R v Kent HC Auckland CRI 2009-004-22697

[2010] NZHC 1077

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-004-022697

THE QUEEN

v

TAN CHEE KENT

Hearing:         1 July 2010

Appearances: B D Tantrum for Crown

G J Newell for Prisoner

Sentence:       1 July 2010

SENTENCE OF KEANE J

Solicitors:

Crown Solicitor, Auckland

R V TAN CHEE KENT HC AK CRI 2007-004-022697 [1 July 2010]

[1]      Tan Chee Kent, you appear for sentence following trial for twice supplying the class A controlled drug methamphetamine, first on 5 August and then on 9

August 2006.

[2]      On 5 August, the Crown's case was, and the jury accepted, you purchased ten ounces of methamphetamine, at $11,300 an ounce, to on-sell it and you did so. On 9

August, the Crown's case is, and the jury accepted, you made a five ounce purchase, again on behalf of another, and you passed it on.

[3]      There was no evidence, the Crown contended, that you purchased for your own use. The quantities were too high. But, as you yourself have said, and it is a factor on sentence, you were then using. That is why you made those purchases. It is possible that you may have used some small part of what you purchased.

Report waiver

[4]      I do not have a pre-sentence report for you. You were to be interviewed on 14

June 2010. You were reluctant then to participate in an interview without first receiving advice. A report could not be prepared without an adjournment of this sentencing date. You do not seek one. You are aware, your counsel says, that you are to be sentenced to imprisonment. Despite that you waive your right.

[5]      I am able to sentence you, despite the absence of a report, under s 26 of the Sentencing Act 2002. I am satisfied that the principal matters in mitigation are before the Court. Material also is that your sentence is governed by a tariff decision, R v Fatu.1 There is no prospect in your case of a sentence short of imprisonment.2

Letters

[6]      Further, I have a number of letters which I have found helpful. The first is from you. You explain that in the months leading up to this offending you had become  a  regular  methamphetamine  user.  You  offended  to  meet  the  high  cost

involved. You accept full responsibility for your offending. You express sincere sorrow. You are distressed by the cost to your fiancée, to your family, to your parents, and the community. You hope never to offend in this way again.

[7]      I have letters from your family and your fiancée's family. Your father hopes you will take over his business on your release. Your elder brother describes how atypical this offending is of you. Your fiancée hopes still to marry you. Her parents and her brother all speak well of you. I have a letter from a family friend who is a Justice of the Peace. All stand completely behind you.

Temporary police officer

[8]      A fact that has emerged today, of which I was unaware until I received the Crown's submission, is that you were, until I entered convictions following the jury's verdict, a temporary police officer.

[9]      I am told by your counsel that, soon after you offended in August 2006, you applied to enter the police force. You underwent a urine test in September. That test was clear. You were suspended once this offending was discovered in May 2007. That you were able to enter and maintain that position until then, your counsel says, is evidence of your success in weaning yourself from your dependency.

[10]     There has been an issue today whether the fact that you were a temporary police constable on active service between October 2006 and May 2007 ought to be suppressed. If that fact were known, that might make it more difficult for you to serve the sentence I am about to impose.

[11]     Your counsel, having taken your instructions, does not press to have your name suppressed. The Crown opposes it, as does the New Zealand Herald. There is a public  interest  in  the  fact  that  you  became  a  police  officer  so  soon  after  such offending and I agree that this detail should not be suppressed. That decision is material to sentence, as I shall say shortly.

[12]     I must hold you accountable for the harm you have done, promote in you a sense of responsibility, denounce your conduct, deter you and others from acting in this way, protect the community and provide for the interests of any conceivable victim. I must also, so far as it is compatible, assist you with your rehabilitation and reintegration.

[13]     I must have regard to the gravity of your offending, the need to be consistent in sentence with other cases, the need to impose a sentence near to the maximum, should that be warranted. I must take into account the contrasting principles: the need to adopt the least restrictive outcome appropriate, the need to take account of anything that would make any otherwise proper sentence disproportionately severe, and the need to recognise you in the context of your wider family.

[14]     Where drug offending is as serious as yours is, personal circumstances and positive purposes and principles of sentencing do not normally have a large part to play.  Your sentence is governed, as you will be aware, by R v Fatu.3  However, in your case there are two other factors, apart from the efforts that you have made in the time since you were apprehended not to offend further.

[15]     One is the delay to trial, the subject of the stay application you made that was declined. Venning J then said if you were convicted, a discount on sentence would be within the discretion of the sentencing Judge. The second that has emerged today is the hardship you might suffer in the sentence you are about to serve, flowing from the fact that you were temporarily a police officer. That too is a discretionary factor

capable of mitigating penalty.4

3      R v Fatu [2006] 2 NZLR 72.

4      R v Dewar HC Hamilton CRI 2005-019-3213, 5 October 2007, R v Dewar [2008] NZCA 344; R

v Connolly HC Christchurch CRI 2008-409-014401, 17 December 2009, R v Connolly [2010] NZCA 129.

