R v Ha - [2014] NZHC 2621

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-092-013289 [2014] NZHC 2621

THE QUEEN

v

QUAN HA

Hearing: 24 October 2014

Appearances:

B Northwood for Crown
M Kan for Defendant

Judgment:

24 October 2014

SENTENCING NOTES OF ANDREWS J

R v HA [2014] NZHC 2621 [24 October 2014]

Charges

[1] Mr Ha, you appear for sentencing today having pleaded guilty on 22 August

2014 to two charges of supplying the class B controlled drug pseudoephedrine. On each of those charges, the maximum penalty that can be imposed is imprisonment for
14 years.

[2] I record that before pleading guilty, you accepted a sentence indication I gave, of an end sentence of two years six months to two years eight months imprisonment.

Relevant facts

[3] You stored large quantities of ContacNT at your home and you supplied it on instructions from your co-defendants. You were identified as being involved in two transactions. On the first occasion, you were instructed to meet a co-defendant and to bring “two packs” with you. You met a co-defendant an hour later and gave him a plastic bag containing something similar in size to a basketball. The co-defendant then gave this to another co-defendant. On the second occasion, you were instructed to bring “two packs” and you delivered two packages each containing 1.5kg of ContacNT to your co-defendant. The quantity supplied on the first occasion is not known. The ContacNT supplied on the second occasion contained approximately
1210 grams of pseudoephedrine, with a street value of between $107,000 and

$121,000 and a potential yield of 600 to 900 grams of methamphetamine.

Personal circumstances

[4] I turn now to the pre-sentence report. You are 48 years old, self employed as a tile layer. You have two children, and board at your ex-partner’s address.

[5] You have no prior history of offending. The report-writer recorded that you deny committing your offending knowingly. You are assessed as being at a low risk of re-offending, but at a medium risk of harm to others due to the wider impact of class B drugs in the community. The report-writer says that you are highly motivated to comply with a community based sentence.

Sentencing process

[6] In sentencing you today, I must first establish what we call the starting point. The starting point is the sentence that would be imposed if you had been convicted after a trial in Court. The second step is to take that starting point and decide what adjustments should be made, in respect of any matters relating to your offending, which make it more or less serious, and in respect of matters that relate to you personally, as they may also lead me to adjust the sentence.

[7] I have to take into account the purposes and principles of sentencing. When the Court sentences offenders for dealing commercially in controlled drugs, the prime purpose is deterrence. Because of the harm done in the community by methamphetamine, which is the end-product of this offending, denunciation is…

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 Ha

Details

AGLC: R v Ha [2014] NZHC 2621
Case: [2014] NZHC 2621
Decision Date: 24 October 2014

CaseChat Overview and Summary

The defendant, Quan Ha, was convicted of two charges of supplying the class B controlled drug pseudoephedrine and appeared for sentencing before Andrews J in the High Court of New Zealand. The Crown argued that the starting point should be seven to eight years' imprisonment due to the defendant's involvement in a larger drug operation, while the defence contended that the starting point should be three and a half to four years' imprisonment, considering the defendant's limited involvement in two transactions. The court determined that the defendant's role was not minor and set the starting point at four years' imprisonment. After applying discounts for good character, family circumstances, remorse, and a guilty plea, the court sentenced the defendant to two years and six months' imprisonment on each charge, to be served concurrently. The defendant's total sentence was two years and six months imprisonment.

The legal issues the court had to decide included determining the appropriate starting point for the defendant's sentence, taking into account the gravity of the offending and the defendant's personal circumstances. The court also had to consider the purposes and principles of sentencing, such as deterrence, denunciation, promoting a sense of responsibility, and the general desirability of keeping consistency in appropriate sentencing levels. Furthermore, the court had to balance the defendant's culpability and the seriousness of the offending with his personal circumstances and remorse.

The court's reasoning and outcome were based on the established sentencing guidelines for drug-related offending, particularly the Court of Appeal's decision in R v Wallace and Christie. The court concluded that the defendant's offending fit at the top end of the lowest category, and the starting point of four years' imprisonment was appropriate. The court applied discounts for the defendant's good character, family circumstances, remorse, and a guilty plea, resulting in an adjusted sentence of two years and six months' imprisonment. The court's decision was consistent with the sentence indication provided earlier and did not materially change after the Court of Appeal's judgment in Wang.

In summary, the court sentenced Quan Ha to two years and six months' imprisonment for two charges of supplying the class B drug pseudoephedrine. The court considered the defendant's role in the drug operation, the quantity of drugs involved, and his personal circumstances in determining the appropriate sentence. The court applied discounts for good character, family circumstances, remorse, and a guilty plea, resulting in a final sentence of two years and six months' imprisonment, to be served concurrently.

Orders