Huang v The King
[2023] NZHC 2337
•25 August 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-000266
[2023] NZHC 2337
BETWEEN YONGHAO HUANG
Appellant
AND
THE KING
Respondent
Hearing: 7 August 2023
Further memoranda filed on 18 August 2023 for Appellant, and on 25 August 2023 for Respondent
Appearances:
P E Dacre KC for Appellant
I L M Archibald for Respondent
Judgment:
25 August 2023
JUDGMENT OF VAN BOHEMEN J
[appeal against sentence]
This judgment was delivered by me on 25 August 2023 at 3:30 pm Registrar/Deputy Registrar
……………………………..
Counsel/Solicitors:
P E Dacre KC, Auckland Crown Solicitor, Auckland
HUANG v R [2023] NZHC 2337 [25 August 2023]
[1] On 24 May 2023, Yonghao Huang was sentenced by Judge N R Dawson to two years and eight months’ imprisonment after pleading guilty to and being convicted of six charges of money laundering.1 Mr Huang appeals his sentence on the grounds that the Judge’s starting point was excessive and that the Judge gave insufficient discounts for Mr Huang’s personal circumstances and other factors. The Crown opposes the appeal.
[2] At the same time as Mr Huang was sentenced, Judge Dawson sentenced two co-offenders, Nathan Nauer and Vetekina Naufahu, in relation to the same money laundering offending. Mr Nauer and Mr Naufahu also appealed their sentences. Their appeals were heard together before Mr Huang’s appeal but a decision on their appeals had not been issued when Mr Huang’s appeal was heard.
[3] Because the outcome of Mr Nauer’s appeal, in particular, could be relevant to Mr Huang’s appeal, I agreed with counsel that I would not decide Mr Huang’s appeal until the decision on the appeals by Mr Nauer and Mr Naufahu had been issued and counsel had had an opportunity to make written and oral submissions if they wished.
[4] In a judgment dated 10 August 2023, Edwards J allowed the appeals by Mr Nauer and Mr Naufahu and set aside the sentences imposed in the District Court.2 Her Honour found that a sentence of home detention was available for Mr Nauer and adjourned Mr Nauer’s appeal pending production of a report on the suitability of the proposed home detention address.3 Her Honour sentenced Mr Naufahu to a significantly shorter period of imprisonment under which he was eligible for release on the basis of time served.4
[5] In the light of this decision, I made timetable orders for counsel for Mr Huang and Crown counsel to file further submissions and to seek a further hearing if they wished.5 I also directed that an updated pre-sentence report be prepared to assess the suitability of Mr Huang’s home address for home detention.
1 R v Nauer [2023] NZDC 10329.
2 Naufahu v R [2023] NZHC 2129
3 At [62] – [63].
4 At [110].
5 R v Huang HC Auckland CRI-2023-404-000266, 11 August 2023 (Minute of van Bohemen J).
[6] Counsel for Mr Huang and for the Crown both filed further submissions. Neither asked to make oral submissions.
The offending
[7] Mr Huang’s offending was uncovered during Operation Rider, an investigation by the National Organised Crime Group in late 2019 into a pattern of money laundering transactions undertaken by or on behalf of Mr Nauer and Mr Naufahu. The investigation disclosed that Mr Huang was involved in money laundering transactions undertaken for Mr Nauer, which Mr Huang facilitated primarily in his capacity as a car dealer.
[8] Mr Naufahu was a member of the Comancheros, and the money laundered by Mr Huang was the result of dealing in Class A controlled drugs by the Comancheros. Mr Nauer was not a member of the Comancheros but associated with the gang. Mr Huang had no direct dealings with the Comancheros.
[9] Five of the charges against Mr Huang related to five occasions, between November 2019 and February 2020, when Mr Huang laundered a total of $320,000 by accepting cash for the purchase or part purchase of five different motor vehicles. Mr Nauer arranged for the cash to be delivered to Mr Huang in bundles that a third person would deliver. When discussing the cash to be paid, Mr Nauer and Mr Huang referred to the cash as “noodles”. At Mr Nauer’s request, Mr Huang allowed vehicles to remain registered in the name of his company to disguise their true ownership.