[16]     The Crown contends that the starting point to be taken for your two offences ought to be ten - 11 years imprisonment. They lie, the Crown contends, within the upper part of band three R v Fatu, or even on the cusp of band four.

[17]     You dealt in a large commercial quantity (420 grams). Band three concerns supplies in the range 250 - 500 grams and attracts starting points in the range eight -

11 years imprisonment. The sentence to be imposed on you depends therefore, the Crown says, on the extent to which any discount can be given you for the delay to trial and any hardship on sentence as a result of being a police officer.

[18]     The former, the Crown says, ought not to be significant although delay, as the Supreme Court said in R v Williams5, can be the source of a discount. As was said in R v Nepe,6 any discount will normally be where the terms of bail are tantamount to a confinement. Any discount for the fact you were temporarily a police officer, the Crown says, has to be set against the fact that you have been in custody. You have not obviously suffered. Also the fact that hardship to you can be met in the administration of your sentence.

[19]     The Crown accepts that your remorse is real and that you have made tangible gains since this offending, in the negative sense at least, that you have not offended further. That leads the Crown not to seek a minimum term in your case. The Crown does seek an order forfeiting $2,800 found in your bank account in May 2007.

Defence submissions

[20]     Your counsel emphasises how sincerely you regret having offended in this way. You are not, he says, part of the distribution network at the heart of which were Mr Voong and Mr Luo. Your offending was brief and opportunistic and soon over. It depended on your knowing Mr Luo. It ended when you fell out. It was confined to two transactions, however significant they were.

5      R v Williams [2009] 2 NZLR 750.

[21]     The  Crown's  starting  point,  ten  -  11  years  imprisonment,  your  counsel submits, stands too high. Your offending, he agrees, lies within band three R v Fatu, which for supplies between 250 - 500 grams attracts starting points in the range eight

- 11 years imprisonment. You are well within that band in a numerical sense, and not, as the Crown contends, right at the top. Nine years, he submits, would be proper.

[22]     It is next material, your counsel submits, that in the three years since you have not offended. By September 2006, soon after you did offend, you were able to undergo a urine test without showing any sign of use. You had received medical help then that you have since put to good use. You have strong family support and real remorse. All this, your counsel says, is both tangible and encouraging.

[23]     Secondly, your counsel submits, the pre-trial delay in this case, as Venning J found when resolving your stay application7, was three years. That is significant and, as he said, could be mitigating on sentence. That is so, your counsel says, even if your terms of bail were not as restrictive as those of Mr Luo. That can only go to the extent of any discount.

[24]     Finally, he submits, once your name is published as briefly a temporary constable, that will single you out in the prison population. It could have an effect on you and, though that cannot be identified with any precision today, it ought to be recognised as it was in the cases to which I have referred.

[25]    The Crown's application for forfeiture, your counsel submits, cannot be sustained. You offended in August 2006. You were not apprehended until May 2007. You had been in employment in the meantime. It cannot be said that the sum in your account was attributable to your offending.

6      R v Nepe [2008] NZCA 98.

7      Tan v R HC Auckland CRI 2007-004-022697, 11 September 2009.

Conclusions

[26]     You are, Mr Tan, yet another instance of a user who has become an offender in order to meet the cost of what is an extremely dangerous and expensive dependency.

[27]     Your offending was, I accept, opportunistic. It depended on you knowing Mr Luo rather than on any more sustained connection with the group of which he was part. The fact remains that you did offend whole heartedly and it is fortunate that it ceased as abruptly as it did. All that said, I accept your counsel's starting point for sentence for these two offences of nine years.

[28]     I then take into account the three factors to which there has been reference. The first is that this offending did happen in excess of three years ago, you had not offended before previously and you have not offended since. Everything that I have from your family, as well as from you, suggests that your life has fortunately stabilised. You have remained drug free. Even though this was drug offending, that deserves to be encouraged. I will discount your sentence on that account by six months.

[29]     Secondly, and distinctly, there was the delay to trial. That did not involve for you a remand in custody as it did for Mr Voong. It did not leave you subject, as it did Mr  Luo,  to stringent  terms  of  bail.  Your terms  of  bail  were  relatively  relaxed. Nevertheless there was the delay. For that you will have a further discount of six months.

[30]     Finally, there is the fact that you were a police officer for perhaps a little more than six months until you were apprehended. That ceased in May 2007 but it may still be a factor you will have to contend with in serving a sentence of imprisonment. How far I am not able to say. It may have little impact. It may have enough to require you to be segregated. That could involve hardship. On that account I will allow you a further six months discount.

[31]     For these two offences you will be sentenced to seven and a half years imprisonment. I decline the Crown's application for forfeiture. There is too large a gap between the date of your offending and the date when the money was discovered

in your account for any connection between the two to be safely inferred.

P.J. Keane  J