R v Latifi [2014] NZHC 2263 (17 September 2014)

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R v Latifi [2014] NZHC 2263 (17 September 2014)

Last Updated: 24 September 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-004-018458 [2014] NZHC 2263

THE QUEEN

v

_{MORTEZA LATIFI}

Hearings:	2 May and 17 September 2014
Counsel:	S L McColgan for the Crown L B Cordwell for the Prisoner
Sentence:	17 September 2014

_{SENTENCE OF DUFFY J}

Counsel: L B Cordwell, Auckland

_{Solicitors: Meredith Connell, Auckland}

R v LATIFI [2014] NZHC 2263 [17 September 2014]

[1] Mr Latifi, you appear for sentence having pleaded guilty to one charge of conspiring to supply a class A controlled drug, namely methamphetamine, under s 6(2A)(a) of the Misuse of Drugs Act 1975. The maximum penalty is 14 years’ imprisonment. You are 46 years of age.

Facts

[2] Your co-offender, Mr Soleymani, was sentenced earlier this year for possession of methamphetamine for supply and possession of pseudoephedrine for supply. He received a total sentence of 15 years, four months’ imprisonment.

[3] Mr da Silva is someone who came to New Zealand from Japan on two occasions for the purpose of accepting deliveries of suitcases containing methamphetamine, extracting the drug from the suitcases, repackaging it and delivering it to Mr Soleymani on two occasions. Mr da Silva was acting under the direction of a man based in the Netherlands whom the New Zealand Police (“police”) refer to as Michael O’Connor.

[4] Mr da Silva first came to New Zealand in February 2012. On that occasion, he made the first delivery of methamphetamine on or about 10 March 2012 and the second delivery on or about 1 April 2012. He then left New Zealand. Mr da Silva returned to New Zealand in September 2012. He was apprehended by the police in October 2012. He agreed to assist the police with their enquiries into the importation and distribution of methamphetamine in New Zealand. He became a protected witness for the Crown. In this role, he carried out one further delivery of methamphetamine, on 15 November 2012, under police supervision.

[5] On the second occasion that Mr da Silva visited New Zealand, he remained in New Zealand for longer than was originally planned, at the request of Mr O’Connor. To do this, Mr da Silva needed additional funds to cover his expenses in New Zealand. Arrangements were made by Mr O’Connor for the delivery of a cash payment to Mr da Silva to cover those expenses while he waited for the November delivery. Mr Latifi, you were the person who delivered the funds to Mr da Silva. By

this time, Mr da Silva had been arrested and he was cooperating with the police, so they were aware of the plans to deliver those funds.

[6] Under covert police surveillance, Mr da Silva met you on 27 October 2012 outside Burger King at Aotea Square. You gave Mr da Silva a bundle of cash, totalling exactly $10,000. You were driving a vehicle registered in your name at the address of 53A Wintere Road, Papatoetoe. After the delivery of money, police followed you to an address in the vicinity of 53 Wintere Road, Papatoetoe.

[7] Mr da Silva was part of an international operation for the importation into, and supply of methamphetamine within New Zealand. Mr Latifi, apart from delivering the $10,000 to Mr da Silva, there is nothing to link you with this operation. Nor was there any evidence that would connect you with the supply or use of methamphetamine when the police searched your home and your person.

Personal circumstances

Prior convictions

[8] In terms of your personal circumstances, you have prior relevant convictions. In 2006, you were convicted and sentenced for importing methamphetamine and amphetamine, and possession for supply of methamphetamine and amphetamine. The offending took place in 2005. You received a concurrent sentence of seven years’ imprisonment. In 2010, you were convicted and discharged for breaching release conditions.

Pre-sentence report

[9] In the pre-sentence report, you confirmed that you reside at

53A Wintere Road with your wife and your two and a half year old son. Your wife works full-time, and you are the main caregiver for your son from Monday to Friday. You work part-time for a landscape contractor and you are hoping to secure permanent full-time employment. You are currently studying at the

Open Polytechnic. You hope to obtain your full driver’s licence and to gain a good grasp of the English language prior to securing full-time work.

