R v Chourn
[2021] NZHC 1528
•25 June 2021
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-019-5021
[2021] NZHC 1528
THE QUEEN v
NARATH CHOURN
Hearing: 25 June 2021 Appearances:
D J McWilliam for Crown R Laybourn for Defendant
Judgment:
25 June 2021
SENTENCING REMARKS OF LANG J
Solicitors:
Hamilton Legal, Hamilton
R v CHOURN [2021] NZHC 1528 [25 June 2021]
[1] Ms Chourn, you appear for sentence today having pleaded guilty to charges of kidnapping1 and manslaughter.2
Background
[2] You are to be sentenced on the basis of an agreed summary of facts dated 2 February 2021. This records that your offending had its origins in events that occurred at and following a New Year’s Eve party held at a residential address in Hamilton on 31 December 2019. Several persons who attended the party consumed a powdered substance they believed to be the Class B controlled drug MDMA, or ecstasy. A number of them suffered adverse reactions and one subsequently died. A subsequent analysis of the substance showed that it contained traces of heroin.
[3] Associates of the person who died decided they would endeavour to try to identify the person or persons who had supplied the substance that led to their friend’s death. Their object was to mete out punishment to that person.
[4] Your role in events began after you were instructed by one of your co- defendants, Ms R, to find a Mr Sao Yean, whom it was believed may have been involved in the supply of the contaminated substance. Ms R has yet to stand trial, so I have anonymised her name. She instructed you to find and bring Mr Yean to her address.
[5] Approximately ten days later Mr Yean visited your home. You immediately sent Ms R a series of text messages telling her Mr Yean was with you and that you would bring him to her address. You and two associates then took Mr Yean to Ms R’s house where you found Ms R and several other persons awaiting your arrival. Mr Yean was then taken from your vehicle and escorted into a garage. You left the address at about that point.
[6] Approximately 15 minutes later you sent a text message to Ms R asking her not to hurt Mr Yean too much. After you left Ms R’s address Mr Yean was assaulted and interrogated about his suspected involvement in the supply of the contaminated
1 Crimes Act 1961, s 209 – maximum penalty14 years imprisonment.
2 S 171 – maximum penalty life imprisonment.
substance. The assaults ultimately resulted in Mr Yean’s death. His body was not found for some time. It was ultimately found in a trough on a rural property.
[7] The police investigation into Mr Yean’s death then took a considerable period of time. When the police eventually spoke to you, you acknowledged you had transported Mr Yean to Ms R’s address. You told the police Mr Yean had exited the vehicle of his own free will because he knew the occupants of Ms R’s address. You denied you had been involved in any plan to deliver him to the address.
[8] The Crown does not allege you were the principal offender involved in these offences. Rather, it accepts you pleaded guilty on the basis that you were a party to the offending under s 66(2) of the Crimes Act 1961. In other words, you shared a common intention with the persons at Ms R’s address that Mr Yean would be held captive at that address and that it was a probable consequence of this plan that he would be assaulted whilst he was there. Having said that, the Crown accepts you had no knowledge of the extent to which the assaults would occur or of the prospect that his death might follow.
Approach
[9] The sentence to be imposed on you is complicated somewhat by the fact that you were recently sentenced in the District Court to two years three months imprisonment on charges of supplying methamphetamine and offering to supply methamphetamine.3 The offending that gave rise to those charges was discovered when the police examined your cellphone during the investigation into Mr Yean’s death. This revealed that you were involved in the supply of methamphetamine.
[10] The summary of facts on which you were sentenced in the District Court records that you were a street level dealer who supplied or offered to supply methamphetamine having a total weight of 93.5 grams. This occurred between 1 March and 24 September 2020.
3 R v Chourn [2021] NZDC 11633.
[11] The Judge who sentenced you in the District Court took a starting point of four years six months imprisonment and then applied discounts to reflect your guilty pleas (25%), lack of previous convictions (10%) and matters set out in a cultural report your counsel provided under s 27 of the Sentencing Act 2002 (15%). This led to the end sentence of two years three months imprisonment.
[12] Both counsel acknowledge that I will need to impose a cumulative sentence on you today. This means a sentence that you will need to serve on top of the sentence imposed in the District Court.4 That must be done because the offending for which you are to be sentenced today is completely different in time, place and circumstance to the offending for which you were sentenced in the District Court. This means that I need to impose an end sentence that is not out of all proportion to the overall gravity of your offending.
Starting point
[13] The first step in the sentencing process is to fix a starting point that reflects the overall culpability of your offending. There are several aggravating factors inherent in your offending. The first is that it obviously involved a degree of planning and pre- meditation. The plan to find and confront Mr Yean had its origins some days before the date on which you eventually took him Ms R’s address.
[14] The second is that the plan to detain Mr Yean and interrogate him using force amounted to a form of vigilante justice in which those involved in the plan effectively decided to take matters into your own hands rather than leave it to the police to investigate. Thirdly, the plan involved several persons confronting Mr Yean and inflicting violence on him. You knew that this would be the case when you left him at Ms R’s address.
[15] You were not involved in the physical assaults that followed. However, you did know when you were delivering Mr Yean to Ms R’s address was that she and her associates would interrogate him, using force if necessary, about the supply of the contaminated substance. Your knowledge that violence was likely to ensue is
4 Sentencing Act 2002, s 85(2).
demonstrated by the text message that you sent to Ms R asking her to ensure Mr Yean should not be hurt too much.
