R v Ip
[2016] NZHC 1825
•8 August 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-092-002502 [2016] NZHC 1825
THE QUEEN
v
SUI MAN IP
Hearing: 8 August 2016 Appearances:
Michael Regan for the Crown
Shane Tait for the DefendantJudgment:
8 August 2016
SENTENCING NOTES OF MOORE J
R v IP [2016] NZHC 1825 [8 August 2016]
Introduction
[1] Sui Man Ip you appear for sentence this morning on one charge of importing the Class A controlled drug methamphetamine.1 The maximum penalty for that offence is life imprisonment.2
[2] The Crown has provided me with an agreed summary of facts. I have also received both written and oral submissions from counsel when you last appeared to receive a sentence indication. Counsel have advised they are content for me to take those submissions as applicable to this morning’s hearing without the need to file supplementary material.
Facts
[3] The facts of the offending can be shortly stated. On 20 January 2016, you arrived at Auckland International Airport on board a flight from Perth, Australia. You are a Hong Kong national. You entered the country without incident. Later that day you moved into a flat in Mt Albert. On the tenancy agreement you called yourself “Christine,” which I understand is a name you use from time to time.
[4] On 4 February 2016, an officer from the Ministry of Primary Industries examined a package which had arrived at the International Mail Centre. The package was addressed to you at the Mt Albert address. Inside the package were, amongst other things, three cans labelled as stewed pork rib. A white crystalline substance, weighing a total of 1006 grams, was found secreted inside the cans. Testing revealed it was methamphetamine with a purity of 78 per cent.
[5] Your phone data was accessed by Customs. It was revealed you had sent a series of messages on 9 January 2016 to someone referred to as “Johnny” advising him that you had not been able to “receive it again”. “It” was plainly a reference to the package. You added it was still at Customs and there was a 90 per cent chance it would not be released. Johnny advised you to wait two more days. On 12 February,
you sent a further message to Johnny again stating you “didn’t receive it”. On
1 Misuse of Drugs Act 1975, s 6(1)(a).
2 Section 6(2)(a).
13 February, you sent a series of messages to Johnny advising him that you had been told to move to another address, presumably by another person associated with the importation. You told Johnny another attempt would be made to send the package to you. Later that day you began looking for a new address and eventually moved to Mt Wellington on 16 February 2016.
[6] Sometime later you attempted to leave the country but you were arrested by
Customs at the airport.
Personal circumstances
[7] You are a Hong Kong national who has not previously appeared before the New Zealand Courts. The pre-sentence report adds little to explain how it is you come to be in this position. You are reported as being raised in a middle class Hong Kong family. You described your life as “smooth” without any exposure to criminal activity. Unsurprisingly, your family is shocked, deeply worried and no doubt puzzled by the conduct which has led you down this path. It seems it may well have had something to do with you being naïve and too trusting of your manipulative boyfriend. But you accept your involvement and you do not seem to have attempted, at least to any great extent, to minimise your culpability. It will be reassuring to you to know your family remains supportive.
Submissions
Crown submissions
[8] The Crown submits a 13 year starting point is appropriate for your offending. It identifies as relevant the degree of commerciality involved in this case, the harm which flows from methamphetamine, and the level of premeditation, sophistication and organisation associated with the importation. The Crown accepts that a discount may be appropriate to reflect your previous good character and the hardship you will suffer in serving a term of imprisonment in a foreign country. The Crown also accepts that a guilty plea discount of 25 per cent is appropriate in recognition of your early plea. The Crown submits that a 50 per cent minimum period of imprisonment is appropriate in this case.
Defence submissions
[9] On your behalf, Mr Tait submits a starting point of 12 years’ imprisonment is appropriate. He points out that although the offending involved a significant degree of planning and organisation there were obviously other players higher up the tree who masterminded the operation remotely from overseas. Mr Tait also submits that you are entitled to discounts for your early guilty plea, remorse, previous good character, and the difficulties you will encounter in serving a term of imprisonment here. Counsel also submits that no minimum period of imprisonment is necessary.
Purposes and principles of sentencing
[10] The relevant purposes of sentencing are to hold you accountable for the harm you could have done to the community, the need to promote in you a sense of responsibility for, and an acknowledgement of that harm, the need to denounce the conduct you were involved in and to deter you or others from committing the same offence.3 In cases involving the commercial importation of methamphetamine, the last of these principles assumes particular importance. The Courts have often
described methamphetamine as a pernicious and highly addictive drug which causes incalculable and irreparable harm in the community. I can only endorse those comments.
