R v Chen

[2016] NZHC 3037

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-004-002124 [2016] NZHC 3037

THE QUEEN

v

YEN HUA CHEN

Hearing:	13 December 2016
Appearances:	B R Northwood for Crown B L Sellars for Mr Chen
Sentence:	13 December 2016

SENTENCE OF FOGARTY J

Solicitors:

Crown Solicitor, Auckland

B L Sellars, Auckland/Russell McVeagh, Auckland

R v CHEN [2016] NZHC 3037 [13 December 2016]

[1]      Mr Chen a number of charges were laid by the Crown against you.  Charges

1, 3 and 4 have now been dropped by the Crown in the light of your plea of guilty to charge 2, which I have just received and because pleading guilty to charge 2 does enable the Court to fix the appropriate sentence.

[2]      You have also agreed through your counsel to be sentenced today without the

Court obtaining a report from the Probation Service.

[3]      Crown counsel have advised me, quite properly, the only basis in his view for my reducing the sentence indication might be if I was prepared to enter a discount for significant remorse, but on top of the five per cent discount I have already allowed for no previous convictions and the 25 per cent for a guilty plea, I am satisfied that these are the maximum discounts I would allow from the indicative

sentence using the guide of the decision of R v Fatu.1

[4]      You have had the benefit of the sentence indication.   You have had advice from your counsel and pleaded guilty against the sentence indication of an indicative end sentence of 12 years six months’ imprisonment.

[5]      The reasons for this sentence are set out in the sentence indication, dated 7

December 2016, but also amended today to correct an error in paragraph [18].

[6]      So as I explained I am formally amending the date of the sentence indication

to today’s date which is 13 December 2016, and on charge 2 I am sentencing you to

12 years and six months’ imprisonment.

[7]      As I explained in the sentence indication I am not imposing a minimum sentence, but rather leaving the matter to be dealt with in the usual way by the Parole Board.

[8]      The background subject matter of this offending was an importation of a large quantity of methamphetamine from China in the amount of 39.6 kilograms of

1      R v Fatu [2006] NZLR 72 (CA).

crystals, which with the purity of 76 per cent, is the equivalent to 30 kilograms of pure methamphetamine.

[9]      The defendant Mr Chen, arrived from China to assist another man, Mr Hung, in receiving the consignment.  This suggests that Mr Chen was a significant player in the organisation of this importation.

[10]     The consignment was in 28 boxes described as granite tea trays.   It was intercepted by the Customs services.  The majority of the drugs were taken out and replaced with a placebo for the purposes of completing a controlled delivery.  The consignment was then delivered to the defendants, Mr Hung and Mr Chen, at a rented address.  Mr Hung had also arrived in New Zealand, from Taiwan, about three weeks before Mr Chen arrived.

[11]     Mr Hung and Chen were monitored supplying a drug dealer, Mr Yen, with what they thought was methamphetamine but was essentially repackaged placebo.

[12]     Mr Chen was a catcher and in that sense, disposable, but clearly had a very important element in the importation chain of events.   The Crown case is overwhelming and the Crown would have confidently expected a conviction.  The Crown submitted that an appropriate starting point is in the vicinity of at least 20 years’ imprisonment and that should he enter a guilty plea, he would be entitled to a discount  of  20  per  cent.    The  Crown  submitted  that  the  applicable  guideline

judgment is R v Fatu.2   The relevant band in this case being band 4 – supplying very

large commercial quantities (500 grams or more) – 10 years to life imprisonment. The most recent guide is the decision of Woolford J in R v Sze3 where the defendant received an overall starting point of 22 years’ imprisonment on a similar amount of methamphetamine (40 kilograms).

[13]     In this case, the amount of pure methamphetamine was around 30 kilograms. Mr Chen did not just function as a catcher.   He and the co-offender opened the

2      Above.

3      R v Sze [2016] NZHC 1703.

consignment package and subsequently weighed out the contents into individual plastic snaplock bags for on-supply and distribution.

[14]     Given the detection of this drug dealing enterprise from the outset, the New Zealand  Customs  Service  had  earlier  replaced  the  methamphetamine  with  the placebo.  Only two supplies took place – one of which was returned to the defendant (no doubt after appreciating they were supplied with a placebo). On 1 March, Mr Chen, together with another co-offender, arranged to meet a Mr Yim as a potential customer.  Upon meeting him Mr Chen removed a large plastic carry bag containing the re-packaged placebo from his vehicle and handed it to Mr Yim who secured it in the boot.  On the same day, Mr Chen was involved in a further arrangement to meet another potential customer.  This was Mr Wong, who in fact was an intermediary. The Crown accepts that Mr Chen was not expressly involved in the importation itself.   But after the goods had been received in New Zealand, he worked very closely with another associate in managing the onward supply of the drugs to buyers within New Zealand.   The Crown characterised Mr Chen and the co-offender as basically:

Catchers sent from Taiwan and China to handle the shipment of methamphetamine and move it onto the next layer of supply.  Mr Chen’s role can be seen as pivotal to the success of this large scale methamphetamine dealing operation.   Essentially Mr Chen and Mr Hung can be seen as the start of the New Zealand supply chain.

