Mingsisouphanh v The Queen

[2018] NZCA 571

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA190/2018
 [2018] NZCA 571

BETWEEN	THAMMANOUN MINGSISOUPHANH Appellant
AND	THE QUEEN Respondent

Hearing:	12 November 2018
Court:	Asher, Lang and Moore JJ
Counsel:	K J Simonsen and A J Holland for Appellant M R Harborow for Respondent
Judgment:	10 December 2018 at 11 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed. 

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Introduction

1. Thammanoun Mingsisouphanh appeals his sentence of 14 years’ imprisonment with a minimum term of seven years’ imprisonment, for a number of serious drug offences.[1]  He pleaded guilty to possession of material with intent to manufacture methamphetamine; possessing equipment with intent to manufacture methamphetamine; conspiring to manufacture methamphetamine; possession of ephedrine for supply; and possession of cocaine for supply. 

   [1]R v Mingsisouphanh [2018] NZHC 532.

2. We set out the facts of the offending, drawing from Venning J’s judgment in the High Court. 

3. On 14 January 2017, a consignment of cargo containing an estimated 160 litres of t-Boc methamphetamine, labelled as dishwashing liquid, left Hong Kong.  It arrived in New Zealand on 28 January 2017 and a Customs examination revealed the t-Boc methamphetamine.  T‑Boc is added to methamphetamine that has already been manufactured to mask the methamphetamine.  It can be removed through a chemical process enabling the remainder to be supplied as methamphetamine. Environmental Science and Research (ESR) estimate that, with the addition of hydrochloric acid and the completion of an evaporation process, the 160 litres seized was capable of producing 46 kilograms of pure methamphetamine.

4. Customs substituted a placebo for the majority of the t-Boc methamphetamine and a controlled delivery was made to an address in Papakura.  On 18 February 2017, Mr Mingsisouphanh and a co-offender, Mr Wong, uplifted the consignment and put it into storage in a storage unit in New Lynn.  Mr Mingsisouphanh had rented the storage unit the previous day.

5. Later in the day Mr Mingsisouphanh left Auckland for Sydney.  On 21 February 2017, the police installed audio and visual surveillance devices in the storage unit.  Mr Wong and a further co-offender, Mr Chan, were observed at the storage unit over the next few days.  Mr Mingsisouphanh arrived back in Auckland on 23 February 2017.

6. On 28 February 2017, Mr Mingsisouphanh and Mr Wong went to the storage unit again.  Mr Mingsisouphanh took samples from one of the containers with the placebo inside it and he placed that into two small bottles.  He put them in a plastic bag, put that in the boot of his car, and went to Mr Wong’s address.

7. Between 27 February and 13 March 2017 three parcels containing a rotary evaporator, an agitator and various other items of glassware and equipment arrived in New Zealand.  They arrived under false descriptions.

8. On 14 March 2017 Mr Mingsisouphanh, together with Mr Wong and Mr Chan, collected the packages containing the agitator and glassware and took them to an address in Lynfield where they unloaded them into a garage.   Mr Mingsisouphanh had previously collected the rotary evaporator and taken it to the storage unit.  All three then went to the storage unit and loaded the contents of the unit into a rental van and delivered it to the address in Lynfield.

9. Shortly afterwards Mr Mingsisouphanh was located and arrested when the operation was closed down.  The property Mr Mingsisouphanh was living in at Newmarket with Mr Leung, another co-offender, was searched.  In Mr Mingsisouphanh’s bedroom a plastic bag containing 962.8 grams of cocaine and two plastic bags containing a total of 1,551.6 grams of ephedrine were located.

10. A search of the Lynfield address disclosed the t-Boc methamphetamine and placebo and the various items of equipment that had been imported.

11. Mr Mingsisouphanh did not make any comment to the police when arrested, and has made no statement and given no explanation.  In his pre-sentence report interview he appeared to accept his offending without qualification, stating that he had serious financial needs to support his elderly mother’s healthcare in Sydney.  He further added that he thought it was “easy money” to support his family.  He indicated that he appreciated the seriousness of his offending and acknowledged that his poor decision put his liberty at risk.