[11] I must also take into account the principles of sentencing including the gravity of the offending, your degree of culpability, and the seriousness of this type of offence. I am mindful I must also impose the least restrictive sentence which is appropriate in the circumstances.4
Starting point
[12] R v Fatu is the tariff case for methamphetamine related offending.5 In that case the Court of Appeal set out the four sentencing bands for offending involving
the importation of methamphetamine:6
3 Sentencing Act 2002, s 7.
4 Section 8.
5 R v Fatu [2006] 2 NZLR 72, (2005) 22 CRNZ 410 (CA).
6 At [36].
(a) Band one — low level importing (less then five grams) — two years six months to four years six months imprisonment.
(b)Band two — importing commercial quantities (five grams to 250 grams) — three years six months to ten years imprisonment.
(c) Band three — importing large commercial quantities (250 grams to
500 grams) — nine years to 13 years imprisonment.
(d)Band four — importing very large commercial quantities (500 grams or more) — 12 years to life imprisonment.
[13] The Court emphasised that those bands are applicable to everyone who imports methamphetamine, “including those whose roles are as ‘mules’”.7 The more significant the role of the offender in the importation, the closer the sentence will be to the top end of the applicable sentencing band.8
[14] Your offending clearly falls within Band 4 of Fatu. Both the Crown and your counsel agree on that. The summary of facts, which you have accepted for the purposes of this sentence indication states that the amount of methamphetamine contained in the packages was 1006 grams. At a 78 per cent purity level this is the equivalent of 784.8 grams of pure methamphetamine. Accordingly, Band 4 is engaged, requiring a starting point between 12 years and life imprisonment.
[15] In setting this starting point I have considered a number of comparable cases referred to me by both the Crown and Mr Tait. Describing them in detail would serve little purpose, but I will footnote them for the benefit of counsel.9
[16] The most important consideration is the role that you played in the importation. I consider your role is most appropriately described as that of a
“catcher”, similar in culpability to the circumstances described in Law and Choi.
7 At [36].
8 At [36].
9 Chen v R [2010] NZCA 552; R v Law HC Auckland CRI-2008-004-006039, 13 May
2008; Choi v R [2011] NZCA 237, (2011) 25 CRNZ 262; R v Lau HC Auckland CRI-
2005-092-2600, 16 December 2005; Thackray v R [2016] NZCA 23.
While your role might be similar to the offender in Lau, that case obviously involved a significantly greater volume of methamphetamine. There is no evidence you were a ringleader or a serious player in the importation operation: rather, you had a specific and limited role to play. The summary of facts reveals you acted in accordance with the instructions you were given by others. Weighing up all these facts, I consider that a starting point of 13 years’ imprisonment is appropriate in line with that suggested by the Crown.
Personal mitigating and aggravating factors
[17] The Crown responsibly concedes that there are no aggravating factors personal to you. Turning instead to mitigating factors, I note from the outset the comments of Wilson J in the Supreme Court in Jarden v R:10
“As the Courts have repeatedly said, and as we emphasise again, in sentencing those convicted of dealing commercially in controlled drugs the personal circumstances of the offender must be subordinated to the importance of deterrence. But this does not mean that personal circumstances can never be relevant.”
[18] Mr Tait submits that you are remorseful and you should be entitled to a discount on this basis. I understand you have written a letter of remorse. I have not seen that and it was not attached to any of the papers provided. Inquiries with counsel are such that the document remains elusive. However, I accept you are remorseful, and I take into account the comments which confirm that in the pre- sentence report. I accept that you now understand the seriousness of what you did and you now regret it. That may well equate with remorse but I am far from satisfied it is at a level which could justify a discrete discount particularly in a case involving commercial dealing in methamphetamine.
[19] Mr Tait also submits that you are entitled to a discount for your previous good character. I accept you have no New Zealand convictions; this is barely surprising. You entered New Zealand only for the purpose of carrying out the current offending. You were here for a limited time. The Crown advises though you have no previous convictions in Hong Kong either. Despite this, in light of the
importance of deterrence in cases of serious drug offending, which has been
10 Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [12].
repeatedly emphasised, I do not consider it appropriate to give anything other than a modest discount for this factor.
