R v Lee HC Auckland CRI-2008-004-018337

[2011] NZHC 854

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2008-004-018337

THE QUEEN

v

CHEE HOI LEE

Hearing:         8 February 2011

Counsel:         EC Finlayson-Davis for the Crown

MK Lowe for the prisoner

Judgment:      8 February 2011

SENTENCING NOTES OF RODNEY HANSEN J

Solicitors/Counsel:

Crown Solicitor, DX CP 24063, Auckland 1140.

M K Lowe, PO Box 941, Shortland Street, Auckland 1140.

R V CHEE HOI LEE HC AK CRI-2008-004-018337 8 February 2011

Introduction

[1]      Mr Lee you pleaded guilty to a representative count that between 18 June and

14 August 2008, together with Nhi Xuan Nguyen, you supplied a Class A controlled drug, namely, methamphetamine.

[2]      You disputed substantial sections of the Crown summary of facts. A disputed facts hearing was held for the purpose of resolving those differences.  My findings are in my judgment of 17 November 2010.

Factual background

[3]      The factual basis on which I will sentence you is accordingly a combination of the summary of facts and the findings in that judgment.

[4]      You were charged following the termination of a Police operation entitled “Operation Moremi” which lasted from 18 June to 14 August 2008.   There were numerous intercepted communications which established that you worked closely with Nhi Nguyen to supply methamphetamine.  Many of the sales took place from factory premises at Mt Wellington where Mr Nguyen lived.   A number of other transactions took place at hotel and motel rooms which were rented for the purpose.

[5]      On  several  occasions  you  were  directly involved  in  the  supply of  small quantities of methamphetamine.  After hearing intercepted communications I found that on 18 July 2008 you supplied a small, but unspecified, quantity to a woman at a motel  room;  on  24  July  you  supplied  0.4  grams  to  Frank  Pritchard  who  gave evidence that he was a regular customer who often obtained small quantities from you and/or Mr Nguyen; and on 30 July you supplied two grams to a couple in a hotel room.

[6]      Over the period you and Mr Nguyen together supplied significant quantities of methamphetamine on numerous occasions.  On three occasions (5, 6 and 17 July)

quantities of one ounce (or 28 grams) were supplied.  On 10 July, two ounces (or 56 grams) were supplied to Khoi Nguyen and another.  The most significant supply was on 24 July of three ounces (or 84 grams) of methamphetamine to a regular customer. I have found that on a total of 18 occasions over the period you supplied no less than

235.9 grams of methamphetamine, 2.5 grams on your own and 233.5 grams with

Mr Nguyen. The quantities could not be determined on four of those occasions.

[7]      After hearing the evidence I accepted as accurate the Crown’s contention that you were Mr Nhi Ngugen’s righthand man.  I found that you worked closely with him.   You often answered his phone or took over from him in the course of the telephone conversation.   Sometimes callers phoned you on his phone.   You were often with Mr Nguyen when deals were being done, both at the Mt Wellington factory where you were seen opening and closing the gate for visitors coming to buy drugs, and at hotel and motel rooms rented for the purpose of dealing.

[8]      The evidence showed that you dealt directly with members of the criminal network of which Mr Nguyen was the leading member.   They included Cam Cau Lot, who was a major source of supply to Nhi Nguyen and Khoi Nguyen.

Personal background

[9]      You are a Malaysian of Chinese ethnicity.  You came to New Zealand from Malaysia in 1998 to work for your older brother.   You state that you are now a permanent resident of New Zealand, although I am unaware of your exact immigration status.

[10]     You married in 2000.  You separated from your wife in 2005.  The daughter of your marriage, who is now nine years old, lives with her mother and attends school in Mt Roskill.

[11]     Since you came to New Zealand you have been employed as a tiler and a waiter.  Before you were remanded in custody last December you had irregular work working as a tiler for your brother.  You have no savings or assets.  You have some unquantified debts.

[12]   You told the probation officer that you have been a regular user of methamphetamine since 2003.    You have convictions for possession of methamphetamine in 2005.   Otherwise, your Police record since coming to New Zealand is for relatively minor offending, none of which has attracted a custodial sentence.

[13]     You acknowledge a gambling addiction.   While you have sought treatment for  your drug problem  you  have not  undertaken  counselling for  your  gambling problems. You accept, according to the Probation Service report, that your offending is attributable to a combination of financial problems caused by excessive gambling and drug abuse. You are assessed at medium to high risk of re-offending.

