R v Keophila
[2014] NZHC 1896
•12 August 2014
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 in one-or two-ounce quantities is a vital one in the distribution of these drugs, and your part in that was substantial.
[7] The facts which underpin your guilty pleas show repeated dealing in methamphetamine, at or close to street level, over a period of three months between April and July 2010. You would receive supplies of the drug, in one-or two-ounce bags, from runners acting for one of the figures higher up the distribution chain. You would then on-sell those drugs to your customers from your home in South Auckland. I have no doubt that, had the Police not terminated the surveillance operation which led to the seizure of that large quantity of methamphetamine before it could be distributed, you would have continued to offend.
[8] You have admitted that you acted together on seven occasions, and each of you has pleaded guilty to seven further, separate charges. You each admit that your offending involved an estimated total quantity of 560 grams of methamphetamine. Having heard the evidence at your trial in 2012, and now having read the summary of facts on which your pleas were based, I am satisfied that I should not distinguish between you as to the nature and quality of your offending; you were equally involved in equally serious offending.
The starting point
[9] In determining the appropriate sentences to impose, I first establish a starting point by referring to the nature of your offending itself. I am required to
look at guidelines provided by the Court of Appeal and to consider the features of your offending, both aggravating and mitigating.5 I must consider the sentences imposed in other broadly similar cases,6 and ensure an appropriate parity of treatment between you and your co-offenders.
[10] Mr Keophila, Mrs Smith submits that, taking the starting point of
12½ years' imprisonment imposed when you were convicted of 21 offences involving just under 1 kg of methamphetamine, an appropriate starting point for you is reached by making a corresponding reduction of just over one third to bring it to eight years’ imprisonment. Mr Lance makes a similar submission on your behalf, Ms Nguyen.
[11] I agree with defence counsel that because you have now been convicted on fewer charges, involving a lesser quantity of methamphetamine, it is necessary to begin with lower starting points than those adopted when you were sentenced in
2012. But I do not accept that a purely mathematical approach is appropriate.
[12] The reduction in the number of charges and the quantity of methamphetamine involved does not alter the essential commercial nature of your criminal activity. In sentencing you for methamphetamine dealing offences, I am guided by a judgment of the Court of Appeal which sets out appropriate sentencing bands according to the amount of methamphetamine involved.7 The quantity of methamphetamine handled by each of you, in playing key roles in a persistent and large-scale commercial operation, places your offending towards the bottom of Band 4 of the guidelines.8 That would be expected to attract a starting point of around 10 years' imprisonment.
[13] Parity in sentences as between co-offenders is important, as Ms Yelavich submits on behalf of the Crown. In this case, the co-offenders whose sentences are
most relevant are Henry Anthony Mika, Ka Kit Poon, and Phokham Bouavong.
5 R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [60].
6 Sentencing Act 2002, s 8(e).
7 R v Fatu [2006] 2 NZLR 72, (2005) 22 CRNZ 410 (CA).
8 At [34].
[14] Mr Mika was a middleman who was the principal supplier of methamphetamine to you. He pleaded guilty just before trial to 18 counts of dealing in a total of 1.386 kg of methamphetamine and one count of conspiring with you to supply 56 grams of methamphetamine, the charge on which you serve your current sentences. His offending involved a greater quantity of controlled drugs than that involved in the charges for which you were initially convicted but he was engaged in it for a shorter period. I adopted a starting point of 12½ years for his offending, as I did for each of you.
[15] The starting point for Mr Poon was nine years’ imprisonment for supplying just under 500g of methamphetamine. He had something of a co-ordination role as well as being a courier and he was convicted on seven counts. His sentence was affirmed on appeal by the Court of Appeal.9
[16] For Phokham Bouavong, I adopted a starting point of six years’ imprisonment for convictions on three charges of supplying a total of 336 grams of methamphetamine; one of the offences involved the supply of 280 grams. Mr Bouavong was held to be “more than just a runner” in the scheme of the operations but he had a far less hands-on and persistent role than you did.
[17] A comparison of the offending of those three co-offenders with the offending you have now admitted suggests that a 10-year starting point for each of you is appropriate. That would be consistent also with the approach taken in two other cases which counsel for the Crown has referred to in her submissions.10
[18] For those reasons, I consider a starting point of 10 years is appropriate for each of you.
9 Bouavong v R, above n 2, at [138].
10 R v Ridout HC Wellington CRI-2008-404-84, 2 May 2008; R v Wei HC Auckland CRI-2009-
404-251, 18 February 2011. See also R v Thompson HC Whangarei CRI-2006-083-2343, 26
September 2006 at [12] in which the offender, who was “operating at a fairly low level” and “at the bottom end of suppliers”, was given a starting point of 10 years’ imprisonment for supply charges relating to a quantity of around 500g of methamphetamine.
[19] Although personal factors are not given much weight in sentencing for major drug offending, which this is, I have considered your respective personal circumstances.
