R v Chou HC Auckland CRI-2007-004-8340

[2008] NZHC 2633

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-004-8340

QUEEN

v

TSUNG HUI CHOU

Hearing:         21 October 2008

Appearances: M Wharepouri for Crown

M Edgar and M Kan for Offender

Judgment:      21 October 2008

Sentence imposed:     Possession of methamphetamine for supply (x1)

Sentenced to Six and a half years’ imprisonment

SENTENCING NOTES OF ASHER J

Solicitors:

Meredith Connell, PO Box 2213 Auckland

M Edgar, Barrister PO Box 6462, Wellesley Street, Auckland

R V CHOU HC AK CRI-2007-004-8340  21 October 2008

[1]      Mr Chou, following a jury trial you were found guilty on 24 July 2008 of one charge of possession of methamphetamine for supply under s 6(1)(f) of the Misuse of Drugs Act 1975.

[2]      Your arrest followed the interception by the New Zealand Customs Service of a brown coloured cardboard package sent from China to New Zealand.   The package was not addressed to you and appeared to contain two electric hairdryers in packaging  material.    The  hairdryers  were  opened  and  it  was  found  that  their electrical components had been replaced with a cylindrical metal container.  Inside each of those containers was a single plastic bag containing a white substance that was established to be methamphetamine.   The total estimated weight of the methamphetamine was 280 grams, with a street value of approximately $280,000.

[3]      The articles were repacked, with 10 grams of methamphetamine left inside and the remainder substituted with salt.   The package was then delivered to the named address in the morning.  Later that day it was taken from that address to the Wakefield Street area.   It was then transferred to a green coloured Range-Rover, which you drove that evening from Wakefield Street to Mayoral Drive.

[4]      The police stopped you and the vehicle was searched.  Inside the vehicle the plastic bags that were used to carry the white substance, along with the hairdryers and other packaging items were found.  The outer wrapping used to post the article was not recovered.   The substance was salt, as the 10 grams of methamphetamine had already been removed.

[5]      When you were spoken to by the police you stated that you had received the package from people in an Internet café.   You said that you knew the package contained drugs but denied knowing what sort of drugs.  You gave evidence at the trial stating that you were not aware that the drug was methamphetamine, but the jury clearly rejected that evidence.

[6]      I am grateful to counsel for having conferred about the correct approach. They have both moulded their submissions around the leading case of R v Fatu [2006] 2 NZLR 72, and the categories set out in that case for sentencing purposes. Both counsel accept that your offending falls between the top of Band two and the bottom of Band three of R v Fatu.  Mr Wharepouri submits that a starting point of eight to nine years’ imprisonment is therefore appropriate.  Mr Edgar submits that a starting point of eight years is the correct starting point.   The Crown accepts that there are some mitigating factors relating to you personally.

Principles and guidelines

[7]      It is necessary to return to the case of R v Fatu.  That case sets out four bands in relation to the sale and supply of methamphetamine.  Those four bands are:

a)        Band one – low-level supply (less than 5 g) – two years’ to four years’

imprisonment.

b)Band two – supplying commercial quantities (5 g to 250 g) – three years’ to nine years’ imprisonment.

c)        Band three – supplying large commercial quantities (250 g to 500 g) –

eight years’ to 11 years’ imprisonment.

d)Band four – supplying very large commercial quantities (500 g or more) – ten years’ to life imprisonment.

[8]      R v Fatu did not directly concern possession for supply of methamphetamine, but in R v Conway CA275/04 23 March 2005, the Court of Appeal observed that it would be unrealistic to have separate sentencing bands for actual supply and possession for supply.   The offence itself with its substantial penalties already comprehends the very serious effects of methamphetamine use in our community.  It is not necessary to refer to any other cases save for R v Lee HC AK CRI-2007-004-

021125 14 December 2007, Williams J, which I will consider below.

