R v Chan

[2017] NZHC 2924

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-2723 [2017] NZHC 2924

THE QUEEN

v

YUEN CHAN

Hearing:	28 November 2017
Appearances:	F Culliney for the Crown M P Hislop for the Defendant
Judgment:	28 November 2017

SENTENCING NOTES OF GORDON J

R v CHAN [2017] NZHC 2924 [28 November 2017]

Solicitors:         Crown Solicitor, Auckland

Counsel:           M P Hislop, Auckland

[1]      Mr Chan, you appear today for sentencing on one charge of conspiring to manufacture methamphetamine, possession of material with intent to manufacture methamphetamine and possession of equipment with intent to manufacture methamphetamine.   You pleaded guilty to these charges following a sentence indication by me on 10 October 2017.1

[2]      I do not propose to describe the facts of your offending again because they are set out in full in my sentence indication, which will be annexed to and form part of this judgment.  It is sufficient for today’s purposes to say that you were in possession of t-boc methamphetamine which had been imported into New Zealand, in quantities sufficient to manufacture approximately 46 kilograms of methamphetamine.   You were well on the way to carrying out the manufacture.  I concluded in my sentence indication that a starting point of 13 years and 10 months’ imprisonment was required to reflect the gravity of your offending.

[3]      The Crown accepted then, as they do now, that there were no aggravating features relating to you personally.  I indicated that I would give you a deduction of

20 per cent to reflect your guilty pleas, if you accepted the sentence indication.

[4]      There are two issues which remain to be determined. The first is whether you should receive any additional reduction to the starting point of 13 years and 10 months’ imprisonment to reflect any mitigating factors relating to you personally. The second is whether the Court should impose a minimum period of imprisonment, over and above the statutory minimum of one-third of your sentence.

[5]      Your counsel, Mr Hislop, submits there are several factors which justify a reduction in the starting point.  The first of these is good character, on the basis that you have no previous convictions.  There are two difficulties with this submission. The first is that the Court has not been provided with any official record of your criminal history in Hong Kong and Canada.   The Department of Corrections has attempted to ascertain your criminal history in those countries but has been unable to

do so. The second and more fundamental problem with this submission is that a mere absence of previous convictions does not necessarily justify a discount for previous good character.   Something more is required.   That is particularly the case in the context of commercial drug offending, where the principle of deterrence carries very significant weight.2

[6]      Next, Mr Hislop submits that the Court should allow a separate discount, over and    above   that    given    in    respect    of    your    guilty   pleas,    for    remorse. Today Mr Hislop has handed up a letter written by you expressing remorse and apologising to the people of New Zealand.  Mr Hislop also points to comments made by you to the pre-sentence report writer that “I know I am wrong” and “if he can give me a change I will be a good person”.  Mr Hislop submits, and I agree, that the word “change” in that statement is intended to be “chance”.

[7]     However, any superficial appearance of remorse in those comments is undermined by your statement, also to the pre-sentence report writer, that “I did not know there were drugs in the concealment”.   You claimed that you visited New Zealand to take up a job offer from an associate called Bon and that it was effectively a coincidence or bad luck that you were caught up in the manufacturing operation. Your account of events is not only implausible but is also completely inconsistent with the summary of facts to which you have pleaded guilty.  I also view with scepticism a letter handed up on the day of sentence.

[8]      Mr Hislop also submits that you should receive a reduction in sentence to reflect your rehabilitative efforts in prison.   You have completed a “Wellness Recovery” programme and apparently have completed a number of other programmes, including “Stress Management”, “Positive Parenting” and “Education on Risk Taking Behaviour and Problem Gambling Harm”.  I am unable to identify any link between the subject matter of these programmes and the nature of your offending.  Nor do I consider that it is appropriate to give a discount for rehabilitative efforts in circumstances where you apparently continue to deny your part in the offending.

