R v Chanthawong
[2022] NZHC 1623
•8 July 2022
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI 2020-019-006031
[2022] NZHC 1623
THE QUEEN v
PHRASIT CHANTHAWONG
Hearing: 08 July 2022 Appearances:
K Whyte for the Crown
T Sutcliffe for the Mr Chanthawong
Sentencing:
8 July 2022
SENTENCING NOTES OF VAN BOHEMEN J
Solicitors:
Crown Solicitor, Hamilton
Thomas Sutcliffe, Barrister, Hamilton
R v CHANTHAWONG [Sentencing Notes] [2022] NZHC 1623 [8 July 2022]
Introduction
[1] Mr Chanthawong, you appear today for sentencing having pleaded guilty on 17 May 2022 1 to five charges of supplying methamphetamine.2
[2]The maximum penalty for supplying methamphetamine is life imprisonment.3
[3] You also face a sixth charge of possession of methamphetamine for supply.4 The Crown has not offered evidence on that charge and invites me to dismiss it under s 147 of the Criminal Procedure Act 2011. I do so accordingly.
[4] My responsibility today is to sentence you for the five charges of supplying methamphetamine to which you have pleaded guilty.
[5]This is the process I will follow:
(a)First, I will outline the circumstances of your offending;
(b)Secondly, I will consider your personal circumstances relevant to the sentence;
(a)Thirdly, I will explain the approach to setting the sentence and discuss the requirements of the Sentencing Act 2002 as they apply in this case and in accordance with decisions of the Court of Appeal;
(b)Finally, I will impose the sentence I consider appropriate.
The offending
[6] Mr Chanthawong, you were charged in relation to Operation Oakville, a Police investigation into the large-scale distribution of methamphetamine and other drugs in the Waikato, Auckland and Wellington.
1 R v Chanthawong HC Hamilton CRI-2020-019-6031, 17 May 2022.
2 Misuse of Drugs Act 1975, s 6(1)(c).
3 Section 6(2)(a).
4 Section 6(1)(f).
[7] Police identified Mark Griffiths to be the leader of the operation. Mr Griffiths is a senior member of the Mongrol Mob Waikato Kingdom. Mr Griffiths worked closely with his partner and co-defendant, Sharon Marfell, in overseeing the activity of the wider group. Mr Griffiths and Ms Marfell were directly involved in obtaining large quantities of Class A and B drugs from several different sources. They distributed the drugs among other members of the group to on-sell.
[8] Mr Chanthawong, you were based in Auckland and were one of Mr Griffiths’ and Ms Marfell’s sources of methamphetamine. On five separate occasions between 19 September 2020 and 12 November 2020, you supplied Mr Griffiths and Ms Marfell with commercial quantities of the drug from your Auckland residence.
[9] The covert aspect of the investigation terminated on 12 November 2020 immediately following your fifth and final supply of methamphetamine.
[10]The Police arrested you on 12 January 2021 and you were held in custody.
[11] You were on parole at the time of your arrest for other serious drug offending. On 5 February 2021, you were recalled to prison. You have been serving out your previous sentence since then.
[12] On 17 May 2022, you pleaded guilty to the five charges of supplying methamphetamine.
[13] According to the Summary of Facts on which your guilty pleas were based, the amount of methamphetamine supplied by you on each occasion was:
(a)On 19 September 2020, an unknown amount but a commercial quantity.
(b)On 29 September 2020, 224 grams, for which you expected to be paid
$52,000 by Mr Griffiths.
(c)On 13 October 2020, an unknown amount but a commercial quantity.
(d)On 20 October 2020, at least 140 grams.
(e)On 12 November 2020, 124.1 grams.
[14] In summary, you supplied a total of at least 488.1 grams of methamphetamine to Mr Griffiths and Ms Marfell over three occasions and you have admitted supplying additional commercial quantities to them on two other occasions.
Personal circumstances
[15] I now address your personal circumstances relevant to your offending, drawing on the Department of Corrections’ pre-sentence report, the cultural reported prepared in accordance with s 27 of the Sentencing Act 2002 and the letter of support from your sister, Lecta Phissimai Chanthawong.
[16] The Pre-Sentence report was prepared on the basis of a telephone interview with you on 20 June 2022. It does not contain a lot of detail. The Cultural Report prepared by Ms Shelley Turner was based on a virtual meeting room interview with you and a phone interview with sister. There is considerably more detail in the Cultural Report, which I found to be of assistance.