[10] The sixth charge related to Mr Huang’s role in the payment of a legal retainer for Mr Nauer. Mr Nauer transferred $100,000 in cash via an associate to Mr Huang, in return for Mr Huang transferring $100,000 of his own money to Mr Nauer’s solicitor’s account. After Mr Nauer’s solicitor sought an explanation of the source of the funds, Mr Nauer arranged for Mr Huang to explain to the solicitor that Mr Huang had loaned the $100,000 to Mr Nauer for the retainer, despite there never being any loan. Mr Huang was to receive $20,000 for handling the funds and for attempting to deceive Mr Nauer’s solicitor. There is no evidence Mr Huang was paid this amount.
[11] Under the arrangements with Mr Huang, Mr Nauer laundered $220,000 in cash; Mr Naufahu laundered $93,819.68 in cash. Mr Nauer and Mr Naufahu were aware the laundered cash was derived from dealings in Class A controlled drugs.
Sentencing decision
[12] When sentencing the three defendants, Judge Dawson said he took into account the need:6
(a)to hold them accountable for their participation in criminal activities derived from profits from drugs that caused considerable harm in the community;
(b)to denounce their conduct;
(c)to impose a sentence that would deter them and others from similar offending; and
(d)to consider the rehabilitation of each defendant.
[13] The Judge assessed the gravity of the offending and the degree of culpability of each defendant as “relatively high”.7 The Judge identified the following aggravating features:8
(a)the activities of Mr Nauer and Mr Naufahu had enabled them to enjoy the profits of criminal behaviour involving drugs; and
(b)Mr Huang had derived “considerable commercial profits” from the car sales as well as receiving a cut from the laundering activities.
6 R v Nauer, above n 1, at [13].
7 At [14].
8 At [14] – [15].
[14] The Judge considered the offending had been driven by greed of all three defendants and that the level of premeditation was high, with a pattern of ongoing offending.9
Mr Huang’s sentence
[15] The Judge noted that Mr Huang’s pre-sentence report assessed the likelihood of re-offending and harm towards others as low. However, it also recorded that Mr Huang showed “a lack of understanding around the devastating economic, security and social consequences of money laundering at the time of the offending”. The Judge noted that Mr Huang had told the report writer that the charges had given him insight and that he had learnt his lesson. The report also recorded that Mr Huang’s “offended- related factors” were his attitude, his peer associates, his poor problem solving and his lack of consequential thinking. The Judge also observed that the report said that Mr Huang had continued to under-report his involvement in the offending and that he had taken a “victim stance”.10
[16] The Judge adopted a starting point of three years and six months, the starting point which he said he would adopt at Mr Huang’s sentence indication.11 The Judge considered that Mr Huang was entitled to a 15 per cent guilty plea and a five per cent reduction for previous good character. The Judge allowed a further four per cent discount on the basis that Mr Huang had “shown a limited amount of insight”. This resulted in a total discount of 24 per cent and a final sentence of two years and eight months’ imprisonment. The Judge recalled that, at the sentencing indication, he had not ruled out at his imposing a community-based sentence if that turned out to be appropriate but noted that this point had not been reached.12
Sentences imposed on Mr Nauer and Mr Naufahu
[17] In sentencing Mr Nauer, the Judge adopted a starting point of three years and nine months, taking into account the amount of money and the number of transactions in which Mr Nauer had been involved. The Judge applied an uplift of three months
