R v Lau
[2013] NZHC 1463
•18 June 2013
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 of pills in the present case means that this could not be called low level dealing in drugs. It would go well beyond category 2 in Terewi and into category 3. The difficulty, however, is that Ms Lau and her husband never owned these pills or derived any benefit from their ultimate sale. As counsel for the Crown acknowledges, they had an extremely small role in a very large operation.
[7] The Crown submits that a starting point of three years imprisonment is appropriate. It has referred me to R v Vigneau,3 in which the offender had pleaded guilty to selling and being in possession of 4-MEC for the purposes of sale. The offender had also pleaded guilty to selling and being in possession of cannabis for sale, as well as possession of LSD. It is clear from the sentencing notes that the offender also engaged directly in the sale or drugs thereby deriving profit from them.
The sentencing Judge in that case took a starting point of three years imprisonment.
[8] I consider that the circumstances in Vigneau are quite different, particularly given the fact that different forms of drugs were involved and the offender was involved in selling and deriving profit from the sale of drugs himself. That is not the case here. Nevertheless, the position here is that an extremely large quantity of drugs passed through Ms Lau’s possession in circumstances where she knew that she was dealing with a valuable commodity that was of questionable legality.
[9] Ms Lau’s counsel submits that an appropriate starting point bearing in mind all of these factors is no more than two years six months imprisonment. I consider the answer to be in the middle of the starting points suggested by the Crown and counsel for Ms Lau. I take a starting point of two years nine months imprisonment.
A starting point involving a sentence of imprisonment is really the only option in the
Hamilton CRI-2010-019-10271, 23 June 2011 at [3].
2 R v Terewi [1999] 3 NZLR 62 (CA).
3 R v Vigneau, above n 1.
present case given the very large quantities and high value of the drugs in question. In those circumstances, issues of deterrence, accountability and denunciation are firmly to the forefront.
Aggravating factors
[10] There are no aggravating factors personal to Ms Lau that would operate to increase the starting point I have adopted.
[11] The only issue now is to determine the extent to which I should reduce the starting point to reflect mitigating factors personal to Ms Lau.
Mitigating factors
[12] I have identified three factors that need to be reflected in the ultimate sentence. It is often said that in cases of commercial drug dealing personal factors count for little. Certainly they may count for less than they do in other cases, but Ms Lau presents as a person with a prior unblemished record. She has no previous convictions, and has provided glowing references from her employer and others who know her. She has always been in full employment. She is currently the manager at a well-known hairdressing salon in Auckland. I have received a letter from the owner of the salon, who indicates that Ms Lau produces 50 per cent of the entire income derived by the salon. She says that the potential consequences for the salon if Ms Lau is not allowed to work there in the future are likely to be dramatic, if not catastrophic. At the very least, the salon owner has asked for a deferment of one month before any sentence takes effect so that she can endeavour to find a replacement manager and hairdresser.
[13] As the Crown properly acknowledges, Ms Lau is entitled to credit for the fact that she has been a model citizen in the past and has always been in full employment. She also expresses sincere remorse. The Crown categorises her offending as being driven by naivety, coupled with a need to make up a shortfall in meeting mortgage payments.
[14] I am prepared to reduce the starting point by something more than ten per cent to reflect these factors. I reduce it by four months to reflect remorse and previous good character.
[15] This leaves me with an end starting point of two years five months, before taking into account the mitigating factor of the guilty pleas. Although the guilty pleas in the present case were not entered at the earliest opportunity, in the sense that they did not come until committal to this Court, nevertheless there are good reasons for that. As Ms Lau’s counsel points out, she was but a small fish in a large pool of persons arrested. The matter has had significant procedural issues. It is not surprising that guilty pleas were not entered until after committal to this Court.
[16] Importantly, too, Ms Lau’s co-accused are maintaining a challenge to the Crown’s assertion that the drugs in question were in fact a Class C controlled drug. They propose to contest that at a defended hearing to be held shortly. Ms Lau has elected not to receive the benefit of any ruling that might go in favour of her co- accused. Instead, she has elected to accept responsibility now and to plead guilty, even though she could easily have awaited the outcome of the application by her co- accused.
[17] I consider these factors permit the Court to provide Ms Lau with the maximum discount, notwithstanding the fact that her guilty pleas did not come at the earliest possible opportunity. The level of discount is constrained by the decision of the Supreme Court in Hessell v R.4 In that case the Supreme Court indicated that the maximum discount that could be given for a guilty plea is 25 per cent. I apply that discount in this case to reduce the sentence by a further eight months. This leaves me with an end starting point of one year nine months imprisonment.
Community detention / Home detention
[18] That being the case, it is possible to consider the sentences of both community detention and home detention. Counsel for Ms Lau urges me to consider
4 Hessell v R [2011] 1 NZLR 607.
a sentence of community detention, because that would definitely permit Ms Lau to continue with her paid employment.
[19] The concern I have is that the sentence of community detention is governed by s 69C of the Sentencing Act 2002 (“the Act”). That section permits a sentence of community detention to be imposed in two circumstances. These are where it would reduce the likelihood of further offending by restricting the offender’s movements during specified periods.5 Alternatively, it may be appropriate where it would
achieve one or more of the purposes set out in ss 7(1)(a), (b), (e) or (f) of the Act.6
[20] There is no suggestion in the present case that Ms Lau is likely to offend further in the future. I am also concerned that a sentence of community detention may not adequately achieve one or more of the purposes set out in ss 1(a), (b), (e) or (f) of the Act. Those sub-sections deal with issues of accountability, denunciation and deterrence. The sheer scale of the offending, in the sense that it involved such a large quantity of pills having such a high value, leave a question mark in my mind at this stage as to whether the purposes in the identified sub-sections of s 7 could be adequately achieved by a sentence of community detention.
[21] This leaves the possibility of a sentence of home detention. Ordinarily, an end sentence of one year nine months imprisonment would lead to the imposition of a sentence of approximately ten months home detention. I am concerned, however, that the imposition of such a sentence may not permit Ms Lau to continue in her paid employment. Enquiries made by both Ms Lau and her counsel to date suggest that, although an offender who is serving a sentence of home detention may sometimes be permitted to engage in paid employment, that is by no means guaranteed.
[22] I wish to have some certainty about that issue before I impose sentence on Ms Lau. For that reason, I agree that the final imposition of sentence should be adjourned to permit enquiries to be made regarding the prospect that Ms Lau will be permitted to continue in paid employment if sentenced to home detention. I
understand that this may require the appointment of a case officer, who would be
5 Sentencing Act 2002, s 69C(1)(a)(i).
6 Ibid, s 69C(1)(a)(ii).
responsible for monitoring Ms Lau if she is sentenced to home detention. It is also likely to involve the case officer making enquiries at Ms Lau’s place of employment to confirm that it is technically feasible for a sentence of home detention for monitoring purposes.
[23] At this stage, I propose to adjourn sentencing until Tuesday, 25 June 2013 at
9 am. I do that in the hope that it will be possible for the Probation Service to make the necessary enquiries within that timeframe. I know that Ms Lau and her counsel will co-operate with the Probation Service in ensuring that any necessary enquiries can be completed swiftly.
[24] If this should prove insufficient for the Probation Service’s needs, I will have no option but to further adjourn sentencing on 25 June. That would be unfortunate, because I will then be away from the Auckland Registry until the week commencing
15 July. I would therefore hope that enquiries can be completed within the next
seven days.
Lang J
Solicitors:
Crown Solicitor, Auckland
Counsel:L Freyer, Public defence Service, Auckland