[15]     There is no doubt in my mind that these factors place the offending well within the band 4 of R v Fatu.  I am satisfied the defendant must be dealt with on the basis of the amount of the drug being ready for supply being 30 kilograms, rather than the actual amounts in question.

[16]     The Crown relied for guidance on the recent decision of Woolford J in R v Sze.4    Ms Sze was sentenced in the High Court having been convicted following a jury trial of one count of importing methamphetamine, one count of possessing methamphetamine for supply and one count of conspiracy to supply.  All charges involved approximately 40 kilograms.  Ms Sze and her husband, Mr Wyen arrived in

Auckland  from  Hong  Kong.    Once  they arrived,  they  arranged  delivery of  the

4      Above.

shipment to a house they were renting.  They went shopping and purchased a drill to be used for extracting the methamphetamine from the queue barrier poles.  About this time, New Zealand Customs were examining the imported shipment of queue barrier poles and discovered the methamphetamine.  Customs replaced the majority of the drugs with a placebo for the purpose of completing a controlled delivery.

[17]     A search warrant was then executed at the house rented by Ms Sze and her husband and inside were three backpacks containing 39 snaplock bags of the methamphetamine/placebo substance, which together weighed approximately 39 kilograms.  Also located were a set of scales, further snaplock bags and handwritten documents detailing the weight of each bag.

[18]     It  needs  to  be  kept  in  mind  Ms  Sze  was  offending  with  her  husband. Woolford J took into account that Ms Sze was not involved in the latter parts of the offending involving the pre-packaging of the drugs and the transportation of them to other suppliers.  He nonetheless adopted a starting point of 21 years’ imprisonment for the importation charge, with an uplift of 22 years taking into account the additional charges.

[19]     In comparing Sze to this case, the Crown submitted that because the amount of methamphetamine was 30 kilograms here rather than 39 to 40, a slightly lower starting point would be warranted.  It also accepted that the lead charge in Sze related to the importation of methamphetamine as opposed to possession for supply. Nevertheless it was submitted that Mr Chen’s level of culpability was similar to that of Ms Sze’s.  In the light of these submissions, the Crown suggested a starting point of at least 20 years.

[20]     Ms  Sellars  contended  that  an  appropriate  starting  point  would  be  in  the vicinity of 17 to 18 years’ imprisonment, with a credit of 5 per cent to recognise her client’s good character, and a further 25 per cent to recognise the defendant’s guilty pleas.  She submitted there were no intercepted communications indicating that Mr Chen would have known exactly of what he would be handling in New Zealand. She  submitted  that  he  was  essentially  a  catcher  engaged  to  catch  an  unknown quantity of drugs.   He falls to be sentenced on account of possession for supply

rather than importation.  The starting point in Fatu for band 4 possession for supply is 10 years to life, compared to 12 years to life for importation.   This indicates a slightly lesser degree of culpability.

[21]     On the facts of this case, I think this is a rather fine distinction.  Nonetheless it has some support in the facts, the address for the goods having already been rented by a co-defendant, Mr Hung.  In as much as he is characterised as a catcher, he is at the end of the importation activity and on the cusp of ongoing supply.   He was clearly involved in readying the goods for supply.

[22]     Defence counsel sought to distinguish this case from Sze, arguing that in that case Ms Sze and her husband had a greater role in organising the logistics in New Zealand, such as liaising with the logistics company, organising delivery, renting an address and purchasing a drill to extract the drugs from the package.   Further, Ms Sze had a number of communications with an unknown male in Hong Kong who was involved with the importation.   She travelled back to Hong Kong to relay information from her husband to the organiser.  She received a starting point of 21 years for her role.

[23]     I accept that this is a significant argument supporting a lower starting point than 21 years or 20 years.  I think an appropriate starting point is 18 years.  I choose

18 over 17 because of the quantity.   I regard 30 kilograms as a very significant quantity and I do not think that it makes any particular sense to distinguish it from 40 kilograms in Ms Sze’s case.  My reading of Fatu, the band 4 starting at 500 grams, quantities of 30 to 40 kilograms are essentially on the same scale.

[24]     I agree there is a basis for a discount of 5 per cent recognising that Mr Chen has no previous convictions, was previously of good character and that the Crown has acknowledged that a small discount can be warranted for this factor.  I also think it is appropriate that the defendant be entitled to the full 25 per cent discount.  That would lead to an end sentence in the vicinity of 12 to 13 years.  The Crown submissions did not work through discounts.  They allowed 5 per cent for previous good record and efforts at rehabilitation and for 20 per cent on the plea of guilty, but did not calculate the end sentence.

[25]     My sentence indication was to take 18 years’ imprisonment, allowing a total discount of 30 per cent, 5 per cent for personal mitigating factors and 25 per cent for a guilty plea – in total deducting five and a half years from 18, leaving an indicative end sentence of 12 years six months’ imprisonment.

[26]     The next question is to whether there should be a minimum sentence.   Mr Chen  will  be  deported  when  his  sentence  is  completed.     I  think  in  these circumstances a minimum sentence is not necessary and the matter should be left in the usual way with the Parole Board.

[27]     You  have  pleaded  guilty  to  charge  2.    I  enter  the  conviction.    You  are

sentenced to 12 years six months’ imprisonment.