9 At [14] – [15].
10 At [17].
11 At [20].
12 R v Nauer, above n 1, at [20].
for offending committed while Mr Nauer was on bail on other charges resulting from another Police investigation known as Operation Nova. The Judge applied discounts of 20 per cent for Mr Nauer’s guilty plea; five per cent for previous good character (taking into account Mr Nauer’s ongoing offending) and six per cent for his rehabilitative efforts through community charity work. This resulted in an end sentence of two and nine months’ imprisonment.13
[18] In sentencing Mr Naufahu, the Judge adopted a starting point of two years and six months and added uplifts of three months for offending while on bail and a further three months for previous relevant convictions. The Judge applied a discount of 15 per cent for Mr Naufahu’s guilty plea and four per cent for cultural factors as set out on a report prepared in accordance with s 27 of the Sentencing Act 2002. The Judge noted that Mr Naufahu had been granted a discount of 10 per cent on the basis of the same cultural report when sentenced in 2021 and observed that there was no lifelong discount for cultural reports. The Judge made a further deduction of one month because Mr Naufahu had been on restrictive 24-hour curfew bail for 12 months. This resulted in an end sentence of two years and four months’ imprisonment.14
Approach on appeal
[19] An appeal against a sentence is an appeal against a discretion. Section 250(2) of the Criminal Procedure Act 2011 (CPA) provides that the Court must allow an appeal against sentence if it is satisfied that, for any reason, there was an error in the sentence and that a different sentence should be imposed. In any other case, it must dismiss the appeal.15 Section 251 of the CPA provides that, if a Court allows an appeal against sentence, it must either set it aside and impose another sentence as appropriate, vary the sentence or any part of it, or remit the sentence back to the Court which originally imposed it.
[20] It is well-established that an appeal against sentence will be successful only if the appellant can point to an error, either intrinsic to the Judge’s reasoning, or as a result of materials submitted on the appeal, that vitiates the lower Court’s sentencing
13 At [21].
14 At [22].
15 Criminal Procedure Act 2011, s 250(3).
discretion.16 Unless there is a material error in the end sentence, the Court will not intervene.17 There will be a material error if the end sentence is manifestly excessive or wrong in principle.18 In general, the focus is on whether the end sentence is within the available range, rather than the process by which the sentence was reached.19 Accordingly, mere tinkering is not permitted.20 However, there may be cases where there has been an error that requires correction, even if the sentence imposed is within range.21
Submissions for Mr Huang
[21] Mr Dacre KC, counsel for Mr Huang, submitted that the Judge’s starting point was excessive because it was set by reference to cases that involved links to drug offending which, with respect to Mr Huang, are not present in this case. Mr Dacre said there was no evidence linking Mr Huang to drug dealing, drug dealers or suppliers. He submitted that the Judge conflated the summary of facts and evidence applicable to Mr Nauer and Mr Naufahu with that applicable to Mr Huang.
[22] Mr Dacre said that the cases relied upon by the Judge for setting the starting point in his sentencing indication decision – Zhang v R,22 R v Le23 and R v Chase24 – all involved offenders with direct links to drug dealers and their principal drug offending. He said that, by contrast, Mr Huang could only be said to have been reckless as to the source of his funds. Unlike Mr Nauer and Mr Naufahu, Mr Huang was not aware that the cash being laundered derived from dealings with Class A drugs. His interactions were solely with Mr Nauer and his associates.
[23] Mr Dacre submitted that the Judge’s finding that Mr Huang gained considerable commercial profits was contrary to the evidence before the Court. The
$420,000 laundered did not reflect a gain to Mr Huang’s financial and commercial
16 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [30]; Tamihana v R [2015] NZCA 169 at [14] and [29]–[30] .
17 Te Aho v R [2013] NZCA 47 at [30]; Tamihana v R, above n 16, at [14].
18 Tamihana v R, above n 16, at [14].
19 Tutakangahau v R , above n 16, at [36]; Tamihana v R , above n 16, at [14].
20 Maihi v R [2013] NZCA 69 at [21].
21 Tutakangahau v R, above n 16, at [36].
22 Zhang v R [2010] NZCA 481.
23 R v Le [2018] NZHC 2199.
24 R v Chase [2018] NZHC 1022.
positions. Based on figures extrapolated from the Summary of Facts, Mr Dacre invited the Court to accept that Mr Huang was left in a negative financial position from his dealings with Mr Nauer.
