IN THE DISTRICT COURT AT AUCKLAND CRI-2012-009-006015 THE QUEEN WALID NASER SLAIMANKHEL KHALID NASER SLAIMANKHEL Hearing: 4 Deceber 2014 Appearances: Walker for the Crown Ryan for the Defendants Judgment: 04 December 2014 NOTES OF JUDGE PA CUNNINGHAM ON SENTENCING Walid and Khalid Slaimankhel who are brothers both appear for sentence today. On 10 September 2014, they entered guilty pleas to an amended indictment. Mr Khalid Slaimankhel entered guilty pleas to selling a Class controlled drug between 1 January and 22 May 2004 and offering to supply the Class controlled drug, methadone to Phillip Musson. Mr Walid Slaimankhel pleaded guilty to selling a Class controlled drug, the same dates as mentioned for his brother, supplying the Class drug methadone to Phillip Musson, possessing the Class controlled drug methadone and possessing of a Class controlled on 22 May 2012 and offering to supply methamphetamine between the same dates, 1 January and 22 May 2012. Two other people involved in this Class drug production and supply operation have already been sentenced, a Mr etwah who was the manufacturer of WALID NASER SLAIMANKHEL KHALID NASER SLAIMANKHEL DC CR1-2012-009-006015 [04 December 2014] the pills was sentenced in the High Court by Venning on 20 September 2012. Mr Musson was sentenced by me in this Court on 19 August 2014. I described Mr Musson as the mastermind of the operation and he is the person who is the recipient of the methadone. Mr Jetwah was sentenced to 12 months? home detention. Mr etwah and Mr Musson organised for a Class analogue to be imported into New Zealand, it being an analogue of the active ingredient in ecstasy which are commonly referred to as ?party pills.? These party pills were sold around the Auckland scene and the sellers of the pills were Mr Walid and Mr Khalid Slaimankhel. A search warrant was executed in relation to Mr Walid Slaimankhel at his address in Auckland and he was found in possession of some of these party pills and also 72.7 grams of liquid methadone which is a controlled drug, Class and other paraphernalia such as mobile phones which indicated that he had been indeed, selling these pills to other persons. For the purposes of this sentencing exercise, Mr Walid Slairnanldiel has acknowledged responsibility for 45,000 of these pills. Mr Khalid Slaimankhel was also the subject of a search warrant at his address in Auckland and the police located mobile phones and SIM cards which implicated him in the operation. The number of pills for the purposes of Mr Khalid Slaimankhel?s sentencing today is 52,000 of these party pills. He has also pleaded guilty to offering to supply methadone and the evidence around this was a text message from his cellphone. I should explain the role that methadone has played in this offending and it is as follows. That Mr Musson who was, as I have said, was the mastermind of the operation, was seeking methadone from both Slaimankhel brothers as an incentive to supply them with certain amounts of pills. I know, from having sentenced Mr Musson, that he had developed a dependency on morphine and the securing of methadone was related to his morphine addiction. It will already be obvious that this offending is some two and a half years? old and the process through the Court has had a rather chequered history. I gave a sentence indication in this matter, it was back in January 2014, to both of the Slaimankhel brothers and also Mr Musson. Mr Musson accepted that sentence indication, but Walid and Khalid Slaimankhel did not. [10] Problems from their point of view included some dispute over the number of pills they were said to be responsible for, that is the Class offending and in relation to Mr Khalid Slaimankhel, there was a dif?culty around the methadone offending. He was initially charged with supplying Class B. That last matter has been resolved by an amendment to a charge of offering to supply and one of the reasons (I am told by Mr Ryan), that he abandoned what was going to be a disputed facts hearing over the number of pills, was referred in a minute I prepared on 29 August 2014. [11] That was prepared by me for the purposes of receipt by Mr Ryan and the Crown. In it, I pointed out that there was going to be a reduction from the starting point, because of the changes to the methadone offending and I also asked that a copy of my sentencing notes in relation to Mr Musson were provided to Mr Ryan. [12] The reason for that is that I allowed a further discount from the starting point for Mr Musson?s sentencing because of a submission that was made by his counsel at the sentencing hearing. And that was that there ought to be some parity between Mr Jetwah and Mr Musson, because Mr Jetwah received a non-custodial sentence. [13] At the sentencing of Mr Musson, I was not exactly clear how the sentencing Judge had reached a sentence of home detention for Mr Jetwah. That has now been made clear to me by Crown counsel. Absent that knowledge I was persuaded that there ought to be a further reduction to Mr Musson?s sentence, to achieve some kind of parity of sentencing. That has become problematic today. [14] Mr Walker suggests that I should do nothing about it in respect of these two men, because to allow that further six month, it was effectively a six month