R v Law HC Auckland CRI 2008-004-006039

[2008] NZHC 2321

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-004-006039

QUEEN

v

CHI MING LAW

Hearing:         13 May 2008

Appearances: Mr Northwood for Crown

Mr Coughlan for Prisoner

Judgment:      13 May 2008

SENTENCING NOTES OF WYLIE J

Solicitors:

Crown Solicitor, P O Box 2213, Auckland

M Coughlan, Carlaw Chambers, P O Box 105 007, Auckland

R V CHI MING LAW HC AK CRI 2008-004-006039  13 May 2008

[1]      Mr Law, you have pleaded guilty to a single charge of importing the Class A controlled drug methamphetamine into New Zealand on or about 2 February 2008. This is an offence pursuant to s 6(1)(a) of the Misuse of Drugs Act 1975 and the maximum penalty for the offence is life imprisonment.

Relevant facts

[2]      At approximately 8.00am on Saturday 2 February 2008, a Japanese national named Sakae Araki arrived into New Zealand on board a Cathay Pacific flight via Hong Kong.  Mr Araki was searched, and he was found to have on him a quantity of clear crystals which were inside plastic bags strapped to his back.  Analysis of those crystals confirmed that they were methamphetamine and that the total weight of the crystals was approximately 1 kilogram.    At street level, this amount of methamphetamine was potentially valued at some $1 million if it was sold by the gram.

[3]      When spoken to by the Police, Mr Araki admitted that what he was carrying was drugs.  He claimed that he had been asked by a female associate to deliver the drugs to New Zealand on behalf of two Chinese nationals.  He agreed to assist the Police in the on-delivery of the methamphetamine to its intended New  Zealand recipient, and to this end he was placed into a central city hotel.  Three quarters of the crystals were replaced with a rock salt placebo, and approximately 250 grams of methamphetamine were left in the package.

[4]      At  approximately  7.25pm  that  evening,  you  telephoned  Mr  Araki  and arranged to meet him the following day.  The next day you telephoned again, and advised Mr Araki that you would be come to his hotel at 12.00pm.

[5]      You arrived at Mr Araki’s hotel at about 12.30pm.  You entered his room, removed the packaged drugs from Mr Araki’s bag and placed them into a shopping bag.  You then left Mr Araki’s room with the methamphetamine in your possession. You  were  apprehended  by  the  Police,  and  they  confirmed  that  you  were  in possession of the package containing the 250 grams of the methamphetamine and the rock salt placebo.  You were also found to be in possession of a large quantity of money – approximately US$10,000.

[6]      When spoken to by the Police, you admitted that you had been recruited in

Hong Kong to travel to New Zealand to collect the package by somebody known as

Lo Piao.  You had carried out his instructions, and had met another party, who had uplifted you from central Auckland.   You were then subsequently uplifted by two other persons, and transported to the central City hotel where Mr Araki was staying. On arrival at the hotel, you stated that you were handed a plastic bag containing a bundle of money, which you understood was to be paid to Mr Araki when you were handed the drugs.

Pre-sentence report – counsel’s submissions

[7]      A pre-sentence report has been prepared.  It reveals that you are 58 years of age,  and  that  you  were  born  in  Mecau,  South  China.     Prior  to  coming  to New Zealand, you were living in Hong Kong with your wife and son.  You had your own business in Hong Kong for some 30 years, but it collapsed due to an economic recession, and you and your wife have been looking for employment and working odd jobs since.

[8]      In relation to the offending, you are reported as saying that you pleaded guilty,  because  you  knew  that  you  had  done  something  wrong.    You  told  the probation officer that you did not know that you would be uplifting drugs, but knew it was probably something illegal.   You claimed that you needed to make some money, because your mother needed an eye operation.

[9]      No further details are given in the report of your family, or your financial circumstances.

[10]     It is noteworthy that the report writer records that you had expressed no remorse in relation to your offending; nor have you acknowledged the damaging effects of methamphetamine on the community.   You have  claimed to have no knowledge of what was involved, and the report writer notes that you have tended to justify your offending behaviour.

[11]     You have been served with a removal order, and you will be deported at the end of your custodial sentence.

[12]     You have no previous convictions in New Zealand, and the Police are not aware of any convictions in any other jurisdiction. The reporting officer recommends a sentence of imprisonment.