[17] Mr Chanthawong, you are 38 years old. You were raised in Nong Khai, a small village in rural Thailand. As is customary in some areas of Thailand, your parents worked in Bangkok while you and your two sisters stayed on a farm close to your grandparents and other relations. Your parents provided money for your upbringing.
[18] When you were 13, your mother moved to New Zealand to be with her sister and gain employment. About a year later, your father was diagnosed with and died of lung cancer. You and your sisters then moved to New Zealand to join your mother.
[19] You found it difficult to adjust to life in New Zealand. You did not speak English and were bullied. You struggled to fit in and were held back at school.
[20] At 17, you met your then-partner with whom you had a child. You left school. You trained in gib stopping and became self-employed in the trade. However, you and your partner struggled to maintain a relationship. You worked during the day at your job and she worked nights at the Auckland casino.
[21] After about nine years, you and your partner separated, and your partner entered a new relationship. You were devastated. Your business was also struggling. You started associating with drug users and using illicit substances. You also ceased contact with your family. It is said you were suffering long-term trauma after the passing of your father and your cultural disconnection. You rapidly became addicted to methamphetamine.
[22] In early 2012, you were arrested and charged with manufacturing methamphetamine and possessing related equipment. In June 2012, you pleaded guilty to those charges. You were sentenced to concurrent terms of three years and two months’ imprisonment. You say you stopped using drugs during this sentence and have not used drugs since.
[23] After your release from prison, you entered a relationship with your current partner, with whom you have a daughter. But you stayed in contact with people you had met in prison. You engaged in further criminal activity with those associates, in particular the importation of Class B drugs in significant quantities. The evidence showed that you and an associate were involved in the importation of five packages containing either pseudoephedrine or ephedrine.
[24] You pleaded guilty to two representative charges of importation and, on 19 December 2016, you were sentenced to concurrent terms of six years’ imprisonment.5
[25] When your homes and vehicles were searched, the Police located $139,000 in cash, almost 644.9 grams of ephedrine and 2.5 grams of methamphetamine at your associate’s home. The Police found $548,740 in cash and 138.8 grams of methamphetamine in your home and vehicle. The cash was later forfeited under the Criminal Proceeds (Recovery) Act 2009.6
5 R v Chanthawong [2016] NZDC 25902.
6 Commissioner of Police v Chanthawong [2017] NZHC 906.
[26] You were released on parole in March 2020. After release, you began a building apprenticeship, working for your sister’s partner. You did not use methamphetamine.
[27] You told Ms Turner, the Cultural Report writer, that after your release on parole, you were approached by people seeking repayment of the money forfeited to the Police. You say you felt pressured to engage in the acts that have led to your arrest and your being sentenced today.
[28] As I have already noted, in February 2021 you were recalled to prison to serve out the rest of the term of imprisonment imposed in December 2016. Your release date from that sentence is later this month, 22 July 2022.
[29] The Corrections pre-sentence report assesses your risk of reoffending as high given the similarity between the offences to which you have pleaded guilty and your past convictions. For the same reason, the report assesses as high your risk of harm to others – the harm being the devastating effects of methamphetamine use and distribution.
Approach to sentencing
[30]There are two stages to this sentencing:7
(a)First, I must determine the appropriate starting point, adjusting for any aggravating and mitigating features of the offending itself.
(b)Secondly, I must adjust that starting point for any aggravating and mitigating circumstances relevant to you personally and for your guilty plea.
[31] The Crown also submits a minimum period of imprisonment is appropriate. I must, therefore, also consider whether to impose one, and if so for how long.