discount, to Mr Musson?s sentence was an error. It was not an error based on the information that I had at the time that I sentenced Mr Musson. In hindsight it might be that that six month reduction would be dif?cult to justify. However, it is clear to me that Mr Ryan?s clients, the Slaimankhel brothers have altered their position in reliance on what I said in my minute of 29 August 2014 and for that reason, the only just thing I can do now is to give them a further discount, to achieve parity with Mr Musson. [15] It has already been agreed that there would be a four year starting point for both of these two men. It was initially four and a half years because of the methadone offending, but now that those charges have been accommodated in some way, it is four years for each of them and the sentencing today has proceeded on that basis. [16] Mr Musson?s starting point was higher for obvious reasons, he was the mastermind. I allowed a six month discount from what was a ?ve year and a half year starting point, if I recall correctly. So what I am going to do here is adjust the starting point down to three years and eight months. [17] For the sake of completeness, I will say what the aggravating features are although they have already been Court hearings that have determined those. [18] All drug offending poses risks to the end users and in this case, we know that the party pills were prepared, not in a sterile laboratory as medicines usually are, but in a backyard type home environment and therefore, the risk to public health is even greater. [19] Secondly, it is not just the end users who are hurt by drug offending. If persons who take these pills become addicted to them or behave unpredictany and uncharacteristically because of their taking of these substances, the harm it causes to other people is obvious, particularly their families, possibly their workmates and other people to whom they are close. [20] Another aggravating feature of this offending is the sheer scale of it, almost 100,000 pills. Because it was sold on the Auckland scene, we are almost certainly talking about recipients who are young people, who may not be educated about the taking of dangerous drugs like these. [21] The purpose, as it usually is, was for ?nancial gain. In the case of Mr Walid Slaimankhel, to fund his methamphetamine habit and in the case of Mr Khalid Slaimankhel, for cash. [22] Mr Walid and Khalid Slaimankhel are both Afghans in ethnicity. Their father and one of their brothers is present today, as is the partner and the mother of a child that she shares with Mr Walid Slaimankhel. Mr Walid Slaimankhel is aged 27 and Mr Khalid Slaimankhel is 25, so at the time of this offending, he would have been around 22 and 24 or 25 respectively. They are both body builders. Mr Khalid Slaimankhel was a professional body builder. [23] Their family is the type of family that New Zealanders welcome into this country: hardworking, honest, decent people who have achieved signi?cantly educationally and professionally. Their father is a specialist surgeon. Other siblings are quali?ed in the medical fields of pharmacy, dietetics and podiatry and ophthalmology. Mr Walid Slaimankhel, prior to getting himself into this mess, was in his second year of a bio-medical degree at Auckland University, hoping to follow in the footsteps of his family. [24] Not only do you come from an excellent family, you are part of a warm and supportive community and by that I mean the Afghan community. Your family and the two of you practice the Muslim religion and I have had many, many letters put in front of me, saying how shocked people who know you are to learn that you have been involved in offending of this sort. It is clear that being involved in this kind of offending is out of character for both of you. I am sure I do not need to tell you that you have brought great embarrassment and concern to your family and to your communities, but notwithstanding all of that, you are well supported by your families and also other people who know you well, including the Afghan and the Muslim community. In that sense, you two young men are very lucky. Very few people who appear for sentence on charges like this have the kind of support of community around you, that the two of you have. [25] Turning to Mr Walid Slaimankhel in particular, you appear to have rehabilitated yourself from your methamphetamine habit. At one stage, it was a habit of a gram a week and both your offending and your relationship with your current partner and in particular, the birth of your daughter, seems to have changed your life. You have undertaken rehabilitative classes at Community, Alcohol and Drug Services and you have been attending Narcotics Anonymous. You told me that it is now two years since you ceased using methamphetamine and you also told me that all you have to do is look at your daughter to know that you can never go back to the place that you were when you were using methamphetamine and mixing with the kind of people that you end up mixing with when you are taking methamphetamine so regularly as you were. For that, you are to be congratulated, as it is not an easy path to rehabilitate yourself from any addictive drug, but methamphetamine in particular. [26] During the time that you have