R v Lam
[2015] NZHC 1713
•24 July 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-092-013289 [2015] NZHC 1713
THE QUEEN
v
HAU PHAN LAM ZHITONG LI JIUMEI ZHENG
Hearing: 24 July 2015 Appearances:
D G Johnstone for Crown A Maxwell-Scott for Lam P J Kaye for Li
G C Gotlieb for Zheng
Judgment:
24 July 2014
SENTENCING NOTES OF GILBERT J
R v LAM & ORS [2015] NZHC 1713 [24 July 2014]
Introduction
[1] Hau Phan Lam, you appear for sentence having been found guilty by a jury of one charge of possessing pseudoephedrine for supply.
[2] Zhitong Li, you appear for sentence having been found guilty by a jury of eight charges of possessing pseudoephedrine for supply, six charges of supplying pseudoephedrine, one charge of possessing methamphetamine for supply and one charge of supplying methamphetamine.
[3] Jiu Mei Zheng, you appear for sentence having been found guilty by a jury of five charges of supplying pseudoephedrine and one charge of possessing pseudoephedrine for supply.
[4] The maximum penalty for each of the methamphetamine charges is life imprisonment. The maximum penalty for each of the pseudoephedrine charges is
14 years’ imprisonment.
The facts
[5] Mr Tran, a co-defendant, orchestrated a large-scale distribution network for ContacNT that was uncovered as a result of a major police operation known as Operation Ghost. You were all involved in assisting Mr Tran.
[6] Mr Lam, you agreed to store ContacNT for Mr Tran in a safe place enabling it to be accessed when required. You were found in possession of 10 sets of ContacNT equating to approximately 900 grams of pure pseudoephedrine.
[7] Mr Li, you were a wholesale customer of Mr Tran, purchasing ContacNT from him and on-selling it to your own customers. In the five week period covered by the charges, from 16 October 2013 to 23 November 2013, you made six separate supplies of ContacNT. In total, you either supplied or had in your possession for supply 49 sets of ContacNT containing approximately 4.5 kilograms of pure pseudoephedrine, sufficient to manufacture between 2 and 3 kilograms of
methamphetamine. You were also found guilty of supplying 500 grams of methamphetamine on a single occasion.
[8] Ms Zheng, you also agreed to store ContacNT for Mr Tran. This was packaged and stored in a locked suitcase hidden under your daughter’s bed. When requested, you would take packages of ContacNT out of the suitcase and place it outside your house for collection by others. In the period covered by the charges, from 29 October 2013 to 4 December 2013, you assisted in this manner on five occasions involving a total of 16 sets of ContacNT. A further 24 sets of ContacNT were found at your home. In total, you either supplied or had in your possession for supply, approximately 3.6 kilograms of pseudoephedrine, sufficient to manufacture between 1.8 and 2.7 kilograms of methamphetamine.
Pre-sentence reports
[9] Mr Lam, you are 48 years of age. You were born and raised in Vietnam, the youngest of six children. Your family was forced to return to China when you were aged eight or nine. You told the probation officer that you had a tough childhood with little money and little education. You only completed the third year of your primary schooling. You cannot read in Chinese or Vietnamese, let alone English. You spent five years in a refugee camp in Korea before coming to New Zealand in
1993.
[10] You subsequently gained New Zealand citizenship but your English is poor. You have had difficulty finding good, stable employment and have done various jobs since arriving in New Zealand. You have mostly worked as a painter and house renovator. At the time of your arrest, you were living with your former wife, your daughter and a number of other family members. You helped care for three stepchildren. The children are aged between five and 17. Your daughter is the eldest child and has had to take on some of the responsibilities for caring for the younger children and providing emotional support for her mother. You have no previous convictions and are assessed as having a low likelihood of re-offending.
[11] Mr Li, you are 32 years of age. You were born and raised in China. You are an only child and came to New Zealand in 2003 on a student visa. After completing a diploma in hospitality management, you were granted permanent residency under the skilled migrant category in 2009. You managed a café in Howick between 2011 and 2014. You are married. Your wife, who is pregnant, recently returned to be with her family in China. You too have no previous convictions and are also assessed as having a low likelihood of re-offending.
[12] Ms Zheng, you are 45 years of age. You were born in Vietnam but raised in China with your younger sister, who also lives in New Zealand. Your parents passed away when you were young and you were raised principally by your grandmother with financial support from your three older siblings, who live in the United States. In 1999, you married a Vietnamese who gained refugee status in New Zealand. You migrated to New Zealand in 2000. You have two children aged 13 and 16 from this marriage. Your marriage ended in 2003 when the children were very young because of domestic violence. As a consequence, you have had to raise your children on your own. You have no family support in New Zealand and a limited social network due to your lack of English and employment.