[10] In response to the report writer’s questions about the conspiracy conviction, you disputed that you were involved with organised crime. Instead, you maintained your innocence. You told the report writer that you were asked to deliver some money on behalf of your wife’s aunt’s boyfriend. You told the report writer that you asked whether the favour was to further criminal activity, and that you were told that it was not. As this man is Iranian, you said you took him at his word. You said you pleaded guilty because your lawyer told you it was the best thing to do.

[11] You disputed that the nature of the texts and phone calls that you made leading up to the offending were of a criminal nature. You expressed regret at being involved. You attributed your actions to being the result of your loyalty to your wife and her family.

[12] The report writer assessed you as being at a medium risk of reoffending, based on your drug-related conviction history. The report writer noted your lack of accountability for your offending as representing a continual pattern of blame shifting. You admitted that the circumstances of your previous offending were of a similar nature, but you disputed the previous charges in your conviction history.

[13] You are described as being motivated and willing to comply with any sentences and conditions as directed by the Court. The report writer attributed your motivation to comply to being partly driven by your wish to avoid a term of imprisonment, which would adversely impact on your family.

[14] The report writer recommended a sentence of imprisonment.

[15] Mr Latifi, I do not know why you have continued to deny involvement in this offending, when you have very sensibly pleaded guilty to it. I do not know whether that demonstrates a lack of accountability, or whether, for some other reason, you found it difficult when you were interviewed by the report writer to own up to the extent to which you were involved. I am prepared to give you the benefit of the

doubt and to consider that you are prepared to be accountable for your conduct, and that you will at least try to avoid reoffending in the future.

Home detention assessment

[16] In terms of home detention, you nominated your address at

53A Wintere Road, Papatoetoe, for an electronically monitored sentence. This address has been assessed as suitable and home detention is an option available to the Court. However, the report writer noted that the suitability of the address did not affect the recommendation of imprisonment as provided in the pre-sentence report.

[17] The report also sets out proposed conditions of community detention and home detention.

Submissions

Crown submissions

[18] The Crown initially filed submissions that suggested a more severe sentence than it now submits is appropriate.

[19] The Crown now accepts that the original submissions that it filed drew upon facts to which you did not plead guilty. As a result, supplementary submissions have been filed.

[20] In the supplementary submissions, the Crown concedes that the evidence does not prove the level of your knowledge and, on that basis, the Crown suggests that the default level of knowledge is that of wilful blindness. However, the Crown says it is inconceivable that you did not know what type of offending you were engaged in and the purpose of your involvement, for a number of reasons.

[21] First, you have a prior conviction of methamphetamine offending, which involved Iranian and Japanese links; the same links as in the present offending. Secondly, the nature of the delivery of money was furtive and clandestine; you had direct interactions with Mr O’Connor, who controlled every facet of the meeting as

an intermediary between you and Mr da Silva. Further, you were contacted at short notice and were asked to deliver cash to someone whom you did not know in a public place, and you took active steps to keep the hand-over clandestine.

[22] The Crown acknowledges that you were not a trusted courier of the money, which, in my view, was evident from intercepted communications between Mr da Silva and Mr O’Connor. The Crown also accepts that you did not feature in any police surveillance at any time before the hand-over or again afterwards. I note that the transcript of communications between Mr O’Connor and Mr da Silva includes a conversation where Mr O’Connor is talking to Mr da Silva about the meeting where the money was handed over. He specifically advises Mr da Silva about you, saying: “The guy you met the other day, he just for the money, he not involved in the business”. The Crown acknowledges that no other indicia of methamphetamine dealing were located when a search of your address was conducted.

[23] The Crown agrees with defence counsel that there is no evidence that you knew how much cash you would be delivering, or how much methamphetamine was involved. Further, there is no evidence to support an inference that you were to be rewarded for the role that you undertook. The Crown concedes that, but for your prior drug conviction, the evidence against you could have been explained to the jury as you being unwittingly co-opted into an endeavour unknown to you.

[24] In light of those factors, the Crown submits that the proper inference to be drawn is that your role was ad hoc and was not part of the wider offending. Rather, it was of short duration and very limited in nature. Therefore, the Crown submits, you should be sentenced on the basis of a low level of culpability, with a recognition that you must have been, at least, wilfully blind to what you were engaged in.

