R v Lau - [2013] NZHC 1463

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-464 [2013] NZHC 1463

THE QUEEN

v

IVY LAU

Hearing: 18 June 2013

Appearances: B Smith for Crown
L Freyer for Prisoner

Sentence: 18 June 2013

[INTERIM] SENTENCING REMARKS OF LANG J

R v IVY LAU [2013] NZHC 1463 [18 June 2013]

[1] Ms Lau has pleaded guilty following committal to charges of being in possession of, and selling, a Class C controlled drug. The drug in question is the Class C controlled drug 4-MEC.

[2] The charges arise out of a very large police operation. The termination of that operation saw several persons arrested. The operation targeted the sale of pills containing the Class C drug 4-MEC. The operation revealed that Ms Lau and her then husband had assumed responsibility for one aspect of the group’s operations. This involved the storage and counting of pills as they passed through the system.

[3] Over a period of approximately seven weeks, Ms Lau and her husband took custody of more than 83,000 pills. They received these from the person who was the beneficial owner of them, and then passed the pills back to that person at his request so that he could then arrange for the pills to be sold. At no stage did Ms Lau or her husband ever own the pills or derive any direct profit from their sale. Instead, they were to be paid the sum of $1,000 per month for looking after the pills. In actual fact, they received and shared a single payment of $1,000. That is the sole benefit they received for their efforts.

[4] Ms Lau’s counsel advises me today that Ms Lau and her husband did not cease their activities because of the termination of the police operation. Rather, the undertaking became too much for them because of the sheer volume of the pills they were being asked to look after. They had therefore ceased acting as custodians of the pills by the time the police terminated their operation. The police case is based, for the most part, on diary entries kept by Ms Lau in which she records the results of stock-takes of pills on hand at given dates.

Starting point

[5] In assessing the starting point for the sentence to be imposed on Ms Lau, I derive little assistance from other authorities principally because they deal with vastly different factual situations. Counsel for the Crown points out that this Court
has derived assistance in other cases1 from the suggested starting points in R v

1 R v Vigneau HC Wellington CRI-2011-085-4047, 7 December 2011 at [14]-[15]; R v Day HC

Terewi.2 That case, of course, deals with cultivation and supply of cannabis. The only real similarity between cannabis and 4-MEC is that they are both Class C controlled drugs. Nevertheless, Terewi indicates that in cases of moderate dealing or cultivation involving a commercial element, a starting point of between two and four years imprisonment will be warranted.

[6] The sheer volume…

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 Lau

Details

AGLC: R v Lau [2013] NZHC 1463
Case: [2013] NZHC 1463
Decision Date: 18 June 2013

CaseChat Overview and Summary

Ms Ivy Lau pleaded guilty to charges of being in possession of, and selling, a Class C controlled drug, 4-MEC. The charges arose from a large-scale police operation targeting the sale of pills containing 4-MEC. Ms Lau and her husband had been responsible for storing and counting pills passing through the system. Over a period of seven weeks, they handled more than 83,000 pills. They did not own the pills nor did they profit directly from their sale, receiving only $1,000 in total for their efforts. Ms Lau's counsel indicated she and her husband ceased their activities due to the volume of pills rather than the police operation.

The court had to determine an appropriate starting point for Ms Lau's sentence, considering the large quantity of drugs involved and her minor role in the operation. The Crown suggested a starting point of three years imprisonment based on a previous case involving different drugs and direct profit from sales. Ms Lau's counsel argued for a starting point of two years and six months, taking into account her minor role and lack of direct profit. The court settled on a starting point of two years and nine months, considering the large quantity and value of the drugs, and issues of deterrence, accountability, and denunciation.

The court identified mitigating factors including Ms Lau's previously unblemished record, employment stability, and sincere remorse. These factors led to a four-month reduction in the starting point, resulting in a sentence of two years and five months. Ms Lau's guilty pleas, though not entered at the earliest opportunity, were considered significant due to her minor role in the operation and procedural issues. The court applied a further eight-month discount for the guilty pleas, resulting in a final starting point of one year and nine months imprisonment. The court considered both community detention and home detention but ultimately decided to adjourn sentencing to allow for further enquiries regarding the feasibility of home detention while allowing Ms Lau to continue her employment.

Orders