R v Huang

[2022] NZHC 3323

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2020-004-9587

[2022] NZHC 3323

THE KING

v

JIE HUANG

Hearing:

9 December 2022

Appearances:

R McCoubrey for the Crown

J-A Kincade KC (by telephone) and W Mohammed for the defendant

Date:

9 December 2022

SENTENCING NOTES OF CAMPBELL J

R v HUANG [2022] NZHC 3323 [9 December 2022]

Introduction

[1]    Mr Huang, you appear for sentence this morning for serious offences. You pleaded guilty to  one  charge  of  unlawful  possession  of  a  firearm,1  one  charge of possession of cannabis for sale,2 and one charge of money laundering.3 You were found guilty at trial of two charges of conspiracy to import methamphetamine,4 and one charge of supplying a co-defendant, Seiana Fakaosilea, with methamphetamine.5

[2]    My job today, on behalf of the community, is to impose a sentence on you for those offences.

Offending

[3]    Mr Huang, your counsel, Ms Kincade KC, attached a summary of facts to her submissions. Mr McCoubrey, for the Crown, said that summary was accurate. As the trial judge, I agree that the summary is accurate, subject to one matter that I will come to.

[4]    In 2020, the Police National Organised Crime Group began an investigation into a drug syndicate  involved  in  the  importation  and  commercial  scale  supply of various controlled drugs around New Zealand. Mr Fakaosilea was at the head of the syndicate.

[5]    On 9 March 2020,  Police  intercepted  a  conversation  between  you  and  Mr Fakaosilea, in which you discussed an importation of methamphetamine from Fiji to New Zealand. You also agreed to import a further 600 kg of methamphetamine from South Africa. Mr Fakaosilea told you he would bring another of your co-defendants, Mr Pelikani, over to your house to discuss the South African importation. The next day, Mr Fakaosilea picked up Mr Pelikani and drove to your house. There, the three of you discussed the South African importation.

1      Arms Act 1983, s 45(1). Maximum penalty: four years’ imprisonment or a $5,000 fine.

2      Misuse of Drugs Act 1975, s 6(1)(f). Maximum penalty: eight years’ imprisonment.

3      Crimes Act 1961, s 243(2). Maximum penalty: seven years’ imprisonment.

4      Misuse of Drugs Act, s 6(1)(a) & (2A). Maximum penalty: 14 years’ imprisonment.

5      Section 6(1)(c) & (2). Maximum penalty: life imprisonment.

[6]    Ms Kincade’s summary says that during the following months Mr Fakaosilea and Mr Pelikani met with you on numerous occasions where you continued to discuss the planned importations. I accept that you had those meetings, but I am not satisfied that you discussed the planned importations at them.

[7]    On 10 March 2020, you supplied Mr Fakaosilea with 10 ounces of methamphetamine.

[8]    On 2 December 2020, Police terminated the investigation by executing search warrants. Officers searched your East Tamaki home, where you lived with your parents. There, they found an electronic money counter, digital scales, empty ziplock bags containing residue, cash  of  $2,240,  a  shotgun  and  approximately  3.15  kg of cannabis. The shotgun was in a wardrobe in your father’s bedroom.

[9]    The Police investigation revealed that,  in  February  2020,  you  purchased an Audi car for $190,000 on Trade Me. You paid for the car with $187,000 cash and a bank transfer for the balance. This transaction, together with the cash and drugs found at your  home,  showed  that  you  profited  from  the  sale  and  distribution  of methamphetamine and other controlled drugs.

Approach to sentencing

[10]   Mr Huang, in sentencing you I need to hold you accountable for the harm that your offending has done to the community, promote in you a sense of responsibility for that harm, denounce your conduct, deter you and others from committing similar offending, and assist in your rehabilitation.6

[11]   I need to consider the gravity of your offending and your degree of culpability, the  seriousness  of  these  offences  and  the  general  desirability  for  consistency  in sentencing. I must also  impose the  least restrictive  outcome  that is appropriate in the circumstances.7

6      Sentencing Act 2002, s 7(1).

7      Section 8.

[12]   Determining the appropriate sentences involves two steps. First, I must determine a term of imprisonment as the “starting point” for your sentence, which will be based on the seriousness of the offending for which you have been convicted. Secondly, I will consider your personal circumstances, including the appropriate allowance for your guilty plea.8 This will produce your end sentence.

