R v Lam - [2015] NZHC 1713

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…

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 Lam

Details

AGLC: R v Lam [2015] NZHC 1713
Case: [2015] NZHC 1713
Decision Date: 24 July 2014

CaseChat Overview and Summary

The case of R v Lam involved the sentencing of three individuals: Hau Phan Lam, Zhitong Li, and Jiu Mei Zheng. They were found guilty of various charges related to the possession and supply of pseudoephedrine and methamphetamine. The maximum penalty for each of the methamphetamine charges was life imprisonment, and the maximum penalty for each of the pseudoephedrine charges was 14 years' imprisonment. The court had to determine the appropriate starting points and final sentences for each defendant, taking into account the purposes and principles of sentencing, as well as personal factors and the nature of their involvement in the crime.

The court determined the starting points for each defendant based on the Court of Appeal's decisions in R v Wallace and R v Fatu. For Mr Lam, the court found that the appropriate starting point was three years' imprisonment due to his lesser involvement and the smaller quantity of drugs involved. For Mr Li, the court found the appropriate starting point to be 12 years' imprisonment, considering the total starting points for both methamphetamine and pseudoephedrine charges. For Ms Zheng, the court found the appropriate starting point to be three years and six months' imprisonment due to her limited involvement and the fact that she did not receive any payment.

Considering personal factors, the court allowed discounts for each defendant. For Mr Lam, the court allowed a four-month discount, resulting in a final sentence of 11 years and 8 months' imprisonment. For Ms Zheng, the court allowed a nine-month discount, resulting in a final sentence of 2 years and 9 months' imprisonment. For Mr Li, the court imposed a minimum period of imprisonment of 5 years and 10 months.

The final orders of the court were as follows: Mr Lam was sentenced to 2 years and 8 months' imprisonment for possessing pseudoephedrine for supply. Mr Li was sentenced to 11 years and 8 months' imprisonment for the methamphetamine charges, and 6 years and 9 months' imprisonment for the pseudoephedrine charges. Both sentences for Mr Li were to be served concurrently, with a minimum period of imprisonment of 5 years and 10 months. Ms Zheng was sentenced to 2 years and 9 months' imprisonment for the pseudoephedrine charges, to be served concurrently.

Orders