[24] Mr Dacre said the cases referenced by Judge Dawson in setting the starting point involved the laundering of between approximately $700,000 and $1,500,000, with offenders directly linked to drug dealers or part of the drug dealing hierarchy. The amount Mr Huang had laundered was significantly smaller, did not result in significant personal gains, and was not linked to drug dealers or any gang. By reference to Williams v R25 and R v Wilson,26 Mr Dacre submitted that Mr Huang’s starting point should have been in the region of two years and six months.
[25] Mr Dacre said the five per cent discount made for Mr Huang’s previous good character was manifestly inadequate for a person who, apart from a traffic offence, had had no previous criminal history. He submitted that Mr Huang’s situation was very different from that of Mr Naufahu, who was a member of the Comancheros, and from that of Mr Nauer, who chose to associate with the Comancheros and was aware of their criminal activities. Mr Dacre also said that the four per cent discount for Mr Huang’s limited insight did not adequately reflect the genuineness of Mr Huang’s contrition.
Submissions for the Crown
[26] Ms Archibald, Crown counsel, submitted that the starting point adopted by the Judge was within range and that the discounts applied were appropriate and was not inflated by factors relevant only to his co-defendants. The higher starting point for Mr Nauer reflected his knowledge of the origins of the laundered cash. Ms Archibald said that while Mr Huang’s financial benefit may not have been substantial, he did derive some benefit.
[27] Ms Archibald said the figures extrapolated by Mr Dacre were not part of the agreed facts. Ms Archibald said this was not a case where the offender received no
25 Williams v R [2021] NZCA 333.
26 R v Wilson [2022] NZHC 1901.
benefit from the money they laundered. Ms Archibald did not contend, however, that Mr Huang had profited substantially from his offending.
[28] Ms Archibald submitted the starting point and the cases referenced by the Judge were appropriate and that the cases referenced by Mr Dacre were not. In Williams, the specific sum laundered was not readily identifiable. In Wilson, the laundering transactions were not of the same complexity or nature. Ms Archibald also said that parity among co-defendants was important and was appropriately reflected in the Judge’s starting points.
[29] Ms Archibald also said that discounts made for Mr Huang’s previous good character was appropriate. The offending was ongoing and was directly relevant to the discount. The four per cent discount for Mr Huang’s limited insight was appropriate given that neither the probation report nor an affidavit filed by Mr Huang affidavit exhibited any “tangible evidence of remorse”.
Edwards J’s decision on the appeals by Mr Nauer and Mr Naufahu
[30] In the case of Mr Nauer, the Judge did not accept that the starting point should have been the same as that adopted for Mr Huang. The Judge was satisfied that there was reason to regard Mr Nauer, who had been sentenced on the basis of actual knowledge, as more culpable than Mr Huang, who had been sentenced on the basis of recklessness. It could be inferred from Mr Nauer’s role that he was closer to the original source of the laundered cash which he knew was derived from drug offending. Mr Nauer was also more directive in the scheme.27 Accordingly, the Judge was not persuaded that the three months difference between the starting points adopted for Mr Nauer and Mr Huang resulted from error.28
[31] The Judge also considered that the three months uplift for Mr Nauer’s offending while on bail was justified, even though the charges under Operation Nova had been dismissed, and that the 20 per cent discount for Mr Nauer’s guilty pleas was appropriate.29 However, taking into account Mr Nauer’s previous good character and
