R v Hung
[2017] NZHC 467
•16 March 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-004-2124 [2017] NZHC 467
THE QUEEN
v
TZU TE HUNG
Hearing: 16 March 2017 Appearances:
B R Northwood for Crown
M N Pecotic for DefendantJudgment:
16 March 2017
SENTENCING REMARKS OF LANG J
R v HUNG [2017] NZHC 467 [16 March 2017]
[1] Mr Hung, you appear for sentence having pleaded guilty to a charge of importing methamphetamine. Originally you also faced three charges of being in possession of methamphetamine for supply. The Crown has offered no evidence on those charges. I now discharge you on those charges pursuant to s 147 of the Criminal Procedure Act 2011.
[2] Your guilty plea followed a sentence indication at which I heard submissions from both counsel regarding the sentence to be imposed on you in respect of the importing charge. I do not propose to repeat the process by which I arrived at the indicated sentence. That will be found in my sentence indication remarks, which will be annexed to, and form part of, these sentencing remarks.
[3] In short, you pleaded guilty to importing 39.6 kilograms of methamphetamine on 21 February 2016. I took a starting point of 20 years imprisonment. I then reduced that by one year, or five per cent, to reflect the fact that you have previously been of good character. I then reduced the sentence further by four years nine months, or 25 per cent, to reflect your guilty plea. This produced an end sentence indication of 14 years three months imprisonment. I also said I would not impose a minimum term of imprisonment, because that was the approach taken by this Court in respect of your co-offender. You pleaded guilty on the basis of that indication.
[4] I have now received a pre-sentence report that provides me with assistance regarding your background and the circumstances giving rise to your offending. This shows that you were approached by another person in your home country. That person offered you the opportunity to travel to New Zealand. You took that opportunity because you had never travelled abroad before. You knew when you came to New Zealand that you would be assisting in the importation of drugs. You say, however, that you did not know that you would be required to physically deal with the drugs. You also say that you were then threatened by those above you in the organisation. This led you to conclude you had no option but to do as they said.
[5] That may be so, but nevertheless, you knowingly became involved in a very substantial importation of methamphetamine. People like you play an important role
in any drug importation because they protect the organisers from being arrested. That is why the Court imposes significant sentences of imprisonment when offenders such as you are detected.
[6] The only issue I need to determine is the extent to which, if at all, I should reduce the sentence further having regard to mitigating factors other than those for which I have already given you credit. In cases of serious drug offending, personal circumstances carry much less weight than is the case in other areas of the criminal law. Nevertheless, I feel that I can give you a modest discount to reflect two further factors. The first of these is the fact that you appear to demonstrate some insight into your offending. Your time in prison appears to have alerted you to the fact that New Zealand now has a widespread drug problem. You also say you feel ashamed for your actions before your family and also the people in New Zealand.
[7] The second factor I can take into account is that you will be required to spend a lengthy period in prison in a foreign country where you do not speak the language. This is going to make it harder for you to serve your sentence of imprisonment than would be the case if you were a citizen of this country.
[8] I propose to give you an allowance of six months to reflect those factors. This results in an end sentence of 13 years nine months imprisonment.
Sentence
[9] On the charge of importing methamphetamine, you are sentenced to 13 years nine months imprisonment.
[10] You are not required to serve any minimum term before being permitted to apply for parole. This means you will be eligible to apply for parole and to be
deported after serving one-third of your sentence.
Lang J
Solicitors:
Crown Solicitor, Auckland
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT
2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-004-2124 [2017] NZHC 222
THE QUEEN
v
TZU TE HUNG
Hearing: 21 February 2017 Appearances:
B R Northwood for Crown
M N Pecotic for DefendantJudgment:
21 February 2017
SENTENCE INDICATION OF LANG J
[1] At present Mr Hung faces four charges relating to the importation and possession of methamphetamine. His trial is due to commence on 27 February 2017.
[2] Mr Hung seeks a sentence indication, and has reached agreement with the Crown regarding a summary of facts for that purpose. A sentence indication is an indication of the sentence that would be imposed on Mr Hung if he was to plead guilty to a single charge of importing methamphetamine within a specified time. If Mr Hung does not accept the indication, he will be sentenced on the basis of the facts as the trial Judge finds them to be.
The facts
[3] The charge was laid after the police and Customs officers became aware of an importation from China of 39.6 kilograms of methamphetamine. Mr Hung is a Taiwanese National. He arrived in New Zealand from Taiwan on 20 January 2016. He did so for the express purpose of receiving a shipment of methamphetamine that was due to arrive in New Zealand from China.
[4] He and a co-offender, Mr Chen, arranged rental accommodation and a rental vehicle. The methamphetamine arrived concealed within a shipment of granite tea trays on 21 February 2016. The shipment was intercepted at the border and Customs officers replaced virtually all of the methamphetamine with a substitute substance known as a placebo. They then effected a controlled delivery to the address Mr Hung had rented. This was also the nominated address on the bill of lading attached to the consignment.
