R v Leung
[2018] NZHC 2607
•5 October 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-004-2723
[2018] NZHC 2607
THE QUEEN v
MING LEUNG
Hearing: 5 October 2018 Appearances:
S A Wilson for Crown
T M Cooper and J Wei for Defendant
Judgment:
5 October 2018
SENTENCING REMARKS OF LANG J
R v LEUNG [2018] NZHC 2607 [5 October 2018]
[1] Mr Leung, you appear for sentence today having been found guilty by a jury on three charges of being in possession of methamphetamine for supply. The maximum penalty for each of those charges is life imprisonment.
The facts
[2] Your offending came to light on 14 March 2017. On that date the police executed a search warrant at the address at which you were residing in Newmarket. You were not the subject of the search warrant. The subject of the search warrant was Mr Mingsisouphanh, who was also living at that address. The police obtained the search warrant because they had reason to believe Mr Mingsisouphanh and others were involved in the large-scale importation of a substance known as t-boc methamphetamine. T-boc methamphetamine is created when a masking agent is added to methamphetamine to hide it from detection. The methamphetamine can be extracted by adding hydrochloric acid to the substance. The police believed that Mr Mingsisouphanh was involved in the importation of t-boc methamphetamine along with his associates, Mr Chan and Mr Wong.
[3] When the police arrived at your address on 14 March 2017, you endeavoured to run away. The police were able to apprehend you and they then searched your apartment. This led to the discovery of the items that resulted in the charges being laid against you.
[4] In a container under the bed in your bedroom they found two plastic bags that contained 90.3 grams and 130.2 grams of methamphetamine. Subsequent analysis showed that these were 76 per cent and 75 per cent pure respectively. The police also found a yellow bottle in your bedroom that contained a powder substance. This was subsequently analysed and found to contain 60.5 grams of methamphetamine having a purity of 43 per cent. When the police searched your ensuite bathroom, they found a tray of crystals near a fan. These were found to be methamphetamine crystals that weighed 192.2 grams. The police also found a container in the bathroom that held
49.2 grams of methamphetamine. The lid of the container had methamphetamine residue on it weighing 1.8 grams.
[5] In the kitchen of your address the police found two refrigerators. One of these contained trays of liquid substances. Subsequent analysis showed that 144.2 grams of methamphetamine could have been extracted from the liquids. The police also found another container in the refrigerator with approximately 4.8 grams of methamphetamine inside it.
[6] In total, therefore, the police found methamphetamine in your apartment that weighed approximately 500 grams. Even on your counsel’s analysis, the police found 400 grams of pure methamphetamine. In addition, there were further trays in the refrigerator containing liquids that contained methamphetamine but which were not subsequently analysed as to purity or weight.
[7] Finally, the police found some plastic bags in your apartment and some digital scales. These are commonly used to package and weigh methamphetamine following its manufacture.
Starting point
[8] The first stage in the sentencing process is to select a starting point that reflects the overall culpability or blameworthiness of the offending, but leaves to one side personal characteristics of the offender. Counsel for the Crown submits your offending warrants a starting point of ten to 11 years imprisonment. Your counsel contends a starting point of around eight years imprisonment is appropriate.
[9] The starting point to be selected in your case is guided by the decision of the Court of Appeal in R v Fatu.1 In In that case the Court of Appeal identified bands of offending distinguished by the quantities of methamphetamine imported, manufactured or supplied. It is clear that your offending falls within Band 3 identified in that case, which relates to offending that involves between 250 and 500 grams of methamphetamine. Offending in this band warrants a starting point of between eight and 11 years imprisonment. The point in the band where offending sits will generally be determined by the role of the offender.
1 R v Fatu [2006] 2 NZLR 72 (CA).
[10] I take your culpability to lie in the fact that you received quantities of methamphetamine from others and then sought to improve its quality. You did this by means of the recrystallisation procedure that could be seen in operation in your refrigerator. The end result of the process can be seen in the crystalline methamphetamine found in your bathroom and in the plastic bags under your bed.