[25] The Crown submits that the conspiracy sentencing cases cited in the original submissions, such as R v Te Rure [2007] NZCA 305, [2008] 3 NZLR 627, are of limited assistance or no assistance, due to the limited nature of your role. The Crown cites the cases, R v Reihana HC Whangarei CRI-2010-027-143, 12 December

2011 and R v Forward [2013] NZHC 3442, as being comparable to your own role

and submits a starting point of between two years and three months’ imprisonment and two years and seven months’ imprisonment is appropriate.

[26] The Crown submits that an uplift of between six to eight months’ imprisonment is appropriate to recognise your previous methamphetamine convictions and the recurrent offending while on parole, though I note today that Mr McColgan referred to an uplift of three months’ imprisonment.

[27] In terms of the guilty plea, the Crown submits that the propensity evidence was pivotal and that you were entitled to challenge the admissibility of that evidence. While the plea was late, it came promptly after an accommodation by the Crown. In such circumstances, the Crown submits that a reduction of up to 20 per cent is appropriate.

Offender’s submissions

[28] Mr Latifi, your counsel submits that there are no aggravating features of the offending. You did not come into contact with any methamphetamine, nor did you play an active role in the actual importation. Your sole role was to facilitate the transfer of an unknown sum of money. Therefore, your counsel says, the offending can be described as a low gravity offence.

[29] In terms of mitigating factors, your counsel submits that that you are deeply remorseful and regret your involvement. I note those feelings were not perceived by the pre-sentence report writer. Further, your counsel says your familial circumstances and desire to change mean you are at a low risk of reoffending. Your counsel refers to a letter of support from a Garry Muir that attests to your good character, your wife’s dependency upon you insofar as she is a Vietnamese national, who has limited English, and she works to provide the family’s income. Mr Muir also refers to your regular church attendance, and your efforts to improve your life to avoid reoffending.

[30] As another mitigating factor, your counsel refers to your reoccurring heart issues and the fact that you suffer from Crohn’s disease, though this is not consistent with your comments to the pre-sentence report writer that you are in good health.

[31] Your counsel accepts that the importation operation was significant and commercial. However, given your low degree of involvement, your counsel submits that the tariff decision of R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA) is of limited applicability. To place the offending in band two, it is submitted, would create an unduly harsh outcome; and, therefore, a more individual approach to sentencing should be adopted.

[32] Your counsel accepts that the quantity of methamphetamine that was involved in this drug operation is significant, but seeks to minimise your role in the operation by reference to your limited involvement, which was being requested to deliver money on the day of delivery and, until then, you had no proper knowledge of the operation. For those reasons, your counsel submits that a starting point of two years and six months is appropriate and is in line with R v Reihana.

[33] Your counsel submits that a 33 per cent discount is warranted for the guilty plea, remorse and your personal circumstances, including the fact that you are required to care for your young son. Your counsel submits that this discount will bring the sentence within the range of home detention, which is suitable for your health and it would allow you to continue your family obligations. Your counsel submits that your wife would be significantly burdened, should you be imprisoned. Your counsel submits that a sentence of 12 months’ home detention is appropriate in all the circumstances.

Principles and purposes of sentencing

[34] Mr Latifi, in order to determine an appropriate sentence, the Court must take into account the relevant purposes provided for in s 7 of the Sentencing Act 2002. These include: the need to hold you accountable for the harm done to the community by your offending; to promote in you a sense of responsibility for, and acknowledgement of, the harm of your offending; to denounce and deter your

conduct; to protect the community; and to assist in your rehabilitation and reintegration.

[35] Regarding the principles of sentencing under s 8 of the Sentencing Act, the Court must take into account the gravity of the offending, the seriousness of the type of offence, consistency with appropriate sentencing levels and similar offenders who have committed similar offences; and the need to impose the least restrictive outcome appropriate in the circumstances.