7 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
[32] In sentencing you, Mr Chanthawong, I must take into account the purposes and principles of sentencing as set out in the Sentencing Act. In particular, I must impose on you a sentence which holds you accountable for the harm methamphetamine offending does to the community, promotes in you a sense of responsibility for and acknowledgement of that harm, denounces your conduct, and deters you and others from committing similar offences in the future. The sentence must also reflect the gravity of your offending, the seriousness of this type of offending and the desirability of consistency with appropriate sentencing levels.8
[33] On the other hand, I must be mindful of the need to assist in your rehabilitation and reintegration into the community and I must impose the least restrictive outcome that is appropriate in the circumstances.9
[34] I must also take into account your personal, family and cultural background. In considering that background, I must take into consideration any report prepared in accordance with s 27 of the Sentencing Act, unless satisfied there is some special reason that makes this unnecessary or inappropriate.10
Stage one: starting point
[35] My first task is to set an appropriate starting point. Given the nature of your offending, the guidelines set by the Court of Appeal in Zhang v R for methamphetamine-related offending apply.11 Those guidelines require consideration of both the quantity of methamphetamine supplied and your role in the offending in determining which sentencing band you come within and where in that band you should be placed.12
[36] On quantity, as I have said, the total identifiable amount of methamphetamine you supplied is 488.1 grams. That places you in band three, for which a starting point of six to 12 years’ imprisonment is indicated, without taking into account the other two commercial quantities of methamphetamine you admit having supplied.
8 Sentencing Act 2002, s (7)(1)(a), (b) and (c).
9 Sections 7(1)(h) and 8(g).
10 Sections 8(i) and 27(2).
11 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
12 At [118].
[37] Both Mr Whyte for the Crown and your lawyer, Mr Sutcliffe, have submitted that you should be considered in terms of band three and I proceed on that basis. However, I have also had regard to cases at the lower end of band four, given the degree of overlap between the top end of band three and the lower end of band four and your admission of having supplied two other commercial quantities of methamphetamine in addition to the known amount.
[38] On role, the Court of Appeal has described three categories of role: lesser, significant and leading, and has provided descriptions of behaviours that come within those categories.13
[39] The Crown submits your role was “leading” and says the nature of the operation shows that you were motivated primarily by financial advantage and expected a commercial profit. I agree that you had that motivation and expectation. I do not accept, however, that this establishes that you had a leading role, having regard to the descriptions provided by the Court of Appeal.
[40] There is nothing in the Summary of Facts to suggest you had a directorial or organisational role in the operation, had influence over others in the supply chain, had close links to an original source or that you abused a position of trust or responsibility.
[41] Mr Sutcliffe submits you were a middleman in the operation and had an upper “lesser” or low “significant” role.
[42] The Summary of Facts, which you have accepted, describes you as having supplied wholesale quantities of methamphetamine to Mr Griffiths and Ms Marfell, who on-sold the drugs at a significant mark-up. The Summary of Facts indicates that, while you had expected to receive $52,000 for the 224 grams supplied on 29 September 2020, Mr Griffiths and Ms Marfell expected to realise of the order of
$90,000 from on-selling that quantity – based on their expected sale price of $400 per gram.
13 At [126].
[43] Against that background, I agree that “middleman” is an appropriate description. However, I consider Mr Sutcliffe understates the significance of your role.
[44] You clearly played a key operational role in sourcing and supplying the methamphetamine. As I have already accepted, you were motivated primarily by financial advantage and expected a commercial profit – considerations which the Court of Appeal ascribes to a significant role. You understood the scale of the operation. While you say you felt pressured into the role because of the obligation to repay the money forfeited following your arrest for pseudoephedrine importation, there is no direct evidence of intimidation. What does seem clear is that you performed an important function as wholesale supplier to Mr Griffiths and Ms Marfell, but you had little influence on those above or below you in the chain. Given your previous history with controlled drugs, naivete was clearly not a factor. Nor, you acknowledge, was addiction.
[45] For these reasons, I am satisfied that your role is properly categorised as “significant”, without any qualification of that description.
Aggravating features of the offending
[46] The Crown submits that the commerciality and scale of the offending, the degree of premeditation and planning and the social harm to the community caused by methamphetamine use are all aggravating features of the offending. However, I consider that these factors are inherent in any offending within the upper levels of band three and do not warrant specific attention in this instance.
Starting point
[47] Given that you supplied at least 488.1 grams, which is close to the top of band three, have admitted supplying two other commercial quantities of methamphetamine, and had a significant but not leading role, I consider a starting point of nine and a half years’ imprisonment to be appropriate.
[48] That is consistent with the starting point upheld by the Court of Appeal in Clark v R.14 Mr Clark came within band four rather than band three because he had been found with 583 grams of methamphetamine in his possession. However, the actual quantities involved in the two cases are similar, as are the respective categorisations of role. Given the broad overlap in indicated sentencing starting points – six to 12 years for band three; eight to 16 years for band four, I am satisfied that nine and half years’ imprisonment is the appropriate starting point in this case.