been awaiting resolution of these charges, you have been on a curfew from 7 o?clock at night to 7 o?clock in the morning. That is for a period of some two and a half years and I am not aware that there have been any difficulties with your bail, by that I mean breaches. [27] You have written a letter telling me how sorry you are about what you have done. You said: I never dreamed that I could do anything that was result in being a drug addict and an offender. I?ve worked hard for many years and never been in trouble with police. I was a dedicated and competitive athlete in the body building circuit and an excellent college and university studentful?lling my and my father?s wishes to graduate in the medical ?eld. Just like him, my sister and my older brothers have done. One of the most dif?cult things during the past two years was the uncertainty, the fear of imprisonment, the loss of my university friends, the heartbreak, hurt and the shame I brought to my family and my loved ones in the community as a whole, the shaking of my own beliefs and morals and values and the realisation of being called an addict, a junkie by my own family. At times, this has been almost too hard to bear. I have changed considerably over the last two years, attended CADS and NA meetings. I have also been treated for And you then go on to talk about your daughter. [28] Mr Khalid Slaimankhel, prior to becoming involved in this offending, you were a professional body builder and you had an interest in a supplements business. You have no previous convictions, although you do have some notations in the Youth Court. You too are well thought of in the community and I have read a letter from somebody that you met at the and who came to know you well and who, like many other people, is absolutely shocked to learn of your involvement in this offending and he talked about how pleased he was when you came and approached him at the gym, subsequently made friends with him. Neither of the two of you drink alcohol and you often went out together and he says, ?eating healthy food and doing healthy things.? [29] You have also written a letter in which you say: I am deeply sorry for any harm that I may have caused to others and I hope that one day I can be forgiven and earn back the trust I once had. I have thought long and hard over what I?ve done and realised what I did was very wrong and there are no excuses for my behaviour. Iwas a drug dealer, plain and simple and there can never be an excuse for that kind of behaviour. [3 0] You have also told me that you take full responsibility for your actions and go on to say that: This journey has taught me many valuable life lessons and since being charged with these offences, I have done everything I can to turn my life around and I feel so much better for doing so. I will continue to make positive changes in my life and amends for what I have done. And you talk about doing courses and undertaking voluntary work at your local Mosque. [31] While you have been awaiting sentence on these matters, you were on e-bail for a period of 15 months. There has been a discussion today about the extent to which I should give a discount for that. Mr Walker for the Crown submitted that it should be a modest one of perhaps three months. Mr Ryan contends for much more of a discount than that, up to 20 percent. [32] The issue is that you have been on e-bail since you were granted bail in the High Court by Woolford on 30 July 2013. You were not just granted e-bail for these charges, there were some other charges that are still ongoing. Can I just say that the next part I am going to dictate and possibly that past sentence need to be suppressed, because there is an upcoming High Court trial. Those charges are connected to the current offending and I understand there has already been a hung jury and there is a re?trial next year. [33] If you were convicted of those charges then I can understand Mr Walker?s submission better because the electronic monitored bail has really been split between these charges and the other charges that I have just referred to. However I have to take into account that you may not be convicted of those charges apart from anything else there has already been a hung jury and therefore I have decided that it is appropriate to give you what is a full discount now in the knowledge and with the acknowledgement of Mr Ryan that there could not be a submission that you would get a discount in any future sentencing if you are convicted of these other matters because a discount has already been applied now. [34] Because of a recent alleged breach of bail you have been in custody for the last two months and you were in custody for ?ve and a half months prior to being granted electronic monitored bail. While you have been on EM bail you have been working, apart from an absence which as I understand it is linked to your current alleged breach of bail. The work has gone well and that person is prepared to have you back as an employee. [35] I now come to the discounts that are able to be applied to each of you, starting ?rst with Mr Walid Slaimankhel. From that starting point of three years and eight months, or 44 months, I allow 10 percent for your genuine remorse. That leads to 39.5 months and from there I