[9]      Finally, Mr Hislop submits that the Court should make a reduction to the starting point to recognise that a sentence of imprisonment will be unusually difficult for you to serve.  He notes that you have a wife and two young daughters living in Hong Kong, from whom you will be separated for the period of your imprisonment; and that you will be isolated in the prison environment, having no connections, family or other support in New Zealand. The Court of Appeal has recognised that:3

… on occasions when a foreign national is required to serve a sentence in New Zealand a discount to his or her sentence may be warranted to reflect the challenges he or she will face when coping with language, cultural and social issues in a New Zealand prison.

[10]     In the same case, however, the Court of Appeal went on to note:4

Mr O’Connor chose to play a pivotal role in the importation of a large quantity of methamphetamine into New Zealand. He consciously ran the risk of being caught, convicted and sentenced to a long period of imprisonment in New Zealand.

[11]     The same can be said of you, Mr Chan: you came to New Zealand with the express purpose of committing a crime that causes very significant harm to this country.  You consciously ran the risk of being caught, convicted and sentenced to a long period of imprisonment in New Zealand.  There is no evidence that you suffer from any particular language difficulties; your Canadian citizenship and your comments to the pre-sentence report writer, and indeed your letter, suggest that you possess some degree of fluency.   In any event, prison authorities can make adequate arrangements to ensure that you understand what you need to understand.5   Nor do I consider that the separation from your wife and children is a factor that carries any significant weight, although I accept that they may be unable to visit you in prison.  I give a small discount of two months to reflect that separation from your family.

[12]     Taking a starting of 13 years and 10 months’ imprisonment, allowing a two month discount to recognise the difficulties of serving a prison sentence in New Zealand and allowing a 20 per cent reduction for your guilty pleas brings me to an end

sentence of 10 years and 11 months’ imprisonment.

3      O’Connor v R [2016] NZCA 414 at [33].

4 At [36].

5      Shen v R [2017] NZCA 103.

[13]     There is then the matter of a minimum period of imprisonment or MPI.

Ms Culliney for the Crown, in written submissions filed for the sentence indication hearing, sought an MPI of 50 per cent or approximately five years and six months’ imprisonment.  In oral submissions, today Ms Culliney submitted that an MPI should be two-thirds.  Mr Hislop, unsurprisingly, submits that the imposition of an MPI is unnecessary in the circumstances of this case.  He says that although the offending is serious, it is essentially a sole instance of serious criminal behaviour in an otherwise law-abiding life and that you are unlikely to offend again in the future.  He further notes that in any event you will be deported from New Zealand at the conclusion of your sentence.

[14]     Section 86 of the Sentencing Act 2002 provides that the Court may impose an MPI of more than one-third of the total sentence if it is satisfied that a one-third period would be insufficient to:

(a)       hold the offender accountable for the harm done to the community by the offending;

(b)      denounce the conduct in which the offender was involved;

(c)       deter the offender or other persons from committing the same or a similar offence; and

(d)      protect the community from the offender.

[15]     I am satisfied that an MPI of 50 per cent is appropriate in the circumstances of this case.  You were a pivotal member of the conspiracy, which if successful would have caused a very significant amount of methamphetamine to be sold into the New Zealand community. I do not consider an MPI of one-third would be sufficient to hold you accountable for the harm done to the community by this type of offending or to denounce your conduct.  Moreover, and as submitted by the Crown in respect of your sentence indication, I consider the Court should send a strong deterrent message that bringing “new” drugs, yet to be classified as controlled drugs, into the country in order

to circumvent our importation and manufacturing laws will be met with a stern response.

[16]     Mr Chan, please stand.

[17]    On the charge of conspiracy to manufacture methamphetamine, you are sentenced to 10 years and 11 months’ imprisonment.  You will be required to serve half of that sentence before being eligible for parole.

[18]  On the charge of possessing material with intent to manufacture methamphetamine,  you  are sentenced to  four  years’ imprisonment, to be served concurrently with the lead sentence.

[19]   On the charge of possessing equipment with intent to manufacture methamphetamine,  you  are sentenced to  four  years’ imprisonment, to be served

concurrently with the lead sentence.

Gordon J

ANNEXURE