27 Naufahu v R, above n 2, at [26].
28 At 27]
29 At [30] – [32].
his later fall from grace, as well as his addiction to methamphetamine and the impact of facing other charges that were ultimately dismissed, the Judge considered that a discount of 10 per cent for previous good character might have been available but for the fact the money laundering activities had facilitated dealing on class A drugs. Accordingly, the Judge considered a good character discount of eight per cent was justified.30
[32] Edwards J then considered the connection between Mr Nauer’s addiction and his offending, having regard to the Supreme Court’s decision in Berkland v R.31 Weighing these factors, the Judge considered that a further discount of 15 per cent was warranted.32 The Judge also considered that the discount for Mr Nauer’s rehabilitative prospects warranted a further discount of 10 per cent.33
[33] The net result was an end sentence of two years and between one and two months’ imprisonment. The Judge noted that sentencing was not an arithmetical exercise and that the difference of between one and two months was minor in the circumstances.34 Accordingly, the Judge considered whether home detention was the least restrictive outcome in the circumstances. The Judge was satisfied that it would be.35 However, because the home address considered in the pre-sentence report was no longer available, the Judge directed that a further report be prepared and adjourned Mr Nauer’s appeal.36
[34] In the case of Mr Naufahu, Edwards J considered that the starting point should have been two years rather than two and a half years’ imprisonment, and that the uplift for offending while on bail and prior convictions should have been four months rather six months.37 The Judge then considered Mr Naufahu’s background factors. Having regard to the poverty, sub-optimal housing and over-crowding that were features of Mr Naufahu’s childhood and to the Supreme Court’s observations in Berkland v R
30 At [34] – [ 42].
31 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
32 Naufahu v R, above n 2, at [43] – [48].
33 At [52].
34 At [53] – [56].
35 At [58] – [62].
36 At [63] – [64].
37 At [67] – [79].
about the constraining effect of these factors on individual choice,38 the Judge considered that the 10 per cent discount for social and cultural factors that had been applied when Mr Naufahu had been sentenced in 2021 was also available on this occasion.39 The Judge also considered that Mr Naufahu should have a discount of three months for the 12 months spent on restrictive bail conditions.40
[35] The net result was an end sentence of one year and seven months’ imprisonment. The Judge said it followed that the sentence imposed in the District Court was manifestly excessive and should be set aside. The Judge noted that Mr Naufahu did not seek to substitute a sentence of home detention for the remainder of his sentence because he was eligible for release because of time served.41
Submissions of counsel following Edwards J’s decision
[36] In his memorandum, Mr Dacre submitted that Edwards J’s reasoning was equally applicable in Mr Huang’s case and that, on the application of the parity principle, Mr Huang should receive the same type of sentence as Mr Nauer.
[37] In their memorandum, Crown counsel submitted that the decision of Edwards J was of limited relevance to Mr Huang’s appeal because Edwards J found no error in the starting point adopted by Judge Dawson for Mr Nauer and the additional discounts found to be available for Mr Nauer and Mr Naufahu were specific to their circumstances. Crown Counsel submitted an end sentence of imprisonment was the least restrictive outcome in Mr Huang’s circumstances.
Analysis
[38] It is well established that those who launder money for drug dealers are nearly as culpable as those who actually participate in the dealing.42 Mr Dacre submits that the starting point adopted by Judge Dawson was based on an assumption that Mr Huang knew that the money he was laundering came from illegal drug dealing
38 Berkland v R, above n 32, at [115] – [118].
39 Naufahu v R, above n 2, at [80] – [99].
40 At [100] – [109].
41 At [110].
42 R v Wallace CA 415/98, 16 December 1998.
when, at best, the evidence establishes that Mr Huang was reckless as to the source of the money.
[39] I agree that, in considering the applicable purposes of sentencing in relation to all three defendants, the Judge did not explicitly distinguish between the knowledge and culpability of Mr Nauer and Mr Naufahu on the one hand and that of Mr Huang on the other. I also accept that, as the Crown acknowledged at Mr Huang’s sentence indication, Mr Huang had been prepared to go ahead with the transactions despite knowing or at least being reckless as to whether they had been funded with the proceeds of controlled drug dealing.
[40] I am in no position to assess whether Mr Huang made money out of the laundering of cash. The figures extrapolated from the Summary of Facts do not provide any adequate basis for concluding that the money laundering did not result in a gain to Mr Huang. It is reasonable to assume that he gained some financial benefit from the transactions. However, the only specific information before the Court of the financial gain to Mr Huang is that he was to receive $20,000 for handling the funds for the solicitor’s retainer and for attempting to deceive Mr Nauer’s solicitor. But, as noted, there is no evidence that he actually received that payment. For these reasons, I do not consider that there was a sufficient evidential basis for Judge Dawson to conclude and to sentence Mr Huang on the basis that Mr Huang had derived “considerable commercial profits” from the car sales and had received a cut from the laundering activities.