Sentencing approach

[36] There is a three-stage approach to sentencing. First, the appropriate starting point is set. Secondly, allowance is made for personal aggravating and mitigating factors; and finally, there is a discount for a guilty plea: see Hessell v R [2010] NZSC

135[2010] NZSC 135; , [2011] 1 NZLR 607 and R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23.

Setting a starting point

[37] In setting a starting point, this Court has to be consistent with previous comparable cases.

[38] In most conspiracy cases where the quantity of methamphetamine that is the subject of the conspiracy is known, the settled approach under R v Te Rure is to set a “supply” starting point, based upon the bands in R v Fatu, and to then apply a discount to account for the conspiracy element of the offending. However, I agree with the Crown and your counsel that Fatu and Te Rure are of limited assistance in this case where it is accepted that you had no knowledge of the scale of the operation, how much money you were to deliver, and the purpose of the delivery of money. Therefore, it is difficult to set a supply starting point.

[39] The Court of Appeal in R v Henry (1997) 1 NZLR 150 (CA) sets out the general approach to sentencing for conspiracy. The Court there emphasised that in assessing culpability or blameworthiness, the nature and scope of the conspiracy and

the extent to which the offender participated and assisted in it, must be relevant considerations.

[40] The Supreme Court in R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 confirmed that the appropriate sentence for conspiracy is highly dependent on the seriousness of the offending:

[11] Mr Jarden is not, on the present facts, assisted by having been convicted on a charge of conspiracy to supply rather than supply itself. As the Court of Appeal pointed out in R v Te Rure, the seriousness of the offending may well increase as a conspiracy comes closer to execution. Indeed upon execution, and while weight must be given to the higher available penalties for supply rather than conspiracy to supply, the element of conspiracy in some circumstances may be seen as aggravating the seriousness of the offending rather than mitigating it. In the present case, matters had plainly progressed well beyond the planning stage to the point where Mr Jarden had purchased methamphetamine for the purpose, at least in part, of on-supply.

Relevant cases

[41] In R v Jarden, the offender was found guilty by a jury on one count of conspiring to supply methamphetamine. The offender had purchased methamphetamine on at least two occasions, which was then on-sold. The sentencing Judge, Fogarty J, considered that (see R v Jarden HC Christchurch CRI-

2005-009-1376, 18 June 2007) at [3]:

[3] ... I am satisfied that the Crown proved beyond reasonable doubt that you were buying methamphetamine more than once and more than just as a user. However, it is not possible, in my view, to take the evidence confidently much further, as to how much you were buying, and beyond more than at least buying for supply on two occasions.

[4] ... it is very difficult and dangerous to try and fit this case into the R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 because of real doubts as to the issues of quantity. But it can be fitted into a commercial drug dealing setting.

...

[6] As these remarks indicate, Mr Jarden, it is quite difficult to confidently assess the level of culpability in your case. While I can understand the Crown submitting a starting point of around four to five years imprisonment, I am persuaded, because of the general difficulties over the extent of the quantity of your dealings, that I should err on the cautious side and settle the level of your offending as warranting a starting point at around three years. ...

[42] The Supreme Court upheld the starting point of three years’ imprisonment adopted by Fogarty J, but reduced the sentence to two years and six months’ imprisonment to account for personal circumstances.

[43] In R v Reihana HC Whangarei CRI-2010-027-143, 12 December 2011, the offender pleaded guilty to 11 charges of conspiring to supply methamphetamine. The offender’s role was limited to collecting payment for methamphetamine, sold by the offender’s partner, on his way home from work. Each charge related to a different transaction, and nearly $20,000 worth of methamphetamine was involved in the period of offending that spanned five to six months.

[44] Peters J adopted a supply starting point of three years’ imprisonment. However, a 15 per cent discount on this starting point was given to reflect the conspiracy element of the offending. This brought the starting point down to two years and seven months’ imprisonment.

[45] In R v Tanginoa [2012] NZHC 3504, a co-offender, Mr Afeaki was involved in the conspiracy to a limited extent. He faced one charge of conspiracy to supply methamphetamine. It was unclear whether Mr Afeaki knew the extent of the quantity of methamphetamine proposed to be imported. However, he was aware that the money that he arranged to borrow from a co-offender, Mr Mafi, was intended to be used to purchase methamphetamine, and he anticipated that he would receive a financial reward for his part in the offending. Potter J adopted a starting point of one year and 10 months’ imprisonment, and imposed an end sentence of 11 months’ home detention and 120 hours’ community work.