[49] I consider your case to be different from Moheebi v R, where a starting point of 12 years’ imprisonment was upheld by the Court of Appeal.15 As the Court of Appeal observed, on the facts of that case:16
… there [was] an available inference here that Mr Moheebi was solely responsible for the importation of the drugs into New Zealand and expected to realise potentially significant financial benefits of the importation and subsequent supply, for himself. Mr Moheebi was not a link in a wider supply chain, but rather more, the entrepreneur.
[50] I also consider your case to be different from that in Martin v R, where the Court of Appeal also held a 12-year starting point to be appropriate.17 The known quantity involved was significantly higher than the present case and Mr Martin was also a sole operator.
[51] For these reasons, I adopt a starting point of nine and a half years’ imprisonment.
Stage two: aggravating and mitigating circumstances personal to you
[52] In stage two of the sentencing process, I adjust the starting point to take into account any aggravating and mitigating personal circumstances and your guilty plea.
14 Clark v R [2020] NZCA 641, at [17].
15 Moheebi v R [2020] NZCA 343.
16 At [21].
17 Martin v R [2020] NZCA 318.
Aggravating features
[53] As the Crown and Mr Sutcliffe agree, the main aggravating feature of your offending is that it was committed while you were still on parole for similar offending of a similar scale, albeit in relation to Class B rather than Class A drugs. The Crown says, and Mr Sutcliffe agrees, that, ordinarily, an uplift of 12 months’ imprisonment would be appropriate to reflect that serious aggravating feature. I agree.
[54] However, from February last year until now, you have been serving out the remaining period of your earlier sentence – which comes to approximately 18 months. Any uplift in respect of your previous offending to the sentence I am imposing today must avoid double counting and double punishment. For that reason, the Crown and Mr Sutcliffe submit that I should apply a discount of 66 per cent of actual time spent on recall, in line with the Court of Appeal’s decision in Thomas v R.18 I agree.
[55] The Crown and Mr Sutcliffe disagree, however, as to whether account should also be taken of your earlier offending in 2012. Mr Whyte says an uplift of at last 15 per cent would be warranted to take account of the two sets of previous offending. Mr Sutcliffe submits that the 12 months uplift for the 2016 offending sufficiently takes into account the 2012 offending.
[56] Having reflected further on the matter, I agree with Mr Whyte that an uplift of 15 per cent would be appropriate to take into account the two sets of prior similar offending. That would result in a notional uplift of 17 months. I deduct from that notional uplift the 12 months that takes into account your time in prison on recall. That results in an uplift of 5 months and an adjusted starting point of 9 years and 11 months’ imprisonment before account is taken of your guilty pleas and mitigating factors.
Guilty pleas
[57] You did not enter those at the earliest opportunity. Indeed, they were entered some 16 months after you were first charged. However, as Mr Whyte has helpfully
18 Thomas v R [2020] NZCA 257, at [20]
pointed out, one of your co-defendants, Mr Iakopo, who pleaded guilty some 10 days after you, received a 15 per cent discount.19 I consider you should receive the same discount.
Remorse
[58] Mr Sutcliffe submits that I should discount your sentence by five per cent for remorse or take remorse into account when considering any deduction in relation to the cultural report. Mr Whyte says you have not demonstrated genuine remorse that goes beyond accepting responsibility for what you have done.
[59] In her s 27 report, Ms Turner records that you accept responsibility for your actions and recognise the harm you have caused your family, society and yourself. Ms Turner also records you as saying that you accept that what you have done is really bad and that you would not have done it if the debt collectors had not knocked on your door. You also express sorrow for your partner of 10 years who had you at home for only seven months before you were sent back to jail.
[60] Whether that constitutes genuine remorse is difficult to tell. I accept that cultural and language factors may impinge on your ability to be more demonstrative in articulating remorse and I will take that into account in relation to the cultural report. However, I am not persuaded that any separate deduction should be made for remorse.
Cultural factors
[61] As I have set out earlier, you have had a difficult upbringing. You lost your father at 14. A year later you were removed from your country, your culture and the lifestyle you knew to a place and a culture with which you were not familiar. You struggled at school and were bullied.
