R v Lee - [2015] NZHC 976

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

THE QUEEN

YOKE KEE LEE AND
VAN THANH TRAN

CRI-2013-092-013289 [2015] NZHC 976

CRI-2013-092-013289

CRI-2013-092-011602

THE QUEEN

v

ZIYANG MA

Charges:
Plea:

Mr Ma: Supplying pseudoephedrine x43

Mr Lee: Supplying pseudoephedrine x2;

Possessing pseudoephedrine for supply x1

Guilty

Appearances:

S L McColgan for Crown

S D Cassidy for Prisoner Lee M N Pecotic for Prisoner Tran B L Sellars for Prisoner Ma

Sentenced:

8 May 2015
Mr Ma: 9 years, 4 months’ imprisonment (concurrent);
minimum non-parole period of 4 years, six months;

Mr Lee: 2 years, 8 months’ imprisonment (concurrent)

SENTENCING NOTES OF VENNING J

Solicitors: Crown Solicitor, Auckland
Copy to: S D Cassidy, Auckland
M N Pecotic, Auckland
B L Sellars, Auckland

R v LEE & MA [2015] NZHC 976 [8 May 2015]

[1] Van Thanh Tran, Ziyang Ma and Yoke Kee Lee, you are for sentence for dealing in the Class B controlled drug pseudoephedrine.

[2] In your case Mr Tran you have pleaded guilty to one charge of importing pseudoephedrine, 38 charges of supplying pseudoephedrine, and two charges of possessing pseudoephedrine for supply. Mr Ma, you have pleaded guilty to 43 charges of supplying pseudoephedrine. Mr Lee you have pleaded guilty to two charges of supplying pseudoephedrine and one charge of possessing it for the purpose of supply. The maximum penalty for each of the charges is 14 years’ imprisonment.

[3] All charges were laid at the conclusion of large-scale police investigations into methamphetamine and pseudoephedrine distribution in the Auckland area. The investigation included a special duties undercover police officer, interception warrants, observation, and search and seizure.

[4] Mr Tran, although you have pleaded guilty, in an affidavit you have sworn for sentencing purposes and in counsel’s submissions you have challenged a number of facts alleged by the Crown in the summary of facts. To enable you to consider your position further, and for counsel to prepare for a hearing to resolve those issues you are remanded in custody for a disputed fact hearing on 18 and 19 May in this Court. You will be sentenced after that hearing.

[5] Mr Ma, the police investigation disclosed that on 16 occasions, between 7

August 2013 and 23 November 2013 you supplied 74 sets of ContacNT containing pseudoephedrine for Mr Tran’s customers. On a further 27 occasions, between 18
August and 30 November 2013, you supplied at least 155 sets of ContacNT containing pseudoephedrine for another dealer, Mr Zhang’s customers. It is not possible to determine the exact amount supplied because on 27 October while 30 sets were provided a number were possibly returned and while the transactions on 30
October and 9 November were observed by physical surveillance there was no intercepted communication to specify the amount supplied.

[6] However, the combined known total of the drugs supplied by you of at least

229 sets amounted to 51 kgs of ContacNT or around 20.6 kgs of pure pseudoephedrine.

[7] When the police operation was terminated on…

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 Lee

Details

AGLC: R v Lee [2015] NZHC 976
Case: [2015] NZHC 976
Decision Date: 8 May 2015

CaseChat Overview and Summary

Van Thanh Tran, Ziyang Ma, and Yoke Kee Lee were sentenced for their involvement in the supply of pseudoephedrine, a Class B controlled drug used in the production of methamphetamine. Each defendant pleaded guilty to various charges of supplying and possessing pseudoephedrine for the purpose of supply, with the maximum penalty for each charge being 14 years' imprisonment. The case involved extensive police investigations into methamphetamine and pseudoephedrine distribution in Auckland. The legal issues before the court included determining appropriate sentences for the defendants, considering the purposes and principles of the Sentencing Act 2002, and applying the totality principle to the extent of the defendants' involvement.

The court considered the gravity of the offending, the defendants' culpability, and relevant mitigating factors in determining sentences. For Mr Lee, the court accepted his limited involvement as a storeman and set a starting point of four and a half years' imprisonment. After considering mitigating factors such as his age, remorse, and offer to assist the police, the court imposed a final sentence of two years and eight months' imprisonment. For Mr Ma, the court accepted his role as a courier but considered his extensive involvement in the drug supply chain, setting a starting point of 12½ years' imprisonment. After accounting for mitigating factors such as his health issues, remorse, and guilty plea, the court imposed a sentence of nine years and four months' imprisonment, with a minimum non-parole period of four years and six months.

The final orders of the court were that Mr Lee was sentenced to two years and eight months' imprisonment for the charges of supplying and possessing pseudoephedrine, to be served concurrently. Mr Ma was sentenced to nine years and four months' imprisonment for the charges of supplying pseudoephedrine, to be served concurrently, with a minimum non-parole period of four years and six months.

Orders