[16] Finally, the offending resulted in Mr Yean’s death. This morning I have heard read three victim impact statements prepared by members of Mr Yean’s family. They provide heartrending evidence of the ultimate effect of the plan that you and other members of your group agreed to carry out. The offending ultimately resulted in Mr Yean being taken away at a young age from his loved ones. This has had a devastating effect, not only obviously for him, but for all of the members of his family. They have told me in heartfelt yet measured terms of the devastating effect that his death has had upon them. I am gratified to hear from your counsel this morning that you were moved by the statement by Mr Yean’s mother that she has found the strength to be able to forgive you. She says she needs to be able to do that so she can move forward. Nothing the Court can do today can bring Mr Yean back to his loved ones. I am encouraged to hear that you acknowledge your responsibility to his family for the part that you played in his death.
[17] There is no tariff or guideline judgment of the Court of Appeal setting the starting point to be applied in cases of manslaughter. This is because that particular crime can be committed in numerous different ways. In the present case I am satisfied that the most appropriate approach is to fix the starting point having regard to other comparable cases.
[18] The Crown has referred me to four cases that it says involve offending broadly similar to the circumstances of the present case.5 I use the words “broadly similar” advisedly because the factual matrix in every case is always unique. In the cases to which I have been referred starting points of between four and seven years imprisonment have been selected. The Crown submits that taking into account the aggravating factors of your offending a starting point of four and a half years imprisonment is appropriate. I did not take your counsel to argue with that submission. I agree that a starting point of four years six months imprisonment reflects the overall culpability of your offending on the present charges.
5 R v Lucas [2017] NZHC 651; R v Innes [2016] NZHC 1195; R v Smith, Wilson & Kerridge [2019] NZHC 2251 and R v Burke [2021] NZHC 136.
Aggravating factors
[19] You have no relevant previous convictions so there is no justification for increasing the starting point to reflect aggravating factors personal to you.
Mitigating factors
[20] The Crown accepts that you are entitled to a discount of 25 per cent, or one year two months, to reflect your guilty pleas.
[21] In the District Court the Judge also gave you a discount of ten per cent to reflect the fact that, at 35 years of age, you have just two previous convictions in 2009 for using a document to obtain a pecuniary advantage. These must have been of a minor nature because they resulted in an order being made that you come up for sentence if called upon to do so. However, it is now clear from the material before the Court that you had been using methamphetamine on a virtually continuous basis since 2009. In addition you have been selling it for the last four years or so. I do not see how a discount can realistically be given to reflect your previous good character given that background.
[22] I have, however, received a detailed report your counsel has provided under s 27 of the Sentencing Act 2002. I take this to be the same report your counsel provided to the Judge who sentenced you in the District Court. This makes it clear that you had a very difficult childhood. You and your family arrived in New Zealand as refugees in 1990 when you were just four years of age. You were born in Thailand and are of mixed heritage. You have, however, never returned to that country since your arrival in New Zealand.
[23] It is clear from the report that the departure of your father from the family unit when you were young was devastating for you and other members of your family. You are now estranged from your father and find it difficult to talk about him. His departure also meant your family was forced to cope with extremely difficult financial circumstances. Notwithstanding this it seems that you were able to complete your secondary school education and performed well both academically and on the sporting field.
[24] Ultimately, however, your downward spiral began after you commenced using methamphetamine in or about 2009, when you were approximately 23 years of age. You first became involved with drugs as a means of keeping your relationship alive because your partner at the time was a heavy user of drugs. You quickly became addicted and methamphetamine became the means by which you coped with issues that arose in your life. You became abstinent for a short period when your relationship with that partner ceased but you began using drugs again after your brother was sentenced to a term of imprisonment.
[25] Your drug use then resulted in you becoming involved with persons associated with gangs. In or about 2017 you began to sell drugs in small quantities to feed your own habit. This activity obviously reached its peak during the period that led to your arrest on the charges on which you were sentenced in the District Court. The report says you continued using methamphetamine right up until your arrest and remand in custody in 2020. You say you are now abstinent and you are motivated to seek help and undergo therapeutic rehabilitation. That is encouraging because you are the mother of two children aged 14 and seven years respectively. You obviously need to change your ways so you can resume a meaningful role in their lives.
[26] I am satisfied the issues you encountered when you were young, coupled with your long-standing addiction to methamphetamine, were substantial causes not only of the drug-related offending but also the series of events that led to the present charges. I propose to make an allowance of eight months, or 15 per cent, to reflect that factor.
[27] This means that the starting point of four and a half years imprisonment is reduced by one year ten months to one of two years eight months imprisonment.
Totality
[28] Given that I am required to impose a cumulative sentence, issues of totality need to be taken into account. If I was to impose a cumulative sentence of two years eight months imprisonment today you would be required to serve a total sentence of four years 11 months imprisonment.
[29] The Crown accepts this would be too high and that an adjustment for totality is required. Not surprisingly your counsel takes the same approach. Both say I should impose a cumulative sentence today that would require you to serve an effective sentence on all charges of four years imprisonment.
[30] I take a slightly different view because of the seriousness of the charges for which you are to be sentenced today. I consider a reduction of eight months is appropriate to reflect totality principles. This results in a cumulative sentence of two years imprisonment and would effectively require you to serve a sentence of four years three months imprisonment on all charges.
Sentence
[31] On both charges to which you have entered guilty pleas you are sentenced to two years imprisonment. Those sentences are to be served concurrently with each other but cumulatively on the sentence of two years three months imprisonment imposed in the District Court. This means you will be required to serve an effective sentence of four years three months imprisonment.
[32]Stand down.
Lang J
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