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 an important  purpose,  as  is  promoting  in  you  a  sense  of  responsibility  for  your offending and an acknowledgement of the serious harm that is caused by the manufacture and supply of methamphetamine.   At the same time, the purpose of sentencing any offender is to help that offender to get back into the community and to be a useful member of it.

[8]      In your case, the relevant principles of sentencing are the gravity of your offending, including your own culpability for that offending, the seriousness of the offending in comparison with other similar offending, and the general desirability of keeping consistency in appropriate sentencing levels.   I am directed to impose the least restrictive outcome that is appropriate for the offending but in the case of offending involving controlled drugs there is a presumption that imprisonment will be imposed.

Starting point

[9]      I come now to setting the starting point.  For sentencing involving the supply of pseudoephedrine, I am guided by a judgment of the Court of Appeal in the case of

R v Wallace and Christie,1  confirmed recently by the Court of Appeal as being the

1      R v Wallace and Christie [1999] 3 NZLR 159 (CA).

leading authority for offending involving class B drugs.  That was in the case of R v

Wang.2

[10]     In Wallace and Christie, the Court of Appeal said that for offending which was commercial activity on a major scale, the starting point for a principal offender will be more than eight years’ imprisonment, and in the very serious cases up to 14 years.  For commercial activity on a substantial scale, where there is sophistication and organisations with operations over a period of time, but not involving massive quantities of drugs, the starting point will be in the range of five to eight years’ imprisonment.  For smaller commercial operations, the starting point will be up to five years’ imprisonment.

[11]     In the submissions for the sentencing indication, I was referred to sentencing guidelines set out in the case of R v Fatu.3   That case referred to methamphetamine offending, but it is of some help in determining the seriousness of this offending.  It is relevant to consider the amount of methamphetamine that could be produced from the pseudoephedrine supplied.   But  I have to  be cautious  in  applying the Fatu guidelines and I must look at your offending as a whole.

[12]     Mr Northwood,  for the  Crown,  submitted that  what  is  relevant  for  your sentencing is the quantity of ContacNT involved, and your being a store-keeper, storing quantities of pseudoephedrine so that it could be supplied on to other people, and he submitted that you were part of a larger drugs operation.  On the basis of the second supply, alone, he submitted that your offending is clearly within the most serious band of offending described in Fatu.   He submitted that the starting point should be seven to eight years’ imprisonment.

[13]     Mr Kan submitted that your involvement was, he said, at the bottom of the ladder.  It was limited to two transactions within a short space of time, and it stopped well before the Police operation ended.  He submitted that there is nothing to suggest that  you  were involved  in the larger criminal  group, and  he submitted that the starting point should be around three and a half to four years’ imprisonment.

[14]      In relation to the pre-sentence report comments as to whether you knowingly committed the offending, Mr Kan submitted that you are not saying you did not know what you were dealing with, but it was a case of wilful blindness on your part.

[15]      I do not accept that your offending was only on the sidelines and at the bottom of the ladder.   In order for the drug operation to succeed, there had to be quantities of ContacNT stored at places such as your home, so that they could be available for on supply whenever required.  I could not describe your role as simply fleeting or very minor.  I have concluded that the starting point should be four years’ imprisonment, and this is the starting point I reached when I gave you the sentence indication.

[16]     Since I gave that indication, the Court of Appeal has released its judgment in Wang.4    In my sentence indication, I referred to the High Court judgment in Wang. That  High  Court  judgment  has  now  been  overturned  by the  Court  of Appeal’s judgment.5   The starting point in the High Court for Mr Wang was five years and six months’ imprisonment.  Mr Wang was involved with 35 kg of ContacNT.  When I gave your sentence indication I considered that a co-offender of yours who was involved  with  7 kg  of  ContacNT  should  have  a  starting  point  of  six  years’ imprisonment. Your involvement with 3 kg of ContacNT did not mean that I thought your starting point should be half that.  This is why I adopted the four year starting point for the sentence indication.

[17]     The Court of Appeal has now held that the starting point in Wang should have been at least eight years’ imprisonment.  I consider that the release of this decision does not materially affect the basis on which I gave my sentence indication.  With respect to the Wallace and   Christie categories, I am satisfied that your offending appropriately fits at the top end of the lowest category and that the starting point of four years is appropriate. Neither Mr Kan nor Mr Northwood submitted that I should re-visit the starting point adopted in the sentence indication.   In particular, Mr Northwood did not submit that the starting point of four years was manifestly inadequate in your case.

[18]     As noted in the sentence indication, I will allow a discount of seven months for your previous good character, family circumstances and remorse.  I will allow a further discount of 25 per cent for your guilty plea.   That results in an adjusted sentence of two years and six months’ imprisonment.

Sentence

[19]     Would you please stand.

[20]     Mr Ha, on each charge of supplying the class B drug pseudoephedrine, you are sentenced to two years and six months’ imprisonment, to be served concurrently. Your end sentence is two years and six months imprisonment.

[21]     Please stand down.

Andrews  J