Sentencing – starting point

[14]     Sentencing  for  methamphetamine  offending  is  governed  by  the  case  of R v Fatu.1     The key factors  in  determining  sentence are the quantities  of drugs involved and the role played by the offender.   Fatu prescribes a starting point for sentence of between three years and nine years where the offending involves the supply of commercial quantities of between five grams and 250 grams.   The next sentencing band, band 3, is for commercial quantities of between 250 and 500 grams

and attracts a sentence of between eight and 11 years imprisonment.

[15]     The Crown says that it is appropriate to characterise your offending as falling within the upper level of band 2 and Ms Finlayson-Davis suggests a starting point of eight years imprisonment.  In her written submissions Ms Lowe suggested a starting point of four to five years.  That is not realistic as I understand her to have implicitly acknowledged this morning.  The quantities supplied are at the upper level of band 2. You could perhaps count yourself fortunate that a greater quantity was not detected. As I have said, there were unspecified quantities supplied on at least three occasions. You were not on the periphery.  While subordinate to Nhi Nguyen, you were in the thick of the action.  You played a key role in the operation he was running from the Mt Wellington factory.

[16]     Ms Lowe relied on the sentence imposed on Tania Follas2 who, with her then partner Quintin Chapman, purchased methamphetamine from Nhi Nguyen for on- sale.  A starting point of 10 years was adopted by Lang J for Mr Chapman, whose offending took him into band 3, and four and a half years for Tania Follas.  Ms Follas was very much the junior partner operating under the influence of Mr Chapman. The quantities involved in her case were much less – 74 grams in total.  A starting point of four and a half years was adopted.  Exceptional mitigating factors warranted a  discount  of  two  and  a  half  years  leading  ultimately  to  a  sentence  of  home detention.

[17]     I consider a starting point of seven and a half years appropriately reflects your culpability.  A starting point at this level is proportionate to those adopted for the sentencing of others in the criminal enterprise.  I adopted a starting point of 10 years  imprisonment  when  sentencing  Nhi  Nguyen,  whose  offending  spanned  a longer period, who sold 380 grams of methamphetamine in total and who was a prime  mover  in  the  enterprise.    I  adopted  a  starting  point  of  12  years  when sentencing Cam Cau Lot.   The quantity of methamphetamine involved in his offending was in excess of 500 grams taking him into band 4 of Fatu – 10 years to life imprisonment.

Personal and aggravating factors

[18]     There are no aggravating factors which would warrant an uplift in sentence. Ms Finlayson-Davis accepts that your previous offending does not warrant any increase in sentence.

[19]     The only mitigating factor is your guilty plea.  That was entered on 18 June

2010.   Your trial was due to commence the following Monday.   It subsequently emerged that you challenged many aspects of the summary of facts.  Essentially, you contended that you were only involved in the supply of a few grams of methamphetamine.    You  denied  providing  any  significant  level  of  assistance  to

Mr Nguyen.   After the disputed facts hearing I rejected the principal contentions made on your behalf.

[20]     What then is the appropriate discount for your guilty plea?  The principles are now laid down in the Supreme Court decision of Hessell v R3  which rejects the application of a discount calculated primarily by reference to when a plea is entered, preferring a case by case evaluation of all the circumstances.   The total discount should not exceed 25 per cent but remorse may constitute a separate mitigating factor.

[21]     As Ms Finlayson-Davis has submitted, the benefit to the criminal justice system resulting from your plea of guilty was significantly diminished by the nature of your challenge to the facts.  It amounted to a challenge to the essential nature of the prosecution case against you.   It did not carry with it an acceptance of responsibility4  and the need for a two day hearing to resolve the facts reduced the

benefits to the administration of the criminal justice system.5    That said, Ms Lowe

fairly pointed out that a lengthy and moderately complex trial was avoided by your plea.

[22]     In the circumstances I accept the Crown’s submission that a discount of 10 per cent is appropriate.  I reduce the starting point by nine months.

[23]     The sentence that I impose on you is one of six years and nine months imprisonment.

[24]     You may stand down.

……………………………..

Rodney Hansen J

3      Hessell v R [2010] NZSC 135.

4      See Hessell at [60].

5      See Hessell at [65].