allow a further six months for the fact that you have been on a 7.00 to 7.00 curfew for the last two and a half years. That comes down to 33.5 months. From there I allow a further eight months for rehabilitation and good character. While you do have some previous convictions, they are for possession of methamphetamine and property-related offending, which is really all part and parcel of the issues that have been going on with you over the two or three years prior to the middle of 2012. [36] That might seem a lot to discount, however it seems to me Mr Walid Slaimankhel that you have effectively and with the support of your family rehabilitated yourself from your methamphetamine addiction, and I encourage you to keep going to Narcotics Anonymous at least once a week, if not more often, at least for the next couple of years. I also express the wish that while you are on a sentence of home detention, and that will be the ultimate outcome, that your probation officer allows you absences from the house to attend Narcotics Anonymous meetings or any other drug rehabilitation treatment that is deemed appropriate for you. [3 7] That leads to 25.5 months, and from there you are entitled to 20 percent for your guilty plea. As I said, that is a generous discount but one the Crown is prepared to agree to. Certainly these pleas have not come early but there have been some reasons for it coming late, including while the question of whether or not there needed to be a disputed facts hearing was resolved. That brings the sentence down to something like 20 months and you are therefore in the realm of home detention. I am con?dent that home detention is an appropriate sentence for you, if for no other reason than you have such a supportive family around you. It may be that while you are serving a sentence of home detention that you are able to consider more study next year, and that is something that I can see from your nod that you want, and your dad nodded at the same time. [3 8] So the end sentence for you Mr Slaimankhel will be 10 months? home detention, and you are also required to complete 200 hours? community work, 20 hours of that can be converted into basic work and life skills. That is something your probation officer can explain to you. Effectively what it means is that you can do a certain range of courses, including the drug rehabilitation to utilise those hours, so you discuss that with your probation officer and see what is available to you. That is the same sentence on all of the counts to which you have pleaded guilty. [39] Mr Khalid Slaimankhel, from the three year, eight months? starting point or 44 months, I allow three months for remorse. That is a little less than I have allowed your brother and it is because of a comment that there is in the pre-sentence report, in which you sought to shift blame. Mr Walker submitted that I should not give you anything for remorse, because of that comment, however Mr Ryan has explained that you were wanting to move away from the responsibility for supplying methadone and you may have been referring to the fact that that charge has been amended. However, you had pleaded guilty to offering to supply methadone and for that reason, I have decided to reduce the amount for remorse for you. That brings it down to 41 months and from there, I have allowed a discount of six months for the fact that you were on EM bail for a period of 15 months. [40] EM bail is a restriction on your life and for 15 months, I am of the view that six months is an appropriate discount. That leads to 35 months and from there, I have allowed about two months for good character. While you come from a good family and you are otherwise of good character, there are these other charges pending and indeed, there is also a summary matter that I am going to mention shortly which certainly does you no credit at all. [41] I am not taking your Youth Court notations into account, in giving you less for good Character. That leads to 33 months and from there, something like 6.6 months needs to be deducted for the 20 percent for the guilty plea. That leads to an end sentence of 26.4 months which, while it is over the time period for imprisonment, when I can look at home detention, there is a further factor that I can take into account and it is the fact that you spent ?ve and a half months in custody, before you were granted bail and you have now been in custody for another two months. There is a case of Hermon Clifford 18 December 2009 Palmerston North High Court which stands for the principle that time in custody can be taken into account, where the time period is outside the realm of home detention. [42] This is a special case, where I am of the view that I can do that. I say that because of the factors I have already mentioned, around your family, your regret about what you got yourself into. I am of the View that the best rehabilitative course for you is to be with your family, to continue to have the support of your brother who has not only had you on e-bail in Dunedin, but has come up here to be with you today. Really, the support that you two have from your family is quite outstanding. So for those reasons, I am prepared in this case, to grant you home detention as well. [43] You will be sentenced to 10 