[20] The same applies to the submission you should be entitled to a discount to reflect the hardship you will face serving a sentence of imprisonment in a foreign country, away from your friends and family, and with limited English language skills. In Machado-Pereira v R, the Court of Appeal stated:11
“Care is needed before too much weight is attributed in these situations to the impact of jail in a foreign country. It is undoubtedly an increased hardship, but in an area where deterrence is paramount, it must be recalled that the offender has chosen to run this very risk. The only reason Mr Machado-Pereira came to New Zealand in February 2012 was to bring in drugs. He left a few days later having done so.”
[21] Personal circumstances were also discussed by the Court of Appeal in the
2009 case of R v Chen,12 to similar effect which is a different case from that of
R v Chen that I referred to previously.13 There, the Court endorsed the view that:14
“Those who come to this country for the purposes of criminal offending on this scale take the risk that they will be caught and imprisoned far from their families. Deterrence will not be achieved if those who choose to target this country in that way are shown leniency when the risk they willingly undertake becomes reality.”
[22] A discount was given on this basis in R v Ogaz, where the Court of Appeal agreed with the District Court Judge’s decision to allow a discount of one year because the offender had suffered a severe beating on remand which had left him with significant injuries. He thus faced serving a long sentence in segregation.15
Additionally, the offender’s native language was Spanish and the Judge considered it likely he would encounter language difficulties. His family lived overseas and were impoverished meaning he would be unlikely to receive visits from his family.16
[23] I consider that on the information available, your circumstances are not as dire as those in R v Ogaz. I accept you are a Hong Kong national with no
11 Machado-Pereira v R [2015] NZCA 423 at [13].
12 R v Chen [2009] NZCA 445, [2010] 2 NZLR 158.
13 R v Chen, above n 9, noted above at [15].
14 At [174].
15 R v Ogaz [2007] NZCA 45.
16 At [28]–[30].
New Zealand family and your English language skills are limited. As such you will suffer from the effects of isolation. Regrettably, that is the cost of the offending. In cases such as yours, the principle of deterrence must be given primacy.
[24] Accordingly, I am prepared to recognise this factor has only minimal application. This, combined with your previous good character, justifies only a modest five per cent discount.
[25] Both Mr Tait and the Crown suggest a 25 per cent discount would be appropriate to reflect your early plea. I agree.
[26] Taking all these factors into account, your end sentence comes down to nine
years and three months’ imprisonment.
Minimum period of imprisonment
[27] I turn now to consider whether I should impose a minimum term of imprisonment or MPI. Section 86 of the Sentencing Act 2002 provides that if an offender is sentenced to a determinate sentence of two or more years’ imprisonment, the Court may at the same time order that the offender serve an MPI in relation to that particular sentence. The Crown has submitted that a minimum term of 50 per cent imprisonment is appropriate in your case.
[28] An MPI may be imposed to hold the offender accountable for harm done, denounce the offenders conduct, deter the offender or others from committing the same or a similar offence, or to protect the community from the offender.17
[29] The principles and purposes of sentencing contained in ss 7, 8, and 9 are also relevant in fixing an MPI. In your case, I note you will be deported at the end of your prison term and so you are unlikely to cause any further harm in New Zealand. I also note the author of the pre-sentence report evaluates your risk of re-offending as low. The issue is whether an MPI is necessary to denounce your conduct and deter other overseas operators offending in a similar manner. The Court of Appeal has
stated that “[i]t is almost invariable in cases of very serious drug offending that the
17 Section 86(2).
criteria for a s 86 order are made out.”18 In R v Anslow, the Court noted that MPIs have seldom been ordered when the finite sentence imposed is less than nine years’ imprisonment and have been more commonly ordered where the sentence is greater than nine years.19
[30] In this case, although your role in the operation appears to have been limited and you are unlikely to cause further harm to our community on your release, the nature of your offending is grave. Methamphetamine causes devastation in New Zealand communities. It is my view that the standard non parole period will not be sufficient to denounce your conduct and deter others from committing the same or similar offences.
[31] I thus impose an MPI of 50 per cent.
Conclusion
[32] Ms Ip, please stand. You are sentenced to nine years and three months’ imprisonment. I also impose an MPI of 50 per cent which by my calculation means you must serve something of the order of at least four years and seven months
imprisonment before you will be eligible to be considered for release. Stand down.
Moore J
Solicitors:
Crown Solicitor, Manukau
Mr Tait, Auckland
18 R v Aram [2007] NZCA 328 at [78].
19 R v Anslow CA182/05, 18 November 2005 at [27].
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