[13] You also have no previous convictions and are assessed as being at a low risk of re-offending.
Purposes and principles of sentencing
[14] In sentencing the three of you today, I must have regard to the purposes and principles of sentencing set out in the Sentencing Act 2002. Of particular importance, is the need to deter you and others from becoming involved in the supply of methamphetamine or pseudoephedrine, which is used in the manufacture of methamphetamine. Methamphetamine is an extremely destructive drug that causes enormous harm in our community. The sentence must be sufficient to denounce your conduct and hold you accountable for the harm each of you has caused. I must have regard to the gravity of your offending, the degree of your culpability and the need to impose a sentence that is, as far as possible, consistent
with sentences imposed on others for comparable offending. I am required to impose the least restrictive outcome appropriate in the circumstances.
Starting point
[15] Although there is no tariff case for drug offending involving
pseudoephedrine, the Court of Appeal’s decision in R v Wallace is of assistance.1
This decision was recently affirmed by the Court of Appeal in R v Wang as the leading case on offending in relation to Class B drugs.2
[16] In R v Wallace, the Court of Appeal stated that principal offenders involved in Class B drug offending on a major commercial scale should expect a starting point of between eight and 14 years’ imprisonment. Where the quantity of drugs involved is lower, but there is nevertheless sophisticated commercial activity on a substantial scale over a period of time, the appropriate starting point will be in a range of five to eight years’ imprisonment. Smaller commercial operations will attract starting points of up to five years’ imprisonment.
Mr Lam
[17] Your offending falls within category 3 of R v Wallace. The Crown submits that the appropriate starting point for your offending is three and a half years’ imprisonment whereas Ms Maxwell-Scott submits that it should be three years’ imprisonment.
[18] One of your co-offenders, Mr Ha, also stored pseudoephedrine for Mr Tran. His offending was more serious than yours because he also supplied the pseudoephedrine on two occasions by taking packages to another co-defendant at an arranged meeting place. The quantities involved were also greater, 1.2 kilograms in one supply and an unknown quantity in the other. The starting point adopted in
Mr Ha’s case was four years’ imprisonment.
1 R v Wallace [1999] 3 NZLR 159 (CA).
2 R v Wang [2014] NZCA 409 at [21].
[19] I consider that a lower starting point is required in your case given your lesser involvement and the smaller quantity involved. In my view, the appropriate starting point is three years’ imprisonment.
Mr Li
[20] The lead offence in your case is the supply of methamphetamine. The guideline judgment is the Court of Appeal’s decision in R v Fatu.3 Your offending falls at the very bottom end of band 4 of Fatu for which starting points of between
10 years’ imprisonment and upwards are appropriate. The Crown submits that the
appropriate starting point in your case in relation to the methamphetamine charges is
10 years’ imprisonment. Mr Kaye does not disagree. I accept that a starting point of
10 years’ imprisonment is appropriate.
[21] For your offending involving pseudoephedrine, the Crown submits that an appropriate starting point would be eight years’ imprisonment. When sentencing one of your co-offenders, Mr Tarm, Lang J indicated that an appropriate starting point of
10 years’ imprisonment would be appropriate for his supply of 90 sets of ContacNT over a period of approximately four and a half months. The amount you supplied was considerably less than that and was over a much shorter period. I consider that your offending falls at the bottom end of the top band of R v Wallace. The appropriate starting point for your offending involving pseudoephedrine is eight years’ imprisonment. I note that Mr Kaye accepts this.
[22] The total starting point of 18 years’ imprisonment needs to be adjusted to ensure that the overall sentence is not wholly out of proportion with the totality of your offending. The Crown submits that the appropriate adjusted starting point should be between 12 and 13 years’ imprisonment whereas Mr Kaye submits that an overall starting point of 10 and a half years’ imprisonment is appropriate. I consider that the appropriate starting point to reflect your overall offending is 12 years’
imprisonment.
3 R v Fatu [2006] 2 NZLR 72 (CA).
[23] The Crown submits that your offending falls at the upper end of category 1 or the lower end of category 2 of Wallace and that a starting point of between five and six years’ imprisonment is appropriate in your case. The Crown submits that you played a similar role to two of your co-offenders, Mr Ha and Mr Lee. A starting point of four years’ imprisonment was adopted by Andrews J for Mr Ha. Venning J adopted a starting point of four and a half years’ imprisonment for Mr Lee.