Aenoy Keophila – personal factors
[20] Mr Keophila, you are aged 32, having lived in New Zealand since you arrived here as a refugee at the age of four. You appear to come from a tight-knit family and you felt the effects of the loss of your father when you were 10, and the death of an older brother in 2005 also affected you greatly. For about 10 years, you ran a successful interior finishing company which won awards and was involved in the finishing of high-profile buildings. Unfortunately, it appears that your business was negatively affected by the financial climate and it collapsed in 2010. I said in
2012, and I repeat, that it is greatly to be regretted that you did not turn your obvious talents to other legitimate commercial pursuits when your gib-stopping business declined.
[21] For sentencing purposes, I accept the evidence led at the 2012 trial that the assets you accumulated – your house, car and boat – were most probably acquired from the proceeds of your business while it was financially successful, rather than from drug-dealing. Apart from the large amount of cash found in your home when you were apprehended, you do not seem to have much to show for the substantial amounts of money passing through your hands while you were offending. I acknowledge that you have suffered further financial consequences for your crimes in the loss of your personal assets.
[22] You were previously in a long-term domestic relationship for eight years until 2009 and the end of this relationship is said to have affected you greatly. It was following this that you began a romantic relationship with your co-offender Ms Nguyen. I said I was unimpressed, at the time of your sentencing in May 2012, by both your continued denial of involvement in substantial offending and your attempt to place responsibility entirely on Ms Nguyen’s shoulders. I observed that the jury was more than justified in accepting that the intercepted communications
in which you participated provided powerful evidence of your direct, knowing involvement.
[23] Against that background, it is encouraging that the probation officer now reports that you want to take responsibility for your own actions. You have supplied a letter expressing remorse and stating that your time in prison has allowed you to see clearly the damage wrought by methamphetamine and the need to change your ways once you are released from prison. That is commendable and is consistent with your guilty pleas for which you will get credit.
[24] I accept that you are remorseful both for your family and for those affected by your offending. I disregard your previous conviction for present purposes.
[25] Your admitted methamphetamine addiction is likely to have been a major contributing factor in your offending and I accept that you are likely to have used some of the methamphetamine you acquired. I regard your addiction as being a mitigating factor (when I compare yours with the circumstances of those of your co-offenders who were motivated solely by potential financial rewards). I propose to give it modest recognition in assessing the extent of any minimum period of imprisonment. But I do not consider there are any other mitigating factors in your offending or your personal circumstances justifying a departure from the starting point I have identified. I will come to the effect of your guilty pleas in a moment.
Thi Hong Lan Nguyen – personal factors
[26] Ms Nguyen: You are 30 years old and are of Vietnamese descent. I have not been told much about your family background or education and I do not have the benefit of an updated pre-sentence report, but you were born here and it seemed to me, from what I heard of the intercepted conversations during your trial, that you are articulate and intelligent. You have no previous convictions.
[27] Although your defence at trial was to challenge the sufficiency of the Crown’s evidence against you, you acknowledged your offending prior to sentencing. In May 2012, I regarded that as an important first step on the path to
rehabilitation and I took it into account in imposing sentence. I do not think your subsequent appeal on a point of law alters the position; the Court of Appeal accepted the legal argument advanced on your behalf about transactions in which you may not have been involved directly. You have now pleaded guilty to charges laid on the basis that there was sufficient proof that you were directly involved in
14 drug transactions.
[28] You have explained your offending as arising from your depressed financial situation and I accept that the results of drug screening tests taken while you were in custody awaiting sentence two years ago indicated that you had a harmful pattern of use. I understand that you have been successful in attending courses in prison to address your drug addiction and I commend you for that. I accept that you have nothing to show by way of financial gains from your dealing and the evidence at trial of your continually being in debt to Aenoy Bouavong attests to the fact that, despite your intentions, your part in the enterprise was scarcely a money- making venture. I accept that you, also, are likely to have used some of the methamphetamine you purchased. Those factors do not justify reducing the starting point because personal factors rarely do but I will take them into account, in your case also, when considering a minimum period of imprisonment.
[29] However, you have five young children and while in prison you have maintained contact with the three of them who are in your mother’s care, and I understand with your twins who are with their father. I acknowledge that your imprisonment for a substantial term imposes a real burden on the members of your family, particularly your mother and especially your children. On that account, I reduce the initial starting point to a sentence of 9½ years' imprisonment.
Guilty pleas
[30] You are both entitled to credit for pleading guilty. The Crown submits that any discount for your guilty pleas should be around 10 and 15 per cent, taking into account the substantial time and resources that have been expended in dealing with this matter since you were first charged on 15 July 2010, and taking into account the negotiations which led to your guilty pleas.
[31] Mrs Smith argues that you should be entitled to a full 25 per cent discount for your pleas, because you pleaded guilty at the first reasonable opportunity once the latest charges were finalised. Mr Lance supports that approach to setting the appropriate discount.