[13]     Mr Northwood for the Crown refers the Court to ss 7 and 8 of the Sentencing Act 2002.   He states the obvious, namely that methamphetamine is a social and dangerous drug.  He submits that there are aggravating features – in particular, the potential for harm was great.  He points out that harm to the community was avoided simply because the intended onward distribution to drug users did not occur.  He also points out that the offence was clearly commercial in nature, and that it was well planned.  He notes that a substantial amount of methamphetamine was involved – 1 kilogram.   He emphasises that your role was important.   You were to collect the methamphetamine from the courier, and deliver it to the next person in the supply chain.  He accepted that you were not the organiser of the operation, but submitted that you were more than a simple or minor cog in the importation operation.  It was his  submission  that  the  starting  point  for  my  consideration  of  the  appropriate sentence should be in excess of 12 years, and that a starting point in the region of 13-

15 years is warranted.

[14]     Mr   Coughlan   on   your   behalf   accepted   large   parts   of   the   Crown’s submissions, and acknowledged that you were a cog in the importation machine.  He says, however, that no further inference can be drawn that your role was more than simple or minor.  He submits that only a “courier role” is indicated on the facts.  He referred to a significant number of factors relevant to mitigation – in particular your unblemished record, that the facts of the case were not comparable to more grave offending, that there was an immediate admission by you and a very early guilty plea, and that you had a defined role as a courier rather than a trusted lieutenant.  He also noted the effect on you as a foreign national, that you are to be deported, and that the custodial sentence you are to serve will be far from home.   In relation to remorse,  he  suggested  that  you  were  dissident  and  that  you  may  have  been intimidated by the act of being interviewed by unknown persons.  He suggested that in his discussions with you, you had shown evidence of remorse but “perhaps not at the highest scale”.  He also pointed out that you have assisted and co-operated with the authorities.   He submitted that a starting point of nearer 13 years would best reflect your role, the weight of drugs involved, and your limited involvement.

Aggravating circumstances

[15]   The importation of methamphetamine is an offence which has serious implications for New Zealand society, given the appalling effects the drug has on those who consume it.  There is a particular need to denounce and deter this type of offending.

[16]     Here, the offence was clearly commercial in nature, and it was apparently well planned.  You were sent to New Zealand to collect the drugs from Mr Araki. You had a defined role in the importation.  You were motivated purely by financial greed and the amount of methamphetamine was substantial – 1 kilogram.

[17]     I have taken these aggravating circumstances into account in fixing a starting point for your sentence.

Principles of sentencing

[18]     I have considered the principles set out in ss 7 and 8 of the Sentencing Act

2002.   I have had particular regard to the need to hold you accountable for the potential harm that you could have been done to the community by your offending, the need to promote in you a sense of responsibility for, and acknowledgement of that harm, and the need to denounce the conduct in which you were involved.  I am also  mindful  of  the  need  to  deter  others  from  committing  the  same  or  similar offences. I have also taken into account the gravity of your offending, including your degree of culpability.  I have considered the seriousness of this type of offence, and the general desirability of consistency with appropriate sentencing levels with similar offenders committing similar offences.   I am mindful that I must also impose the least restrictive outcome that is appropriate in the circumstance.

[19]     I have also taken into account the aggravating and mitigating factors relevant to your offending pursuant to s 9 of the Sentencing Act, in particular, the potential harm and the degree of premeditation involved.

[20]     The  appropriate  sentencing  tariff  for  methamphetamine  related  cases  is detailed in R v Fatu [2006] 2 NZLR 72. It is common ground between counsel that this case fits into band 4 – importing a very large commercial quantity in excess of

500 grams.   The appropriate sentencing band is 12 years to life.   The quantity of methamphetamine is a factor, but it is not the only factor.  The role played by you is also relevant.  Those who are primary offenders can expect a starting point sentence towards the higher end of the relevant band, and the converse applies to those whose role is less significant.

[21]     There are a number of comparable cases.  I refer to R v Javid HC Auckland CRI 2005-004-014044,  4  September  2007  –  a  case  involving  1.5  kilograms  of methamphetamine, where the offender was assessed as being “at the very highest

levels of the operation in New Zealand”.  The starting point in that case was 15 years imprisonment.   In R v Norstram HC Auckland, CRI 2006-092-012125, 29 May

2007, Justice Baragwanath noted that two offenders who arrived at Auckland Airport with  4.7  kilograms  of  methamphetamine  concealed  in  picture  frames  and  shot glasses were mere couriers, and that there was evidence of naivety.  Given the large quantity imported, His Honour took a starting point of 16 years, but reduced it to 14 years, because of the limited role played by the offenders.

[22]     The Court of Appeal in R v Shaida & Graaf CA 383/04 and CA 398/04, noted  that  the  starting  point  for  Graaf  was  18  years,  given  the  extent  of  the offending, the large amount of methamphetamine involved and his role which was beyond that of a courier and was at a high, although not the highest level.  Mr Shaida took a lesser role but the starting point was still 15 years.