[9]      In  terms  of  the  amount  of  methamphetamine,  the  280 grams  puts  your position towards the bottom of Band three, as set out in R v Fatu.   Mr Edgar did not suggest that the fact the substance in your possession when you were apprehended by the police was a placebo should be a mitigating factor.  He was right not to put that submission forward.  It would not be a correct response to facts of this kind if a responsible removal of methamphetamine by the authorities and its substitution for a harmless substance should give a boon to an offender.  The position is different from that of a person seeking to supply or sell a substance which is in fact not a prohibited drug on the basis that it is prohibited.  In that sort of situation, as was commented in R v Brown [1978] 2 NZLR 174 at 183, the fact that it is the misuse of actual drugs against which the legislation is ultimately aimed can result in some reduction in sentence. Here, however, the material would have been methamphetamine but for the intervention by Customs.

[10]     In fixing the starting point there are two matters of relevance.   First, you were, in my view, not a leader of this operation.  The drugs were not addressed to you and although you were clearly present when the packages were opened, my sense of the facts is that your role was not as an organiser.  It is difficult to be too specific as the actual facts are murky.  The jury did not accept your evidence, and there are no clear touchstones as to what happened prior to you being apprehended. However, I will treat your lesser role as relevant to fixing the starting point, in accordance with the indication that it is proper to do so in R v Fatu at [31].

[11]     The  second  factor  is  the  degree  of  commerciality  of  the  possession  for supply.  There is no evidence that you were making large sums of money personally as a consequence of your involvement, and indeed you assert that you were transporting the methamphetamine as a favour to a friend who had helped you out previously.   I cannot accept that this was so, given the lack of precision in your explanation and the jury’s rejection of it at the trial.  However, again it is my sense that you were not receiving a significant profit as a consequence of your involvement in the offending.

[12]     Mr Edgar  relied  on  the  case  of  R  v  Lee,  where  on  an  importation  of methamphetamine charge involving a very similar amount of methamphetamine, a starting point of nine years was reached by Williams J.  In that case the defendant had a more senior role than you did and there was a greater element of personal commerciality.  It is also relevant that in R v Lee the charge was importing, which in R  v  Fatu  resulted  in  an  uplift  of  10  to  20 percent  from  the  starting  points contemplated for the sale or supply of methamphetamine.  I therefore take the view that a starting point lower than the nine years adopted in R v Lee is appropriate.  For the reasons given I fix the starting point at eight years’ imprisonment.

[13]     I now turn to mitigating factors relating to you personally.  Mr Edgar relied in written submissions on R v Lee and the fact that the ultimate sentence imposed there was only four years’ imprisonment.  However, in that case there was a guilty plea and the offender was still at High School.

[14]     The pre-sentence report shows that you come from a good family.  You have been working to obtain a degree in graphic design at the Auckland University of Technology.  You have lived in New Zealand since 1997.  You do not appear to have a drug problem personally.  You have no previous convictions.  You now admit the offending and that you knew that the white substance was or should have been methamphetamine.  These factors have been amplified by the helpful submissions of Mr Edgar and by your letter to me.   I do, therefore, propose giving you credit for both being of good character and being genuinely remorseful.

[15]     I do also take into account your relative youth, although the emphasis that can be put on that must be limited given that you were 24 years old at the time of the offending.

[16]     The reduction I propose making in sentence on the basis of these mitigating factors is a reduction of one-and-a-half years, which will leave a net sentence of six- and-a-half years’ imprisonment.  The Crown has not suggested any minimum term, and I would consider that to be inappropriate on these facts.

[17]     Mr Chou I sentence you to six-and-a-half years’ imprisonment.  I do so with sadness because I have a sense that you are a person who has the potential to have a good life and to be a good member of your community, whether it is in New Zealand or Taiwan.  I am aware of your family being here and the stress that this has caused them.  I urge you to do as you say you will do and to use your time in prison wisely. When you come out of prison you must ensure that you do not infringe against the law any more.  On this basis I am sure you will have a good future.

……………………….

Asher J