[46] In R v Popenhagen HC Christchurch CRI-2006-009-15722, 14 March 2008, Fogarty J sentenced eight co-offenders to various methamphetamine related offences. The offenders were involved in a well-organised syndicate sourcing methamphetamine from Auckland, transporting it to Christchurch for distribution and sales. In respect of Mr Popenhagen, he was a truck driver, who regularly travelled to Auckland and became “an integrated part” of the conspiracy: [30]. However, Mr Popenhagen was unaware of the quantities he was transporting, though it was proved that he was involved in transactions of very large amounts. For the

lead offence of conspiracy to supply methamphetamine, a starting point of two years’ and six months’ imprisonment was adopted. Fogarty J was satisfied that Mr Popenhagen fell into the offending because of long-term friendships and that the risk of reoffending was low. As a result, the end sentence was 12 months’ home detention.

[47] The Crown also cited R v Forward where Mr Forward was sentenced to one charge of possession for supply of methamphetamine. Mr Forward was a simple courier of one ounce of methamphetamine. He was to receive payment for his services in the form of methamphetamine for his own use. Lang J adopted a starting point of two years and three months’ imprisonment. The end sentence imposed was one of 10 months’ home detention.

_Analysis

[48] In your case, Mr Latifi, $10,000 was provided to Mr da Silva to cover his expenses between October 2012 and the staged delivery of methamphetamine on

15 November 2012. Mr O’Connor intended Mr da Silva to deliver a large quantity of methamphetamine, approximately two kilograms, to someone, who it turned out to be Mr Soleymani, on that date.

[49] The Crown accepts that there is no evidence that you knew of the sum of money that you were to deliver, or the scale of the illicit methamphetamine operation. Thus, you are to be sentenced on the basis that you were someone who was wilfully blind to the implications of meeting with another person whom you did not know, in a public place, to hand over an unknown sum of cash. That meeting was arranged by an intermediary who spoke with you on the day of the meeting to enable it to take place. Those circumstances would appear suspicious, from an objective point of view.

[50] Your involvement was ad hoc, and it was a one-off instance. On the other hand, in its written submissions, the Crown has sought to persuade me that if you knew that you were delivering $10,000, then it may be appropriate to ask what you could have expected the size of the supply to be on the basis of the $10,000

delivered. The Crown then went on to make submissions regarding the amount of methamphetamine that at street level the sum of $10,000 could purchase. From this, the Crown suggested that I should adopt a starting point for “what could reasonably be expected to amount to $10,000 worth of methamphetamine”, which led the Crown to suggest a starting point of between two years, three months’ imprisonment and two years, seven months’ imprisonment. I find this submission unhelpful. I raised it with Mr McColgan this morning, and he explained that it was the best attempt to provide something comparable to the circumstances of your offending. The reason I find this submission unhelpful is because the funds you provided were clearly not used in the purchase of methamphetamine. I do not see, therefore, why I should approach them as if they were used in this way. I also consider that it would be wrong to approach your sentencing by taking into account the amount of methamphetamine that $10,000 could buy at street level, as an indicator of an appropriate starting point. Such a notion is unrelated to your offending. Further, the Crown accepts that you did not know the sum involved, which is another reason why I do not think I should sentence you by adopting a starting point that reflects the quantities of methamphetamine that $10,000 can acquire at street level.

[51] The concessions that the Crown has made at this sentencing leave me in the position where I regard you as having a one appearance bit part in this illicit drug operation. In all, the case against you is that on one occasion, you were wilfully blind to the fact that you were helping one of the more involved operatives in this illicit operation to carry out his role. As such, apart from the sentencing of Mr Afeaki in Tanginoa, your involvement strikes me as being less than that of the persons in the comparable cases to which I have been referred. Your involvement is less culpable than Mr Popenhagen and the offending in R v Reihana, where the offenders there were more aware of their actions and were involved for a longer period of time. Therefore, for me to be consistent with the starting points that were adopted in those cases, I consider that I should adopt a starting point that is lower than the starting points that were adopted in those cases. I propose, therefore, to adopt a starting point of two years’ imprisonment.