The starting point
[41] The first question, therefore, is whether the starting point of three and a half years was too high, if Mr Huang is taken as being reckless as to whether the funds derived from illegal drug dealing and there is insufficient evidence to conclude that Mr Huang had profited significantly from the money laundering.
[42] Two of the defendants in the decisions considered by Judge Dawson at the sentence indication – Zhang v R and R v Le – had actual knowledge that the money they were laundering derived from illegal drug dealing. In R v Chase, however, the
relevant defendant was sentenced on the basis his actions were reckless and that he had not derived significant profit from those actions.
[43] The sums involved in those cases were significantly higher than the sums laundered by Mr Huang:
(a)Zhang: Almost $700,000, with a personal gain of a $50,000 car, a house, designer clothes and accessories, with a starting point of five and a half years adopted upheld on appeal;
(b)Le: $1,295,000 but with no substantial profits, with a starting point of four years adopted;
(c)Chase: $1,461,100, where the defendant acted recklessly, made no commercial gain beyond a fee of $5,000 for laundering funds derived from dealing in Class C controlled drugs, with a starting point of three years and nine months adopted.
[44] I agree with Ms Archibald that Chase is the closest comparator to Mr Huang’s situation. I consider that Williams or Wilson are of little assistance.
[45] While Chase involved Class C rather than Class A drugs, given that Mr Huang had no direct connection with or knowledge of the drug offending, the difference in the nature of the drugs involved is less material. On the other hand, the amount of money laundered in Chase was well over a million dollars and more than three times more than that laundered by Mr Huang. Since money laundering is the subject matter of the offence for which Mr Huang is being sentenced, I do not consider that the three months difference between the starting point adopted in Chase and that selected by the District Court Judge adequately recognises the difference in magnitude of the offending between the two cases.
[46] For these reasons, I am satisfied that the starting point of three years and six months adopted by the District Court Judge was too high, particularly when there was insufficient evidence to support the Judge’s conclusion that Mr Huang had derived
“considerable commercial profits” from the car sales and had received a cut from the laundering activities. I consider that a starting point of three years is more appropriate.
[47] In making that adjustment, I am conscious that this results in a significantly larger gap between the starting point for Mr Huang and that confirmed by Edwards J for Mr Nauer. However, the factors that go to Mr Nauer’s higher starting point are specific to his circumstances. Mr Nauer had direct knowledge that the money being laundered derived from drug dealing and directed the laundering of those funds through Mr Huang.
Discounts
[48] No challenge is made to the 15 per cent discount given for Mr Huang’s guilty plea and I see no reason to revisit that decision.
[49] I agree with Mr Dacre that the five per cent discount for Mr Huang’s previous good character is inadequate. Mr Huang is 39 years old. He has lived his entire adult life in New Zealand. His only encounter with the law is a traffic conviction in 2015 for excessive speed, for which he paid a fine. To give him a discount of only five per cent for previous good character is manifestly inadequate. I consider a discount of 12 per cent to be appropriate.
[50] I also consider that the Judge was unfairly restrictive in limiting the discount for Mr Huang’s remorse or “insight” to four per cent. I note that the Judge made no reference to the affidavit Mr Huang swore in the week before sentencing in which Mr Huang stated without qualification that he accepted responsibility for his offending, that he realised that he was involved in money-laundering, that he had no explanation other than he was greedy, arrogant and self-centred, that he had abused the opportunities offered to him by New Zealand when he was made a permanent resident and that he had let down his wife and family. Given that unqualified acceptance of responsibility, I am satisfied that Mr Huang is entitled to a discount of five per cent for remorse and insight. I put it no higher, however, given the lack of any acknowledgement of the harm caused to society by the activities in which he was involved.
Is home detention available and appropriate?
