R v Cho

Case [2018] NZHC 561 28 March 2018

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2012-404-464

CRI-2017-004-1955 [2018] NZHC 561

THE QUEEN

v

ALLEN BRYAN CHO SHALENDRA SINGH ALZAIN KHAN

BRENDON NGUYEN

Hearing: 28 March 2018

Appearances:

B Northwood for the Crown P Wicks QC for Mr Cho

S Lance for Mr Singh

J Kovacevich for Mr Khan
S Lack (on behalf of R Mansfield) for Mr Nguyen

Sentence:

28 March 2018

SENTENCE OF WOODHOUSE J

Counsel / Solicitors:
Mr B Northwood, Meredith Connell, Office of the Crown Solicitor, Auckland Mr P Wicks QC, Barrister, Auckland
Mr S Lance, Barrister, Auckland
Mr J Kovacevich, Barrister, Auckland Mr R Mansfield, Barrister, Auckland

R v CHO [2018] NZHC 561 [28 March 2018]

[1] Mr Cho, Mr Singh, Mr Nguyen and Mr Khan: you each appear for sentence for offences of dealing in class C controlled drug analogues, having pleaded guilty to the charges. Mr Khan, you also appear for sentence having pleaded guilty to three representative charges relating to methamphetamine dealing and a charge of participating in an organised criminal group.

Factual background and charges

[2] The drug analogue offences were uncovered as part of a police operation known as “Operation Ark” which commenced in 2010 and terminated in late 2011. A principal focus of Operation Ark was the activities of a company known as London Underground. That company imported, in powder form, very large quantities of the controlled drug analogue known as 4-MEC. That is an analogue of the class B controlled drug methcathinone. London Underground produced very large numbers of pills containing 4-MEC and, through various principals or major associates of London Underground, sold these pills at wholesale to dealers and they were then on- sold through the market. Evidence at the trial of the principals, and some others, at which I presided, established that the wholesale price of each pill was around $20 and that retail sales could be up to $40 and perhaps more. The evidence also established that London Underground had produced around 1.3 million pills, of which around 1.2 million had been sold into the market.

[3] I note that having presided at the trial at which most of the defendants were found guilty and then having sentenced those defendants, I have obviously enough a fair degree of knowledge of these matters. And most significantly for the purposes of sentencing, an understanding of relevant matters of parity between sentences imposed by me on defendants at the end of that proceeding and sentences I need to impose on you.

[4] I will summarise the offences each of you are to be sentenced on, with some further brief factual background. Estimated quantities and values of pills you dealt with are indicated later.

Mr Cho

[5] Mr Cho, you obtained pills from Mr Cameron, a principal associate of London Underground. He was not a principal of London Underground but connected to principals of that organisation. You supplied most of those pills to others, including your co-offenders…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cho

Details

AGLC: R v Cho [2018] NZHC 561
Case: [2018] NZHC 561
Decision Date: 28 March 2018

CaseChat Overview and Summary

The case of R v Cho and others concerns the sentencing of four individuals who were involved in the distribution of a class C controlled drug analogue, 4-MEC, as well as methamphetamine. The case was heard by Justice Woodhouse at the High Court of New Zealand, Auckland Registry. The primary legal issues involved the determination of starting points for sentencing, considering the nature and extent of the defendants' involvement in the drug trade, as well as the assessment of personal circumstances and other factors that could warrant reductions in sentence. The court had to balance the seriousness of the offending with mitigating factors such as delay in prosecution and guilty pleas.

Justice Woodhouse meticulously assessed the starting points for each defendant, taking into account the quantities of drugs dealt, the roles played by each individual, and the nature of their guilty pleas, which were based on recklessness rather than actual knowledge. The court also considered the broader context of the offending, including the assurances provided by the London Underground organisation that the drugs were legal. The starting points ranged from 5½ years for Mr. Cho to 2 years for Mr. Nguyen. For Mr. Khan, the court determined a starting point of 7 years for his methamphetamine dealing offences, with additional months added for the drug analogue offences.

After establishing the starting points, the court then considered personal circumstances, including the undue delay in prosecution and the defendants' guilty pleas. The court found a substantial reduction in sentence was warranted due to the lengthy delay, with a base reduction of 12 months applied. Additionally, the court accepted the defendants' submissions for a 25% reduction for guilty pleas. Individual assessments of personal achievements and circumstances led to further reductions for each defendant, resulting in sentences ranging from home detention for Mr. Cho and Mr. Singh, community detention for Mr. Nguyen, to a combination of home detention and imprisonment for Mr. Khan, who received the heaviest sentence due to his more extensive involvement in methamphetamine dealing.

The final sentences imposed reflected the court's comprehensive consideration of both the aggravating and mitigating factors, resulting in sentences that varied significantly among the defendants, demonstrating the court's effort to achieve just outcomes in each individual case.

Orders