence the starting point. First, I note that you have no previous convictions. This is the first time you have been before the Court.

[18] Second, you have a very good character. The pre-sentence report and the many testimonials I have for you make that clear.

[19] You are a 38 year old woman of Fijian Indian descent. You have three daughters, one of whom has a serious skin condition which has required hospitalisation from time to time. You live with the father of your children. He has a serious mental health condition requiring medication and that has been a significant strain on you. Your family depends on you to an extent beyond the normal.

[20] For 20 years you have worked as a carer for people with intellectual and/or mental health problems. During these 20 years, you were employed by IDEA Services (formerly IHC). You have lost your job because of this offending.

[21] It is evident that you are a compassionate, caring person who has gone well beyond your paid role. For example, one lady has had your support for six years as a volunteer for her son who has cerebral palsy and hydrocephalus. Your older sister writes:

Fiona has tirelessly dedicated her time as a caregiver of mentally and physically disabled people, and many times has brought her clients to our

³ _{R v Ishak and Leefe [2014] NZHC 1228.}

⁴ R v Wang [2014] NZCA 409.

family functions for birthdays and celebrations. Our family have become well acquainted and very fond of some of her clients.

[22] As I said, you do not drink or take drugs yourself. You became involved in this offending because Mr Obiaga worked with you at IDEA Services and you regarded him as your good friend. A consistent theme in the reports I have of you and the testimonials I have received is that you are naïve and by nature compelled to help others. Your likelihood of reoffending is assessed as low because you have a very deep sense of shame and remorse. You are very well aware now of the danger of getting involved with people in the drugs world.

Discussion

[23] Unfortunately, when it comes to sentencing for serious drug offending, the law does not permit personal circumstances to be given much weight at all. In fact, in most sentencings, they are given no weight. I think your case is exceptional and I will give you a discount of six months. That takes the starting point to nine years and six months.

[24] I am entitled to take into account genuine remorse as a factor meriting a discount in sentence. I accept that your remorse is heartfelt and genuine. You became involved in this offending without thought of commercial gain and without giving any real thought of what you were actually doing. I accept the submission that you were horrified when you realised the full implications of your actions. You are not a person who has been involved personally in drugs, and your partner’s experience with cannabis has not been positive. I am going to give you a discount of five per cent for remorse. That takes the starting point to nine years.

[25] I can take into account also your plea of guilty and all the circumstances surrounding it. Those circumstances were made clear yesterday in written material I received from the Crown. Among the conclusions I draw is that you should receive full credit for your plea of guilty despite the delay in entering it. That is because you accepted your responsibility right from the outset, and there was never any question that you would not enter a guilty plea. The associated circumstances, which include your promised actions, also warrant the maximum discount I can allow.

[26] Taken together, I fix an end sentence of four years’ imprisonment – which represents a 60 per cent reduction from the start point.⁵

Result

[27] Ms Ishak, on the charge of possession of the Class A controlled drug methamphetamine for the purpose of supply, I sentence you to four years’

_{imprisonment. You may stand down.}

_{Brewer J}

⁵ R v Hadfield, above n 1.