[23]     Justice Winkelmann in R v Latifi HC Tauranga, CRI 2005-070-001079 4

December 2006, was sentencing an offender who imported 768 grams of methamphetamine.  The offender was not the king pin in the importation, but he had played a significant role.  The starting point was 12 years.  In the related case, R v Nobakht   HC   Tauranga,   CRI   2005-464-003884   18   October   2006,   Justice Winkelmann took a starting point of 11 years.  Both of these cases predated Fatu but they are broadly consistent with it.

[24]     In R v Murphy CA 198/05, 23 November 2005, referred to by Mr Northwood, there was a starting point of 14 years because the offender was considered to be a high ranking and trusted lieutenant in the overall operation.

[25]     I have also considered the cases of R v Lau HC Auckland CRI 2005-092-

002600 16 December 2005, Allan J and R v Tahir HC Auckland CRI 2005-004-

000844, 20 September 2005, Venning J.

Analysis

[26]     I now turn to analysis your role. Your offending clearly falls within band 4 of Fatu, which applies to those who import quantities of methamphetamine over 500 grams.  You were involved in the importation of 1 kilogram of methamphetamine. A starting point of between 12 years and life imprisonment is clearly appropriate.  In refining the appropriate starting point, it is necessary to have regard to the role you

played in the operation, as well as to the quantity of drugs which were involved in the importation.

[27]     You  were not  the  most  serious  offender  in  the  importation  organisation. Nevertheless you were more than a functionary.  On the facts disclosed to me, you were recruited in Hong Kong.  Your principal instructions came from Hong Kong. You flew to New Zealand knowing that what you were involved in was illegal.  It was your intention to pick up the package containing drugs.  You were provided with money to make the exchange.   You were motivated simply by the desire to make money from the transaction.  While it must have been obvious to you that the illegal transaction was likely to involve drugs, there is no indication that you were aware of exactly what was in the package, nor the quantity of drugs involved.   There is nothing to suggest that you had any greater organisational role or involvement in the operation.   Rather you were recruited to do a specific task.   Your role in the organisation is below that of the offenders in cases such as Latifi, Nobakht, and Murphy and closer to that of the offenders in Shaida, Norstram, Tahir and Lau.

[28]     In my view, your role should be treated as being similar to that of a courier, which points to a starting point towards the lower end of band 4.

[29]     As against that, the amount involved in the importation was 1 kilogram – double the amount at which the Court of Appeal considered it appropriate to start band 4.   The quantity involved here falls between the amount in the Latifi and Nobakht cases, and that in the Javid case.  In the former cases the Court said that a starting point of 11 to 12 years imprisonment would have been justified if Fatu had applied, and in the latter case, a starting point of 15 years was adopted, but the involvement of the offender was however more serious than in your case.

[30]     In light of your relatively limited role, I think that the appropriate starting point is 13 years.

[31]     I am required to take into account any mitigating factors. [32]           You are entitled to a credit for your early guilty plea.

[33]     It is submitted on your behalf that you are entitled to some credit to your previous good character.  You have no previous convictions in New Zealand – or it seems overseas – and I accept that that could suggest that you have been of good

character.  However, there was no positive evidence of previous good character, and I do not consider this to be a strong mitigating factor in your case.   Any previous good character in my view in the present case is overtaken by your lack of remorse, and the fact that you were clearly motivated to offend by your desire to make money, even by committing a crime in a foreign country.  In my view, there is generally little room in cases such as this involving serious drug offending for personal circumstances to come into play.

[34]     I have also received submissions from the Crown and from your counsel regarding the extent to which your sentence should be reduced to reflect the unusual features of your case.   I do not propose to traverse those features in detail, but I conclude from them that it is important that I reduce your sentence by more than would generally be appropriate for somebody in your position.

[35]     As a result, I have discounted the term of imprisonment I would otherwise have sentenced you to.   You are sentenced to a term of 6 years and 6 months imprisonment.

Minimum period of imprisonment

[36]   In most cases involving the importation of a significant quantity of methamphetamine, the imposition of a minimum period of imprisonment needs to be considered.

[37]     Here, Mr Northwood for the Crown has not sought a minimum term, but it remains open to me to impose a minimum term if I think it is necessary in terms of s 86 of the Sentencing Act.  I have to consider whether or not the one third parole eligibility period is sufficient to punish, to deter and to denounce your offending, and to protect the community from you.

[38]     I have taken into account the decision of Justice Asher in R v Yang and the other authorities there cited.

[39]     I do not consider that a minimum term of imprisonment is required in this case.   Your role was similar to that of a courier.   I consider that the normal non parole period is sufficient to punish, deter and denounce your offending.  It is also sufficient to protect the community from you.  In this regard it is of course relevant that you will be deported at the end of your prison term.

Conclusion

[40]     Mr Law, I sentence to a prison term of 6 years, 6 months imprisonment.  You may stand down.

Wylie J