[32] When the charges were first laid against you in 2010, you pleaded not guilty. The matter went to a jury trial which resulted in your convictions, and then to the Court of Appeal where you were successful in your challenges to convictions on the supply charges (but not on the conspiracy charge). Following the order for a retrial, you negotiated with the Crown, quite properly, to have the number of charges reduced, and you pleaded guilty at an early point of the renewed process on
8 July 2014.
[33] The question is whether you are entitled to receive a full discount for those pleas. The credit to be given for a guilty plea must reflect all the circumstances in which the plea is given, not just its timing, and must not exceed 25 per cent.11
Guilty pleas entered at the first reasonable opportunity often do attract the full discount but, as in this case, guilty pleas are often the result of understandings reached by defendants and prosecutors of the charges faced and facts admitted. To give the same percentage credit invariably for an early guilty plea in sentencing without regard to the circumstances can amount to a double benefit. Whether or not you should get a full discount for your pleas requires an evaluation of all the circumstances of the case.
Aenoy Jay Keophila – guilty plea discount
[34] Mr Keophila, you did not acknowledge your offending, even after you were convicted by a jury following a long trial, until you pleaded guilty to the present charges. I have no reason to doubt that your time in prison has assisted you, belatedly, to come to terms with your offending and I will give you credit for that. A key factor in favour of a substantial discount is that, by pleading guilty, you have saved the authorities the cost and inconvenience of the retrial which the Court of
Appeal said you were entitled to. On the other hand, the Crown had a strong case
11 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74]-[75].
against you in relation to the offending in which you were directly involved and you have already been found guilty by a jury of offences based on the same facts which have led to your present guilty pleas.
[35] Taking into account also the 25 per cent discounts I allowed to your co- offenders Feng Chih Hsu and Henry Mika, who pleaded guilty not long before trial once the Crown had settled on the appropriate charges for them, I consider an
18 per cent discount to be appropriate in your case. The effective end sentence,
therefore, will be one of eight years and two months’ imprisonment.
Thi Hong Lan Nguyen – guilty plea discount
[36] Ms Nguyen: Mr Lance informs me, and I accept, that prior to the 2012 trial, you had endeavoured to negotiate a resolution similar to that which has now been reached between the Crown and you. You repeated that proposal after the Court of Appeal’s judgment. You did not give evidence at trial denying your guilt, and you acknowledged your offending when I first sentenced you. You too have saved the State the expense and inconvenience of a trial.
[37] I am satisfied that, like Mr Hsu and Mr Mika, you should be credited with a full 25 per cent discount. That means that the effective end sentence will be one of seven years and two months’ imprisonment.
Minimum periods of imprisonment
[38] In ordinary circumstances, each of you would be eligible for parole after serving one-third of the effective end sentences which I impose.12 But the Court may impose a longer minimum period of imprisonment if it is satisfied that the period that would otherwise apply is insufficient for achieving all or any of the relevant sentencing purposes.13 In this case, I take into account the need to hold you accountable for the harm done by your offending which you both now
acknowledge, to denounce serious drug dealing, and to deter you and other persons
12 Parole Act 2002, s 84(1)
13 Sentencing Act 2002, s 86.
from committing such crimes. I am satisfied that neither of you poses such a risk of re-offending that I to need to take into account the protection of the community.
[39] It is almost invariable in cases of very serious drug offending that a minimum period of imprisonment is ordered14 and notwithstanding that the sentences which I will impose are less than nine years, I consider minimum periods of imprisonment to be appropriate in the circumstances. That is to say, I am not satisfied that the sentencing principles would be adequately recognised by your being eligible for parole after one-third of your end sentence. I have just referred to
personal factors which I consider make it appropriate to impose a minimum period of around 45 per cent of your end sentence.
[40] Ms Nguyen: in his written submissions, Mr Lance argues that your separation from your children will be a severe deterrent from any future offending and that a minimum period of imprisonment is not necessary. But I have taken the effect on your children into account in reducing the end sentence. It is necessary to recognise the importance of deterring others and denouncing serious drug dealing, and the harm to the community from commercial methamphetamine dealing.
[41] I propose, therefore, to impose on both of you a minimum period of 45 per cent of your end sentence. Will you both please stand.
Conclusion
[42] Aenoy Keophila, on each of the charges of possessing methamphetamine for supply, you are sentenced to imprisonment for eight years and two months, to be served concurrently. This sentence is to be served concurrently with the one you are already serving for conspiracy to supply methamphetamine. You will serve a minimum period of three years and eight months’ imprisonment.
[43] Thi Hong Lan Nguyen, on each of the charges of possessing methamphetamine for supply, you are sentenced to imprisonment for seven years
and two months, also to be served concurrently, and to be served concurrently with
14 R v Aram [2007] NZCA 328 at [78].
your present sentence for conspiracy to supply methamphetamine. You will serve a minimum period of three years and two months’ imprisonment.
[44] I impose these sentences which begin today on the understanding that the time already served will be taken into account.
[45] You may both stand down.
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Toogood J
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