Starting point

[13]   Mr Huang, the Crown submitted that I should set a starting point of eight years’ imprisonment for your conspiracy charges, and then apply uplifts of three to four years to reflect your supply of methamphetamine and possession of cannabis,9 one year for your firearms offending,10 and one year for your money laundering offending.11 The Crown therefore said the global starting point should be 13 to 14 years’ imprisonment.

[14]   Ms Kincade said I should take your charge of supplying methamphetamine  as the lead offence and set a starting point of five and a half years’ imprisonment for that. She said I should allow an uplift of four years for your conspiracy charges, and an uplift of one year for the rest of your offending. She therefore said the global starting point should be 10 years and six months’ imprisonment.

[15]   Mr Huang, I consider that your conspiracy offending is the lead offending,   as on a standalone basis it attracts the highest starting point.   This is the approach     I took when sentencing Mr Pelikani.

8      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [45]–[47].

9      The Crown said a standalone sentence of seven years’ imprisonment would be warranted in respect of Mr Huang’s methamphetamine offending alone, citing Su v R [2020] NZCA 128; Gray v R [2020] NZCA 548; Smith v R [2020] NZCA 586; and Parkes v R [2020] NZCA 203. It said a standalone sentence of two to three years’ imprisonment would be appropriate for Mr Huang’s cannabis offending, citing R v Terewi [1999] 3 NZLR 62 (CA); R v Keefe CA275/02, 28 November 2002; Kennedy v Police [2017] NZHC 3066; and R v Sharpe HC Rotorua CRI-2010-063-4641, 22 July 2011.

10 The Crown said firearms offending, in combination with drug offending, routinely warrants uplifts of between 12 and 18 months, citing To’a v R [2020] NZCA 187 at [19]; R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338 at [41]; Mills v R [2016] NZCA 245 at [18]; Perez v R [2015] NZCA 267 at [51]; and Joyce v R [2020] NZCA 124 at [24].

11    The Crown said a standalone sentence for Mr Huang’s money laundering would be in the region  of three years and six months’ imprisonment, citing R v Wallace CA 415/98, 16 December 1998 at 8; Zhang v R [2010] NZCA 481 at [9]; R v Le [2018] NZHC 2199 at [16].

[16]    I had to consider those two conspiracies when sentencing Mr Fakaosilea. As I said then, there is nothing to suggest that your two planned importations could not occur or were improbable. But in each case there was nothing more than a conspiracy. By that I mean there was only the formation of an agreement and an intention to carry it out. There was no evidence of any steps taken to further the conspiracy. And while the agreement discussed things like quantities and price, there was almost no discussion of the roles that each of the participants was to play. In light of those features, but taking into account that there were two conspiracies and that one involved 600 kg of methamphetamine, I consider a starting point of eight years’ imprisonment would be justified for your conspiracy offending alone. That is the starting point I used when sentencing Mr Fakaosilea. I consider your role in, and responsibility for, the two conspiracies was equivalent to his.

[17]   I need to make some uplifts to that starting point to account for your other offending. I will begin with your methamphetamine offending. A Court of Appeal case called Zhang, as amended by a Supreme Court decision called Berkland,12 is the guideline decision on methamphetamine offending.13 The Court there set out five sentencing bands based on the quantity of methamphetamine involved in the offending.14 Because you supplied 10 ounces, or 283 grams, of methamphetamine to Mr Fakaosilea, your offending falls within band 3 of Zhang. Band 3 offending generally attracts a starting point of between six and 12 years’ imprisonment. Your quantity is in the lower quartile of that band.