[51] A starting point of three years or 36 months, with deductions of 32 per cent as discussed above, results in an end sentence of 24 months, rounded in Mr Huang’s favour. On that basis, Mr Huang is eligible to be considered for home detention.
[52] The original pre-sentence report, dated 9 November 2022, assessed Mr Huang’s likelihood of re-offending as low, based on his age and the frequency of re-offending over the past five years. It also assessed Mr Huang’s harm towards others as low because there was no direct harm to others. It recommended, however, that Mr Huang be sentenced to imprisonment because of the number of convictions for serious offending. The report also considered that imprisonment would provide a punitive element for Mr Huang’s offending behaviour and allow him to address his rehabilitative needs.
[53] The updated pre-sentence report stated that there were no changes to the original report’s assessment of the offending related factors. It also assessed the proposed home detention address as suitable for electronic monitoring and reported that the Police had no concerns about the address but were concerned about Mr Huang’s gang connections.
[54] The updated report noted, however, that Mr Huang had expressed an intention to return to his car dealership where the offending had occurred and had said he would require twice-weekly absences to play badminton at the badminton courts where, as stated in the Police Summary of Facts, one of the money laundering transactions occurred. Mr Huang had also said he would need to leave the house every day to take his daughter to school and his wife to work.
[55] I do not accept that Mr Huang has any direct gang connections. His only connection to the Comancheros was through Mr Nauer, who was not himself a gang member. Nor do I consider that there is a real risk of Mr Huang re-offending if he is permitted to go to the badminton courts where he once met an associate of Mr Nauer. However, I agree with the observation of the report-writer that Mr Huang appears to have an unrealistic view of the restrictions of home detention. Indeed, his expectations of what he might do while on home detention appear to be thoroughly unrealistic.
[56] While it will be for Mr Huang’s probation officer to approve any absences if Mr Huang is granted home detention, Mr Huang can have no expectation that he will be permitted daily absences to take his family to work and school when they must have been managing these matters without him for some time. Nor can he expect twice-weekly absences to play badminton on the basis of self-asserted medical need. In addition, Mr Huang should not expect to resume his car dealership if by that he means operating his own business and traveling to pick up and drop off vehicles as he told the pre-sentence report writer was a feature of his business. If Mr Huang wishes to take up some form of employment while on home detention, he will need to satisfy his probation officer that the employment is appropriate for someone on home detention and that the circumstances are such that the risk of his engaging in further money laundering are adequately mitigated.
[57] However, the fact that Mr Huang may have unrealistic expectations about what he might do if sentenced to home detention is not a reason for his remaining in prison when he poses little risk to others and little risk of re-offending, provided he is subject to appropriate monitoring and other conditions. Given those considerations and having regard to ss 7 and 8 of the Sentencing Act, I am satisfied that a sentence of home detention is appropriate and is the least restrictive outcome available in the circumstances.
[58] In addition, and although Mr Huang’s sentence is constructed on a different basis from that of Mr Nauer, I agree with Mr Dacre that there is an issue of parity. It would not be just for the person who was not involved in and who did not have direct knowledge of the drug dealing that generated the money laundering to be sentenced to imprisonment when a more culpable co-offender is to be sentenced to home detention.
[59] For all these reasons, I am satisfied that the sentence imposed on Mr Huang in the District Court is manifestly unjust and should be set aside. I consider a substitute sentence of nine months’ home detention should be applied from today’s date, taking into consideration that Mr Huang has already served three months of his sentence of imprisonment.
Result
[60]I grant Mr Huang’s appeal.
[61]I set aside the sentence of imprisonment imposed in the District Court.
[62]In substitution, I sentence Mr Huang to nine months’ home detention at
, Stonefields, Auckland on the special conditions set out in Option 1 of the Pre-Sentence Report dated 18 August 2023.
[63] The period of home detention is to commence on 25 August 2023, bearing in mind that Mr Huang has already served three months of the sentence of imprisonment imposed in the District Court on 24 May 2023.
G J van Bohemen J
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