[24] Mr Gotlieb submits that a starting point of between two and a half and four years’ imprisonment is appropriate. He emphases that there is no evidence that you made any monetary gain, your offending was over a limited period and you did not deliver the drugs to anyone. He also submits that you were vulnerable and were manipulated by Mr Tran.
[25] I accept Mr Gotlieb’s submission that you were particularly vulnerable and that you were manipulated by Mr Tran. Your involvement was limited. I take into account the limited period of your offending, the fact that you merely stored the drugs and placed them outside your house when directed to do so by Mr Tran and that you did not receive any payment. Having regard to the starting points adopted for Mr Ha and Mr Lee, I consider that the appropriate starting point in your case is three years and six months’ imprisonment.
Personal factors
Mr Lam
[26] At 48 years of age, you have no previous convictions. Your offending can be viewed as a one-off aberration. Taking this into account and your other personal circumstances to which I have already referred, I consider that a discount of four months can be allowed for personal mitigating factors. This would bring your end sentence to two years and eight months’ imprisonment.
[27] You clearly have ability. Your English language skills are excellent. You have a good qualification and were able to obtain good employment. You had every prospect of leading a successful life in New Zealand. You had no need to engage in this offending. You were motivated by greed and to support your gambling habit. You maintain your innocence and have expressed no remorse. You have no prior convictions but any discount for this must be modest. I allow a discount of four months for this. That brings your end sentence to 11 years and eight months’ imprisonment.
Ms Zheng
[28] I have read the psychologist’s report. Mr Gotlieb refers to a number of matters identified in that report in support of his submission that a lengthy period of imprisonment would be disproportionately severe in your case. You were seriously injured when you were struck by a car in 2004, as a result of which your pelvis was broken. You suffer from a number of medical conditions which affect your physical health. You also suffer from poor mental health. You have virtually no English. You are the sole caregiver for your two children who are entirely dependent on you. Your imprisonment will obviously have a marked affect on them.
[29] I accept that as a result of these matters, imprisonment will be particularly difficult for you. I take them into account and the fact that you have no previous history of offending. I allow a discount of nine months. This brings your end sentence to two years and nine months’ imprisonment.
Minimum period of imprisonment
[30] A minimum period of imprisonment is not sought for Mr Lam or Ms Zheng. However, the Crown submits that a minimum period of imprisonment amounting to
50 per cent of the finite term should be imposed in Mr Li’s case.
[31] In R v Wong the Court of Appeal indicated that in cases of very serious drug offending, it is almost invariable that the criteria for a minimum period of imprisonment will be met.4 As the Court of Appeal observed in R v Anslow, minimum periods of imprisonment are commonly imposed when the finite term has been nine years’ imprisonment or greater.5
[32] Mr Kaye submits that you will undoubtedly be deported on completion of your sentence and, for that reason there is no need for a minimum period of imprisonment to be imposed. In my view, whether or not you are likely to be deported should have no bearing on whether a minimum period of imprisonment is required.
[33] I consider that a minimum period of imprisonment amounting to 50 per cent of the finite sentence should be imposed for you Mr Li. This equates to five years and 10 months’ imprisonment.
Sentence
[34] Please stand.
[35] Mr Lam, on the charge of possessing pseudoephedrine for the purposes of supply, you are sentenced to two years and eight months’ imprisonment.
[36] Mr Li, on each of the charges of supplying and being in possession for supply of methamphetamine, you are sentenced to 11 years and eight months’ imprisonment. On each of the charges of supplying and being in possession of pseudoephedrine for supply you are sentenced to six years and nine months’ imprisonment. All sentences are to be served concurrently. This means that your effective end sentence is 11 years and eight months’ imprisonment. On the charges of supplying and being in possession of methamphetamine for supply, you are
ordered to serve a minimum period of imprisonment of five years and 10 months.
4 R v Wong [2009] NZCA 332 at [27].
5 R v Anslow CA182/05, 18 November 2005.
[37] Ms Zheng, on each of the charges of supplying pseudoephedrine and the charge of possessing pseudoephedrine for supply, you are sentenced to two years and nine months’ imprisonment. These sentences are to be served concurrently. This means that your effective end sentence is two years and nine months’ imprisonment.
[38] Please stand down.
M A Gilbert J
4