R v Keophila - [2014] NZHC 1896

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-004-12426 [2014] NZHC 1896

THE QUEEN

v

AENOY JAY KEOPHILA THI HONG LAN NGUYEN

Hearing: 12 August 2014

Appearances:

YV Yelavich for Crown LO Smith for Keophila SJ Lance for Nguyen

Sentence:

12 August 2014

SENTENCING NOTES OF TOOGOOD J

R v KEOPHILA & NGUYEN [2014] NZHC 1896 [12 August 2014]

Introduction

[1] Aenoy Jay Keophila and Thi Hong Lan Nguyen: you appear for sentence having each pleaded guilty to 14 counts of possession of methamphetamine for supply. The maximum penalty for your offending is life imprisonment.

[2] In May 2012, you were found guilty by a jury and sentenced with five co- offenders on charges related to the distribution of methamphetamine.1 You successfully appealed those convictions to the Court of Appeal, which found that they were or may have been based on a wrong approach to a legal question about how people might be held to be parties to criminal acts.2 The Court said you may have been convicted improperly on charges arising from circumstances in which there was insufficient proof that you were directly involved.

[3] The sentencing approach taken when you were found guilty at trial is relevant to determining your sentences now, but I have to take into account two changed circumstances in particular: the reduced number of charges, and your guilty pleas. I also need to bear in mind that you are both currently serving sentences of six years' imprisonment for conspiring to supply methamphetamine, as your convictions on those charges were not overturned by the Court of Appeal.3

The facts

[4] To put your offending into context, I need to refer briefly to the overall background to it.4 You were involved in what the Crown accurately described as a well-organised crime syndicate dealing in the large-scale distribution of pseudoephedrine and methamphetamine in New Zealand. Your apprehension resulted from an extensive Police investigation, involving both the interception of private communications by cell phone calls and text messages, and covert visual
surveillance.

1      R v Hsu [2012] NZHC 931.
2      Bouavong v R [2013] NZCA 484, [2014] 2 NZLR 23, concerning Crimes Act 1961, s 66(2).
3 At [121].
4      A fuller account, to which I have had regard, is provided in the sentencing decision, above n 1.

[5] At the time the surveillance was terminated, a total of 5.2 kilograms of methamphetamine and 2.3 kilograms of pseudoephedrine were found. The drugs were estimated to have a total value, if sold as methamphetamine on the streets as was no doubt intended, of between $6 million and $7 million. The actual dealing offences of which the members of the group were convicted involved an estimated total of 1.76 kilograms of methamphetamine, having a street value of well over
$1.5 million, and what was estimated to be several kilograms of pseudoephedrine.

[6] This was by any measure a sophisticated, structured and large-scale operation. Although your parts were relatively low-level, the role of a street dealer dealing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Keophila

Details

AGLC: R v Keophila [2014] NZHC 1896
Case: [2014] NZHC 1896
Decision Date: 12 August 2014

CaseChat Overview and Summary

The case of R v Keophila and Nguyen involved the sentencing of Aenoy Jay Keophila and Thi Hong Lan Nguyen, who had each pleaded guilty to 14 counts of possession of methamphetamine for supply. The maximum penalty for their offences was life imprisonment. Both defendants were previously convicted in 2012 on charges related to the distribution of methamphetamine, which were later overturned by the Court of Appeal. The current sentencing hearing considered the reduced number of charges and the defendants' guilty pleas. The court found that the defendants were involved in a well-organised crime syndicate dealing in large-scale distribution of pseudoephedrine and methamphetamine in New Zealand. The syndicate's activities were uncovered through an extensive police investigation involving interception of private communications and covert surveillance.

The legal issues in this case were to determine an appropriate starting point for sentencing, taking into account the reduced number of charges and the quantity of methamphetamine involved, and to assess the discount to be given for the defendants' guilty pleas. The court also needed to consider personal factors and the need for a minimum period of imprisonment. The court established a starting point of 10 years' imprisonment for each defendant, taking into account the nature and seriousness of their offending, as well as the sentences imposed on their co-offenders. The court then considered the defendants' personal circumstances, including their backgrounds, remorse, and drug addiction, which were deemed mitigating factors. Finally, the court evaluated the discount to be given for the defendants' guilty pleas, ultimately deciding on an 18% discount for Keophila and a 25% discount for Nguyen.

In conclusion, Aenoy Jay Keophila was sentenced to imprisonment for eight years and two months, to be served concurrently with his existing sentence for conspiracy to supply methamphetamine, with a minimum period of three years and eight months' imprisonment. Thi Hong Lan Nguyen was sentenced to imprisonment for seven years and two months, to be served concurrently with her existing sentence for conspiracy to supply methamphetamine, with a minimum period of three years and two months' imprisonment. The sentences began immediately, with credit given for time already served.

Orders