[18]   Where an offender falls within a particular band primarily depends on the role the offender played. The Court in Zhang described three categories of role: lesser, significant and leading.15   The Crown submitted that you had a leading role, being    a wholesale supplier to Mr Fakaosilea  and  having  signs  of  commercial  profit.  Ms Kincade submitted you were on the cusp of leading and significant. I agree with Ms Kincade’s characterisation. You were motivated by, and enjoyed, financial gain.

12 Berkland v R [2022] NZSC 143.

13 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648. The Supreme Court adjusted the significant role profile in Berkland v R [2022] NZSC 143 at [71], which I have taken into account in accordance with [72(a)] of Berkland.

14 At [125].

15 At [126].

The ten ounces you supplied was a wholesale amount and I am sure that you knew   it would be on-supplied by Mr Fakaosilea.  You  were closer to the original source   of that  methamphetamine  than  Mr  Fakaosilea.   But  you  had  no  management   or operational function in Mr Fakaosilea’s drug syndicate. Once you supplied him with the methamphetamine, you had no control over its distribution.   I also keep     in mind that I am sentencing you on the basis that you have been convicted of only one charge of supplying methamphetamine.

[19]   Taking into account those features and the quantity of methamphetamine you supplied, I consider a standalone  sentence  of  seven  years’  imprisonment  would be warranted for your methamphetamine offending.

[20]   As for the charge of possession of cannabis for sale, I consider that a standalone sentence of two years and six months’ imprisonment would be warranted, given that

3.15 kg was involved and there was clear evidence of commercial dealing.16

[21]   Standing back and looking at your drug-offending as a whole, I consider your methamphetamine and cannabis offending warrants a two-year uplift to your starting point.

[22]   Next is  your  firearms  offending.  In  sentencing  your  co-defendant  Rhakim Mataia, I referred to appellate authority stating that uplifts of between 12 and 18 months’ imprisonment are appropriate where drug dealers have been found with firearms in their possession. In his case, I imposed an uplift of 12 months.17 I consider a smaller uplift is needed in your case. In Mr Mataia’s case there were two pistols, both loaded. In your case, there was one shotgun, and no suggestion of ammunition. Further, the gun was recovered from your father’s room. I will impose an uplift of six months.

[23]   Finally, there is your money laundering offending. There is no guideline judgment  controlling   sentencing   for   money   laundering.   Laundering   money in connection with drug offending is very serious. I consider it an irresistible

16     R v Terewi [1999] 3 NZLR 62 (CA), applied by analogy in R v Keefe CA275/02, 28 November 2002 at [11].

17     R v Fakaosilea [2022] NZHC 3207 at [52].

inference, based on your other offending and the evidence of commercial dealing found in the search of your home (such as photographs of bundles of cash on your phone) that the laundering here was connected to drug offending. I consider that your money laundering offending would attract a standalone sentence in the region of three years and six months’ imprisonment.18 In assessing the appropriate uplift, I take into account that I have already reached a starting point of ten years’ imprisonment for your other drug offending. In that context, I consider only a six-month uplift is justified for the money laundering charge.

[24]   In summary, I take a starting point of eight years’ imprisonment and apply uplifts totalling three years. I set a global starting point for your sentence of 11 years’ imprisonment.

Personal circumstances

[25]   I now turn to your personal circumstances and any uplifts or allowances to your starting point that those circumstances require.

[26]   I have received several letters from family and friends of yours. They all say that you are a kind person who acts selflessly to help and care for others. They attest to your excellent work as a builder, including while you were on EM bail for these charges. They also say that since your arrest you have tried to change into a better person.

[27]   I have also been provided with a report prepared by clinical psychologist Greg Woodcock. Mr Woodcock administered a range of psychometric tests on you. His report does not identify any factors that could be said to lessen your culpability for your offending.