12. The Judge fixed an 18-year starting point, and reduced that by six months for Mr Mingsisouphanh having no previous convictions in New Zealand, and the fact that he would serve his sentence in New Zealand and not his home in Australia.  Applying a 20 per cent discount for his guilty plea, the end sentence was 14 years’ imprisonment.  He also imposed a 50 per cent minimum term (seven years’ imprisonment). 

The starting point

1. There is no challenge to the starting point.  However in assessing a sentence appeal, the issue is whether the end sentence was manifestly excessive.  To judge that it is necessary to look at all the elements of the sentence to see where the available end range lies. 

2. In assessing Mr Mingsisouphanh’s culpability we note the following:

   (a)160 litres of t-Boc methamphetamine was capable of producing 46 kilograms of pure methamphetamine. 

   (b)The maximum penalty for the conspiracy to manufacture methamphetamine charge is 14 years’ imprisonment.  Given the amount involved, this was at the most serious level in terms of culpability. 

   (c)The amounts of cocaine and ephedrine were of a high level.

   (d)Mr Mingsisouphanh’s involvement was for almost a month from 18 February to 14 March 2017 and indicates, as the Judge found, involvement in the conspiracy as an “active and central role”.[2]  His actions in coming to New Zealand and participating plainly involved premeditation.  He appears to have come to New Zealand intent on participating in the orchestration of a major drug supply.

   (e)There is no evidence as to the financial return to him, but it can be assumed that he would not have come to New Zealand for this period of time and taken this amount of risk, without the prospect of a considerable reward.  His possession of large amounts of cocaine and ephedrine indicate significant commercial rewards.  He said he thought it was “easy money” to support his family.

   [2]At [19].

3. In these circumstances the Judge’s approximate starting points on each charge of 12½ years for the conspiracy charge, 10–11 years for the cocaine charge, and 5–6 years for the ephedrine, seem modest.  When applying the totality principle generously, the end starting point of 18 years’ imprisonment, as against the notional cumulative starting point of approximately 28 years, was in the middle of the range, and could have been higher. 

Discount for personal mitigating factors

1. There was nothing to support a good character discount for Mr Mingsisouphanh save for his lack of previous convictions.  We agree with the Judge’s assessment that no genuine remorse warranting a discount was shown.  As to Mr Mingsisouphanh having to serve his sentence away from home, he has lived in Australia for 25 years.  There are no issues with his ability to speak English or his understanding of the culture in New Zealand.  He has very elderly parents, but this is not unusual. 

2. Thus, considering a discount for personal factors in the round, we are unable to say that the Judge erred in fixing a six-month discount.  We are not assisted by reference to other High Court sentencing decisions.[3]  There were distinguishing features in the cases cited.  Another judge may have given a little more of a discount, but another judge may have also picked a higher starting point. 

   [3]We were referred to R v Yung [2017] NZHC 895; and R v Yuen [2016] NZHC 571.

3. On an overview, given the very serious nature of the conspiracy, and the large quantities of other prohibited drugs that were found, and taking into account personal mitigating factors, an end sentence of 14 years’ imprisonment, taking into account Mr Mingsisouphanh’s guilty plea, was appropriate. 

The minimum term

1. It was submitted that no minimum term or a shorter minimum term should have been imposed.  Again, allegedly comparable decisions were put to us, in particular the decisions of this Court of R v Agu and Tran v R.[4] 

   [4]R v Agu [2018] NZCA 147; and Tran v R [2017] NZCA 146.

2. Mr Mingsisouphanh played an active and central role in the importation of a substance which was capable of being turned into a huge amount of methamphetamine by the application of hydrochloric acid.  The large quantities, the premeditation shown, and his central role, required denunciation.  A minimum term was required to hold him accountable for harm done to the community and to denounce his conduct.  Moreover deterrence of others is a factor.  Mr Mingsisouphanh came to New Zealand with the intention of orchestrating with others the production of methamphetamine, which would have caused untold harm to many New Zealanders.  Visitors need to be deterred from deliberate and extensive involvement in such damaging criminal behaviour.  In the cases of Tran and Agu, relied on by Mr Holland for Mr Mingsisouphanh, the role of the offender was at a considerably lower level than the role of Mr Mingsisouphanh. 

3. In the circumstances the end minimum term of imprisonment of 50 per cent (seven years’ imprisonment), was available and, indeed, appropriate. 

Result

1. The appeal against sentence is dismissed.

Solicitors:
Crown Solicitor, Auckland for Respondent