months? home detention on the supplying with Class drugs and eight months? home detention on offering to supply methadone. Those two sentences are to be concurrent. [44] There is one further matter I need to attend to and that is a threatening charge which has arisen while you have been on bail. It is a Summary Offences Act 1981 charge which you have entered a guilty plea to today. The maximum period of imprisonment is three months. [45] This was one of those silly situations that young men seem to get themselves into all the time, where you got into a disagreement with the ex?partner of an eX-girlfriend, someone who you still wish to be in a relationship with. You believed that this other person was attempting to rekindle a relationship with your eX?girlfriend and I emphasise, and you met up with him in Dunedin on 30 September. During this meeting, you threatened to have him beaten up by members of a gang, unless he terminated this friendship. In my View, that is at the higher end of these sorts of charges and what occurred here does you great discredit. No doubt, you were just intending to frighten him, but nonetheless, that kind of threat can be terrifying to people on the other end of it. I am going to take into account your guilty plea, start with a month and sentence you to an additional three weeks? home detention on that charge. So it will be cumulative on the sentence of 10 months? home detention. [46] I need to attend to the home detention conditions. Now for Mr Walid Slaimankhel, you are to: Receive the Court order and travel directly to 173 6A Great North Road, Avondale. Not to possess, consume or use any alcohol or drugs not prescribed to you. To attend and complete an appropriate drug programme or Narcotics Anonymous, as directed by the probation of?cer and any other pro gramme or counselling. [47] So, you will wait at Court, have the papers served on you and then you need to go straight home. [48] Mr Khalid Slaimankhel, your home detention sentence is to commence on Monday, 8 December 2014, at 9.00 am: You are not to possess, consume or use any alcohol or drugs not prescribed to you. You are required to undertake and complete the medium intensity rehabilitation programme if required to do so and any other assessments or counselling recommended by your probation of?cer. [49] Given that Mr Khalid Slairnankhel is in custody on other matters at the moment, if that causes dif?culties in terms of commencing a home detention sentence, I would expect the Crown to make an application to review the sentence. [50] Thank you to the family for coming. ., A Cunningham District Court Judge IN THE DISTRICT COURT AT AUCKLAND THE QUEEN KHALID NASER SLAIMANKHEL WALID NASER SLAIMANKHEL Date: 10 September 2014 Appearances: Henley on behalf of Walker for the Crown Ryan for the Defendants MINUTE 0F JUDGE A CUNNINGHAM I should say at the outset that Mr Henley appeared on behalf of Mr Walker today. He does not have a great deal of familiarity with the ?le so what I am about to say is without any informed input from the Crown, although I allowed that opportunity. There was a sentence indication hearing before me on 27 January 2014 and I delivered a decision on 3 February 2014. That involved one other person in addition to Mr Walid Slaimankhel and Mr Khalid Slaimankhel. The other was Mr Musson who was the mastermind of an enterprise which involved the production and distribution of Class controlled drugs, sometimes known as party pills. They had an active ingredient that was similar to ecstasy. At the time I gave a sentence indication I adopted a starting point of four years for Mr Walid and Mr Khalid Slairnankhel. I gave an uplift of six months for methadone offending, that was supplying methadone. be judged appropriately in terms of their position in the hierarchy of this drug offending. [11] Mr Ryan has already outlined to me that there will be a number of discounts available to his clients, including Mr Khalid Slaimankhel being on EM bail for 14 months. Mr Walid Slaimanlchel has undertaken some rehabilitation. Of course there will be discounts for a guilty plea. I indicated about 22 percent for a discount for a guilty plea. That was back in January this year. [12] The sentencing Judge will also need to take into account that these pleas have come at a time when a disputed facts hearing has been abandoned because there has been some accommodation with the police about the methadone charges, provision of further information about the number of pills and also in light of a minute that I dictated and sent to Ryan about the appropriateness of there being a further discount in light of the sentence that Mr Musson received. So the Judge on sentence may take the view that that sort of discount is still available, however that is a matter for the sentencing Judge. [13] I will not be doing the sentencing because of my unavailability. However, in the spirit of the way in which this matter has been resolved I am prepared to indicate that if the end sentence was in the realm of home detention and there was a suitable pre~sentence report, likely I would have imposed a sentence of home detention. [14] I ask that this minute be typed up and provided to me soon, with a copy for the Crown and Mr Ryan. A Cunningham District Court Judge