[28]   This morning I have also received a letter from you, dated in mid-November this year. This letter, I accept, expresses your genuine feelings and shows your genuine regret for your actions. In the letter you said that you just want to get back to the

18     See Williams v R [2021] NZCA 333.

community and be a better man for your family. I accept that that is your wish and intention.

Previous good character

[29]   The Crown submitted, and I accept, that you are entitled to credit for your lack of previous convictions and your good character.19 The letters that I have received attest to your otherwise good character, including significant contributions to your community. I allow a credit of 22.5 per cent for this.

Rehabilitative prospects

[30]   I consider that you have good prospects for rehabilitation. In part I have allowed for this in the credit I have just given for your previous good character. But you have also taken concrete steps since your arrest to rehabilitate, by voluntarily completing a drug and alcohol course. Many of the letters of support attest to you taking various such steps. The way that you have dedicated yourself to work while on EM bail also shows your good prospects for rehabilitation. So does the letter you have written to me. I recognise all this with a 10 per cent credit.

Guilty plea allowance

[31]   You are also entitled to credit for your guilty plea. The credit can attach only to the charges to which you pleaded guilty.20 I will apply the credit to the notional starting point I would have set for the charges to which you pleaded guilty.21

[32]   For those charges, I would have been sentencing you for offending involving possession of a shotgun, possession of 3.15 kg of cannabis for sale and money laundering. I would have taken your money laundering charge as the lead offence for sentencing purposes. As I said earlier, that offending would attract a standalone sentence of three years and six months’ imprisonment. I then would have applied uplifts of six months for your firearms offending, and six months for your cannabis

19 Fangupo v R [2020] NZCA 484 at [58].

20 R v Fakaosilea [2022] NZHC 3207 at [87], citing Agar v R [2021] NZCA 350 at [30]–[37].

21 I consider the notional starting point, rather than the uplift, to be the appropriate guide  for  the guilty plea credit. This is because the credit should not be affected by the decision as to which of the offending is the lead offending.

offending. I would have set a global starting point of four years and six months’ imprisonment.

[33]   I consider a 15 per cent credit is appropriate to give to your guilty pleas to those charges. A 15 per cent credit from the starting point of four years and six months amounts to eight months.

Credit for time spent on bail

[34]Finally, you are entitled to credit for the time that you spent on EM bail.22

[35]   There is no fixed formula to be applied. Much turns on the relative restrictiveness of the bail conditions and your compliance with them.23

[36]   You were granted EM bail on 12 February 2021. You  were  initially subject to a 24-hour curfew, seven days a week. At some point in 2021 that curfew was relaxed to 9 pm to 7 am, except on Sunday when you remained on a 24-hour curfew. In December 2021, you went to a 9 pm to 7 am curfew each day of the week.

[37]   You remained on EM bail for almost all of the time until the end of your trial on 11 August 2022. This was about 18 months in all.

[38]   I have not been able to determine how long you were subject to a 24-hour curfew. I will assume that it was a six-month period and that the remaining 12 months were on the less restrictive conditions. On that basis, I consider an overall credit of six months is appropriate.

End sentence

[39]   Mr Huang, I take a starting point of 11 years’ imprisonment. I apply discounts of 22.5 per cent for your previous good character, 10 per cent for your prospects for rehabilitation, eight months for your guilty plea, and six months for the time you spent

22     Sentencing Act, ss 9(2)(h) and (3A).

23     Section 9(3A).

on  EM  bail.     This gives an end sentence of six years and three months’ imprisonment.

Result

[40]Mr Huang, please stand.

[41]   For each of your convictions on two charges of conspiracy to import methamphetamine, I sentence you to six years and three months’ imprisonment. For your conviction on a charge of supplying methamphetamine, I sentence you to five years’ imprisonment.   For your conviction on a charge of money laundering,   I sentence you to two years’ imprisonment. For each of your convictions on a charge of unlawful possession of a firearm and a charge of possession of cannabis for sale,   I sentence you to six months’ imprisonment. All these sentences are to be served concurrently.

[42]Please stand down.

Campbell J