[11] I do not know who supplied you with the methamphetamine in its initial form. It may have been Mr Mingsisouphanh, with whom you were living, or other members of his group. The police did not, however, find any text messages or other communications between you and those persons. It is therefore likely that your dealings with those persons occurred during one-on-one meetings that were not captured electronically. At trial, you maintained you had been given the methamphetamine free of charge and were experimenting with it to improve its quality. You also maintained that all of the finished product was to be for your own use. The jury rejected your evidence on that point. That is not surprising given the volume of methamphetamine found in your possession and its likely value.
[12] I therefore take you to be a person who was actively involved in the improvement of the quality of methamphetamine supplied by another. Your reward came from retention of some of the product for your own use to meet your addiction. I accept there is no evidence to suggest you profited in a financial sense from the sale of the end product. Those profits were no doubt enjoyed by the person to whom you provided the end product. I view your culpability as greater than of a person who is in temporary possession of methamphetamine owned by another. It is, however, less than that of the person who was to derive financial gains from the sale of the end product. Taking those factors into account, I consider an appropriate starting point is one of ten years imprisonment.
Aggravating factors
[13] At 55 years of age you have no previous convictions. For that reason the starting point will not be increased to reflect aggravating factors personal to you.
Mitigating factors
[14] It is now necessary to consider the extent to which, if at all, I should reduce the starting point to reflect mitigating factors personal to you.
[15] I am entitled to provide you with a credit to reflect the fact that this is the first time on which you have come before the courts. In the area of serious drug offending, the weight to be given to factors such as this is less than may be less than in relation to other forms of offending. By way of example, the Judge who sentenced Mr Mingsisouphanh applied a discount of six months to reflect remorse and previous good character as well as the fact that the offender would be required to serve a sentence of imprisonment in a foreign country.2 That was from a starting point of 18 years imprisonment. I propose to apply a discount of four months to reflect the fact that you have never appeared before the courts before.
[16] Your counsel has also referred me to the fact that, at the time of the offending, you were seriously addicted to methamphetamine. The pre-sentence report records that you began using drugs in 2014. You began to use drugs heavily in or about 2016, after your former wife remarried. I accept this provides an explanation for your offending, but I do not regard it as a mitigating factor. Rather, the absence of financial benefit represents the lack of an aggravating factor that would otherwise have made your offending more serious.
[17] The courts have a discretion to provide a discount to offenders who will be forced to serve a lengthy sentence of imprisonment in a country far from their home. This recognises that such offenders may suffer additional hardships in prison because of their lack of familiarity with the English language and with New Zealand food and customs.
[18] You have now been living in New Zealand for more than 30 years. For that reason you will be familiar with factors such as New Zealand food and customs. Remarkably, however, you still have a very limited grasp of the English language. This means you may suffer a sense of isolation whilst in prison because of your
2 R v Mingsisouphanh [2018] NZHC 532 at [30].
inability to communicate with other prisoners and prison staff. In addition, it is likely to prevent you from attending many of the programmes offered to prisoners. I accept that this is likely to make prison life more difficult for you than it would be for other prisoners. I propose to make a further allowance of four months to reflect this factor. This reduces the end sentence from ten years to one of nine years four months imprisonment.
[19] Your counsel has not sought a discrete discount to reflect remorse. This is not surprising, because I do not see any real remorse reflected in the comments made in the pre-sentence report. You see yourself and your family as being the primary victims and display no insight into the harm created by your offending. For that reason it would not be appropriate to apply a separate discount in relation to remorse.
Sentence
[20] You are therefore sentenced to nine years four months imprisonment on each of the three charges. Those sentences are to be served concurrently. This means the effective end sentence is one of nine years four months imprisonment.
Minimum term of imprisonment
[21] The Crown has not sought an order that you serve a minimum term of imprisonment before being eligible to apply for parole. Having regard to your overall role in this offending and your personal circumstances, I am satisfied a minimum term of imprisonment would not have been required in any event. You will therefore be eligible to apply for parole in the usual way after serving one-third of your sentence.
[22]Stand down.
Lang J
Solicitors:
Crown Solicitor, Auckland
T M Cooper, Barrister, Auckland
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