Adjusting the starting point

[52] I now have to consider aggravating and mitigating factors that are personal to you.

[53] The aggravating factors identified by the Crown are previous convictions

(s 9(1)(j)) and offending while on parole (s 9(1)(c)).

[54] In 2006, you were convicted of importing methamphetamine and amphetamine, and possession for supply of methamphetamine and amphetamine. In the pre-sentence report, you appear not to take responsibility for your past offending, but admit that the previous offending was of a similar nature to the offending in the present case. In the written submissions, the Crown seeks an uplift of between six and eight months for both aggravating factors.

[55] The Court of Appeal in Tiplady-Koroheke v R [2012] NZCA 477 at [24] recognised that there must be proportionality between the starting point and any uplift for previous offending. In that case, the Court reduced a six month uplift to three months on a starting point of two years.

[56] I propose to adopt an uplift of three months to reflect your earlier offending, and a further uplift of three months to reflect you breaching parole conditions. Thus, the total uplift for all aggravating factors comes to six months’ imprisonment. The uplifts are not to re-punish you for past convictions, but to instil in you a sense of accountability and to deter future offending. This brings the sentence to two years and six months’ imprisonment.

[57] Your counsel says that you are remorseful, and your personal familial circumstances warrant a discount. I have rejected that contention because I doubt, or I am not sure that there is genuine remorse in your case. It is clear from the pre- sentence report that you maintain your innocence in regards to this offending. Whilst you may well regret the predicament that you are in, I am not convinced that you have taken full responsibility for your actions, or that you feel any genuine remorse of the type that would warrant specific recognition.

[58] With regards to your personal circumstances, there is a difference between what you said to the pre-sentence report writer about your health, and what your counsel has said to me. In the absence of corroborating evidence, I am not convinced that you suffer from poor health that would warrant a discount. Though I accept there is the need to look after your son, and I accept your imprisonment would have a detrimental impact on your wife, I refer to the Supreme Court decision in Jarden where it was said at [12]:

[12] ... in sentencing those convicted of dealing commercially in controlled drugs the personal circumstances of the offender must be subordinated to the importance of deterrence.

[59] I realise you have not been convicted of dealing commercially, and that your role in this commercial operation was very small. But I still think that what is said in Jarden is relevant. So, I am satisfied that no discount is warranted for your personal circumstances.

Guilty plea

[60] In the supplementary submissions, the Crown accepts that you were entitled to challenge the admissibility of the propensity evidence, and that a discount of up to

20 per cent could be available for your guilty plea. Your counsel does not explicitly say what discount should be awarded for the guilty plea but considers a 33 per cent discount should be granted for the totality of the mitigating factors.

[61] The Supreme Court in R v Hessell said at [75]:

[75] The reduction for a guilty plea component should not exceed 25 per cent. That upper limit reflects the fact that remorse is dealt with separately. Whether the accused pleads guilty at the first reasonable opportunity is always relevant. But when that opportunity arose is a matter for particular inquiry rather than formalistic quantification. A plea can reasonably be seen as early when an accused pleads as soon as he or she has had the opportunity to be informed of all implications of the plea.

[62] Your counsel accepts that the guilty plea did not come at the first available opportunity.

[63] Here, I am going to adopt the Crown’s suggestion that a 20 per cent discount is appropriate. This seems to me to be a proper reflection of the circumstances surrounding the entry of the guilty plea. This discount brings the end sentence to one of two years’ imprisonment.

Home detention

[64] The end sentence that I have come to is a short-term sentence of imprisonment: see s 4(1) of the Parole Act 2002. This makes home detention a sentencing option that is open to this Court: see s 15A of the Sentencing Act.

[65] Further, under s 15A of the Sentencing Act, home detention can only be imposed if the Court is satisfied that it is the least restrictive sentence in the circumstances.

