R v Lay

[2017] NZHC 1388

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-008873 [2017] NZHC 1388

THE QUEEN

v

CHRISTOPHER LAY

Appearances:

A McConachy for Crown

D P H Jones QC and H Drury for Prisoner

Date:

22 June 2017

SENTENCING NOTES OF COURTNEY J

R v LAY [2017] NZHC 1388 [22 June 2017]

[1]      Christopher Lay,  you appear for sentence today having pleaded guilty to charges  of  supplying  the Class A drug  cocaine,  offering to  supply cocaine  and possessing cocaine for supply.  I provided a sentencing indication in relation to these charges and today’s sentencing proceeds on the basis of that indication.1

[2]      The charges arise from a police investigation into the supply of cocaine in Auckland in 2016.  You were a specific target of that investigation and as a result of it a number of others to whom you supplied cocaine were apprehended and have been sentenced.   It is accepted that in your case the total amount of pure cocaine either supplied or possessed for supply was 402 grams.

[3]      As you understand by now, the purpose of sentencing in cases such as this, possession and supply of controlled drugs is primarily deterrence and denunciation. It   is   important,   too,   to   promote   a   sense   of   responsibility   in   you   and acknowledgement of the harm that you do to the community through the dealing in drugs of this kind.   The relevant sentencing principles are the need to take into account the gravity of the offending, including the degree of culpability and the seriousness  of  the  type  of  offence  as  indicated  by the  maximum  penalty.    The maximum penalty for the charges to which you have pleaded guilty is life imprisonment, which indicates just how seriously Parliament views this kind of offending.

[4]      On the basis of previous cases dealing generally with Class A drug offending and cases that have some similarity to the facts in your case, I have concluded that a starting point of nine years’ imprisonment is the appropriate one.2     There are no aggravating features about  your offending that would cause  me to increase this starting point.  Your counsel has, however, emphasised a number of factors that he says ought to be taken into account in mitigation and lead to a reduction in the

starting point.

1      R v Lay [2017] NZHC 1007.

2      R v Wickremasinghe HC Auckland TO13408, 28 March 2003; R v Fatu [2006] 2 NZLR 72 (CA);

Clarke v R [2013] NZCA 473; R v Hayward HC Auckland CRI-2001-092-4639, 13 September
2011; R v McGannan [2013] NZHC 915; R v Lockie [2013] NZHC 1625; R v Yee CA169/01, 29
November 2001.

[5]      As I have already indicated in my sentencing indication, the fact that you have no prior convictions and were of previously of good character does not count for anything in terms of mitigation in relation to this kind of offending.  Today Mr Jones has addressed the issues of remorse and of your personal circumstances, particularly in relation to your partner, Xi Cao.  As to remorse, Judges are generally slow to treat the regret that a defendant feels at having been caught as genuine and extreme remorse that would justify a specific reduction.  I am not satisfied that such a level of remorse exists here.  As to your personal circumstances, your counsel has provided me with a number of character references that testify to your kind nature and caring attitude towards your family and friends.   It is evident that you enjoy considerable support as a result.   It is however only the circumstances of your partner, Ms Xi, that I regard as relevant for sentencing purposes.   Ms Xi came to New Zealand from China in 2012 and the two of you have been a couple since 2014. She has written eloquently of the difficult times she has faced since losing a baby in

2016.  She became very depressed and you were her main support throughout this time, her family still being in China.  It is clear that she relied on you very much and that you did not let her down.  But, although she is now studying and working, she is still heavily reliant on you as her main source of support.   I accept that a lengthy term of imprisonment will be hard on her as it appears that her present intention is to stay in New Zealand and wait for your release.   I am prepared to allow a small discount of five per cent to reflect this aspect of your situation.

[6]      The final factor is the discount to which you are of course entitled on your guilty plea.  For the reasons I canvassed in the sentencing indication I am satisfied that a 25 per cent discount should be permitted, notwithstanding that the plea was not entered at the earliest stage.

[7]      A five per cent discount from the starting point to recognise your personal factors would produce a provisional starting point of eight years seven months. A 25 per cent discount from that results in an end sentence of six years five months’ imprisonment.

[8]      That  is  the  sentence  I  impose,  a  sentence  of  six  years  five  months’

imprisonment and I also make an order for the destruction of the cocaine and the forfeiture of the $70,000 in cash seized from your apartment.  Stand down.

P Courtney J