[62] In her report, Ms Turner identifies a number of factors as causative of your offending. In summary, these are your cultural disconnection from Thailand, the grief trauma you experienced since the loss of your father and which continued through your separation from Thailand and the breakup of your first relationship, negative peer
19 R v Iakopo [2022] NZHC 1187.
influences after you separated from your family and the pressure from debt collectors seeking recovery of the money forfeited to the Police.
[63] I am prepared to accept there is some causal connection between some of these factors and your offending. At the same time, it is apparent that, despite your difficulties after arriving in New Zealand, you were able to establish a successful business reasonably soon after leaving school. It would appear that your path to drug use and crime began after the breakdown in your first relationship and that was caused by different lifestyles rather than cultural factors.
[64] It also appears that you managed to re-establish your life after your second period of imprisonment and that it was pressure from debt collectors rather than cultural factors that led to your re-offending. While I recognise that pressure was unwelcome, it was the consequence of earlier poor decisions you had made and, in my view, cannot be considered a significant mitigating factor.
[65] The cultural factors in your case do not equate with the serial deprivation that has been experienced by Māori and which, together with other factors, has been recognised as justifying discounts as high as 30 per cent.20 Nonetheless, as the Court of Appeal said in Zhang, social, cultural or economic deprivation that has a demonstrative nexus with the offending may be presented in mitigation regardless of the specific ethnicity of the offender.21
[66] I am satisfied that your life and your life choices, including the current offending, have been influenced by your cultural dislocation and associated difficulties and that sufficient causative nexus has been established.
[67] I have also taken into account the support you have and continue to receive from your mother and your sister and that you remain close to your current partner and your children, who have not seen much of their father in recent years. Clearly, it is in your children’s interests that they stay in contact with you and have you physically back in their lives as soon as possible. I am also satisfied that that would increase your
20 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.
21 Zhang v R, above n 11, at [162].
own prospects of rehabilitation and the prospects of your avoiding another relapse into offending.
[68]For these reasons, I am satisfied that a discount of 10 per cent is warranted.
End sentence
[69] This results in a total discount of 25 per cent on the adjusted starting point of nine years and 11 months’ imprisonment and an end sentence of seven years and five months’ imprisonment.
Minimum period of imprisonment
[70] Under s 86 of the Sentencing Act, I may impose a minimum period of imprisonment if I am satisfied that the non-parole period for your sentence under s 84(1) of the Parole Act 2002 is insufficient to hold you accountable for the harm to the community from your offending or to denounce your conduct, or to deter you and others from committing similar offending.22
[71] The Crown submits that I should impose a minimum period of imprisonment. Mr Whyte refers to Chai v R in which the Court of Appeal observed that a minimum period of imprisonment may be expected in cases of recidivist or commercial methamphetamine dealing.23 Your offending meets both criteria. In Chai, the Court of Appeal said that in such cases, imposition of a minimum period of imprisonment is not merely deserved, but necessary to hold the offender accountable, denounce drug dealing of this kind with the grievous social harm it causes the community, protect that community and to deter repetition.
[72] Mr Sutcliffe submits that no minimum period of imprisonment should be imposed given the unique context of your offending.
[73] Without a minimum period of imprisonment, the non-parole period on your sentence would be two years and six months’ imprisonment. There can be no
22 Sentencing Act, s 86(2).
23 Chai v R [2020] NZCA 202 at [39].
guarantee, of course, that you would be granted parole at that point, particularly given your previous history. I am satisfied, nonetheless, that a non-parole period of two years and six months would be insufficient, having regard to the considerations of accountability, denunciation and deterrence and to the observations of the Court of Appeal in Chai.
[74] For these reasons, I consider a minimum period of imprisonment of three years and four months or 45 per cent of the term of your sentence to be appropriate. But for your young children, that minimum period would have been higher.
Result
[75] Mr Chanthawong, on the five charges of supplying methamphetamine, I sentence you to a term of seven years and five months’ imprisonment.
[76] I also impose a minimum period of imprisonment of three years and four months or 45 per cent of the term of your sentence.
[77]Please stand down, Mr Chanthawong.
Forfeiture order
[78] As requested by the Crown, I order that the methamphetamine seized from Mr Chanthawong be forfeited so it may be destroyed.
G J van Bohemen J
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