[5] The shipment was delivered to Mr Hung’s address at midday on 1 March
2016. Mr Hung and his associate, Mr Chen, then spent the afternoon unloading the consignment and removing the methamphetamine by smashing the granite tea trays open. They then divided the shipment into smaller quantities that were stored in plastic snaplock bags for distribution.
[6] By this stage the police had obtained an interception warrant from this Court authorising the interception of communications between Mr Hung, Mr Chen and others. This enabled them to monitor communications between members of Mr
Hung’s group. At about 9.30 pm on 1 March 2016, Mr Hung and Mr Chen met with another man, Mr Yim, in a supermarket carpark. There they handed to Mr Yim the material they had extracted from the granite tea trays. A short time later, however, Mr Yim discovered that the material he had been given did not contain methamphetamine. The three men met again later that night and Mr Yim handed back the material he had received earlier in the evening.
[7] On 2 March 2016, the police executed a search warrant at Mr Hung’s address. Inside they found the discarded material from the consignment of granite tea trays. They also found the material that Mr Hung and Mr Chen had extracted from that consignment still stored within snaplock plastic bags. Mr Hung made no comment when the police questioned him about his involvement in the importation.
Starting point
[8] The first step in the sentencing process is to select a starting point that reflects the overall seriousness of the offending. There is no dispute that this offending falls within Band 4 of the categories of case identified by the Court of Appeal in R v Fatu.1 In cases involving the importation of more than 500 grams of methamphetamine the starting point would generally be between 12 years and life imprisonment.
[9] The Judge who sentenced Mr Chen selected a starting point of 18 years imprisonment in respect of his role in the events I have described.2 Importantly, however, Mr Chen was not charged with importing methamphetamine. He was charged only with being in possession of methamphetamine for supply. The starting point for offending of that type is ten years imprisonment to life imprisonment.
[10] If Mr Hung was to plead guilty to importing methamphetamine, he would be acknowledging that he assisted or encouraged the importation of the methamphetamine. The sentence to be imposed upon him would be assessed having
regard to that fact. This means that a higher starting point would be selected than
1 R v Fatu [2006] 2 NZLR 72.
2 R v Chen [2016] NZHC 3037.
was the case for Mr Chen, because Mr Chen did not acknowledge any culpability in relation to the importation.
[11] Having regard to Mr Hung’s involvement as an importer of methamphetamine for the purposes of supply, I consider a starting point of 20 years imprisonment is appropriate.
Aggravating factors
[12] There are no aggravating factors that would increase that sentence, because
Mr Hung has no previous convictions.
Mitigating factors
[13] I would be prepared to give Mr Hung credit at this stage for two mitigating factors. I would first give a credit of five per cent, or one year, to reflect the fact that he has previously been of good character. This reduces the starting point to 19 years imprisonment.
[14] I would then reduce the sentence by four years nine months, or 25 per cent, to reflect guilty pleas entered at this stage. That may seem unusual given that the trial is to start in less than a week. Ordinarily, guilty pleas entered so close to trial would only attract a discount of ten to 15 per cent. To give Mr Hung full credit at this stage could be seen to minimise the value of guilty pleas entered by other offenders at early stages of the proceedings.
[15] In the present case the Crown supports full credit being given because it acknowledges that there are unusual features about this case. In particular, there have been difficulties because Mr Hung speaks no English. He has also had several changes of counsel. The reduction of the charges to a single charge of importation was apparently the subject of agreement with Mr Hung’s then counsel some considerable time ago, but subsequent changes of counsel meant that the agreement was never implemented. Mr Hung should not be penalised for that.
[16] This means that I am left with an end sentence of 14 years three months imprisonment without taking into account any additional factors that might emerge through the pre-sentence report for which a further modest discount might be available. These would include remorse and acknowledgement of the difficulty that Mr Hung will face serving a lengthy sentence of imprisonment in a foreign country where he does not speak the language.
Minimum term of imprisonment
[17] The final issue relates to the prospect that a minimum term of imprisonment might be imposed.
[18] In any case where a person is convicted of drug dealing of this magnitude, the Court must give consideration to imposing a minimum term of imprisonment because the statutory criteria are inevitably met. The Judge who sentenced Mr Chen, however, did not see fit to impose a minimum term of imprisonment upon him. Without passing comment on the correctness or otherwise on that decision, I consider it would be unfair to treat Mr Hung differently in relation to the question of minimum term of imprisonment. I would therefore impose no minimum term, and would leave it to the parole authorities to determine when Mr Hung should be deported.
Postscript
[19] Mr Hung has now pleaded guilty to the charge of importing methamphetamine. He has been convicted and remanded in custody for pre-sentence report and sentence on that charge at 9 am on Thursday 16 March 2017. Provided he maintains his plea, the Crown will offer no evidence on the remaining charges at
sentencing.
Lang J
Solicitors:
Crown Solicitor, Auckland