[66] In R v Reihana, Peters J adopted a sentence of 12 months’ home detention as the offender was considered to be at a low risk of reoffending. The “most compelling factor” was that home detention would allow him to continue to look after his son, whom he had sole custody over.

[67] Your counsel also relies on R v Hill [2008] NZCA 41, [2008] 2 NZLR 381, where the Court of Appeal said at [39]:

[39] Cases involving the supply of methamphetamine vary greatly — from sophisticated, large-scale commercial operations undertaken by persons whose motivation is financial, to cases involving addicts who deal in a small way to friends or acquaintances essentially as a by-product of their own use and involvement in the drug sub-culture. End sentences that meet the definition of “short-term sentence” for the purpose of s 15A are only likely to be imposed in cases at the lower end of the spectrum. (The same is true for the purposes of s 57.) In this type of case, we consider that a sentencing judge may properly give significant, even decisive, weight to the prospects for rehabilitation. This will be particularly so if the assessment that there are good prospects for rehabilitation is based not simply on conjecture or expressions of intent or hope but on evidence which demonstrates that the offender has made a real commitment to change and is working towards that in specific and realistic ways.

[68] In that case, a sentence of home detention was substituted for a sentence of imprisonment, as the offending was at the low end of the spectrum of commercial

drug offending. In addition, there was strong evidence that the appellant had committed himself to dealing with his drug addition, had started addressing personal issues that caused him to enter the drug subculture, and was able to serve home detention in a supportive environment.

[69] The factors that weigh in favour of you being sentenced to home detention, Mr Latifi, are:

(a) The minor role that you played in this illicit drug operation;

(b) The child care responsibilities that you already carry out regarding your young child;

(c) The difficulties it would pose for your wife (who is the family income provider, and who struggles with the English language) if you were sent to prison; and

(d) The efforts that you appear to have made since your first drug-related conviction to turn your life around as outlined in Mr Muir’s letter to the Court. His letter is somewhat more hopeful of you reducing the risk of reoffending than was the pre-sentence report writer.

[70] Those factors satisfy me that, in your case, a sentence of home detention is appropriate. However, I am also satisfied that a sentence of home detention of

12 months is the least restrictive sentence in the circumstances.

Sentence

[71] Mr Latifi, please stand.

[72] On the charge of conspiring to supply methamphetamine, you are sentenced

to 12 months’ home detention. I impose the following conditions:

(a) Upon receipt of your Court order, you are to travel directly to

53A Wintere Road in Papatoetoe, and await the arrival of the

probation officer and the representative from the electronic monitoring company.

(b) You are to reside at 53A Wintere Road in Papatoetoe and not move to any new residential address without the prior written approval of a probation officer.

(c) You are not to possess, consume or use any alcohol or drugs not prescribed to you.

(d) You are to attend an assessment for an alcohol and drug programme as directed by a probation officer. You are to attend and complete any counselling, treatment or programme as recommended by the assessment as directed by, and to the satisfaction of a probation officer.

(e) You are to attend and complete an appropriate programme in order to address your offending behaviour to the satisfaction of a probation officer. The specific details of the appropriate programme shall be determined by a probation officer.

Post-detention conditions

[73] In terms of post-detention conditions:

(a) You are to attend an assessment for an alcohol and drug programme as directed by a probation officer. You are to attend and complete any counselling, treatment or programme as recommended by the assessment as directed by, and to the satisfaction of a probation officer.

(b) You are to attend and complete an appropriate programme in order to address your offending behaviour to the satisfaction of the probation officer. The specific details of the appropriate programme shall be determined by a probation officer.

[74] Mr Latifi, I gained the impression from the pre-sentence report writer, from Mr Muir’s letter, and from your counsel’s submissions that this present offending happened quickly. You were asked to do something; you responded straightaway, perhaps without properly thinking about it, and because you thought you owed various loyalties to people. You are now at a stage where you have two convictions for serious class A drug offending. This time you have not received a custodial sentence. But if you reoffend again, particularly in relation to class A drugs, even in a minor way, then it is most likely that the next sentence will be a sentence of imprisonment. You should bear that in mind.

[75] Stand down please.

Duffy J