R v Lum
[2015] NZHC 629
•31 March 2015
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2013-088-1724 [2015] NZHC 629
THE QUEEN
v
RONALD ALLEN LUM and
CHRISTOPHER RAMOND NGAWATI
Hearing: 31 March 2015 Appearances:
M Smith for the Crown
C Muston for Mr Lum
D Blaikie for Mr NgawatiSentencing:
31 March 2015
SENTENCE OF WOODHOUSE J
Solicitors:
Mr M Smith, Marsden Woods Inskip & Smith, Office of the Crown Solicitor, Whangarei
Mr C Muston, Solicitor, Whangarei
Mr D J Blaikie, Solicitor, Kaikohe
R v LUM and NGAWATI [2015] NZHC 629 [31 March 2015]
[1] I will now impose sentence and explain the sentence to be imposed. I have already indicated that it will not be imprisonment. I do want to say at the outset – and I will explain the reasons I come to this – what I am doing with both of you is giving both of you an opportunity. Mr Lum, you are aged 51, I think it is; and Mr Ngawati, you are aged 38 or 39. Although there is 12 years between you, this is a pretty pivotal point in the lives of both of you. And I am giving both of you an opportunity with the sentence that will be imposed, which I will now explain.
[2] You are to be sentenced for supplying the precursor substance toluene over a period in January and February 2013. The maximum penalty for this offence is 7 years imprisonment.
[3] Mr Lum, you are also to be sentenced for theft of a camera and surveillance equipment with a value estimated – in legal terms – in excess of $1,000. The actual estimate is just over $8,000. The maximum penalty is also 7 years imprisonment.
[4] The essential facts, in relation to the toluene charge, are that you, Mr Ngawati, agreed to obtain some toluene for Matthew Alcock. Mr Alcock is also to be sentenced, but on a separate date. You in turn asked Mr Lum to obtain the toluene which he agreed to do.
[5] There is dispute about the quantity of toluene. The Crown contended that toluene was supplied on three separate occasions and that the total was 160 litres.
[6] Mr Ngawati, you say that the total you supplied was 40 litres.
[7] Mr Lum, you signed a police summary of facts as being true and correct and say that you did this on the basis that you accepted that you had supplied no more than 100 litres of toluene, and I apprehend that was because there is reference, more than once, to a total of 60 and then to a separate total of 40. The written submission was that, on reflection, you contended you supplied no more than 60 litres.
[8] There was to be a disputed facts hearing on this. It was discussed in a constructive way, in particular with Mr Smith, at the outset of this hearing this
morning and then with your respective counsel. I indicated that I did not consider that for the purposes of sentencing there was a significant difference between the bottom line, which is 40 litres, and the maximum of 160. But on my assessment of the brief summary of the text messages in the summary of facts, to which both of you pleaded, there is some doubt as to whether the text messages prove that there was a total of 160 litres. My assessment, on the basis of those text messages, is that it got to a total of 60. And you are entitled to the benefit of the doubt on the facts under the Sentencing Act. But as I say, in my assessment, not a great deal turns on the actual quantity in this case given the fact that we are dealing with toluene. I will explain why in a moment.
[9] I do note that the evidence from the final text messages about the money being available is that the payment to be made by Mr Ngawati to Mr Lum was three times $156 – that is to say, for three lots of 20 litres and making a total of $468. Even if it was 160 litres at that figure it would be something just over $1,200.
[10] I do not want to diminish this unduly, but in the scheme of things with methamphetamine offending – and this is on the periphery of it – these are not large amounts of money.
Supplying toluene : fixing a starting point
[11] A starting point needs to be fixed for the toluene offence. This starting point will apply in both of your cases. An adjustment will have to be made for your sentence, Mr Lum, because of the theft offence. Further adjustments will be made for both of you to take account of personal considerations.
[12] The Crown submitted that the starting point should be 3 years imprisonment. And I emphasise that the starting point is an assessment of the seriousness of the crime itself – just looking at the offence before considering any other considerations of a personal nature, or guilty pleas, or other things.
[13] Mr Muston, for you Mr Lum, submitted in his memorandum that the starting
point should be “well below 3 years”.
[14] Mr Blaikie, for you Mr Ngawati, submitted that the starting point should be
18 months imprisonment.
[15] Counsel referred me to a number of sentencing cases. I will note the names of these cases in a footnote without going into any detail.1 A number of these cases are not particularly helpful for the purposes of reasonably direct comparison. For example, some of them concern charges of possession, rather than supply, and possession with the requisite intention has a maximum penalty of 5 years imprisonment compared with 7 for these offences. On the other hand, most of the
cases referred to involve a number of charges – which is not the case here – and sometimes charges involving supply of equipment or materials, or both, as well as supply of precursor substances. Beyond this there is need to be clear as to the particular precursor substance involved in other cases compared with what is involved in this case. Although the maximum penalty is the same, the degree of criminality may vary substantially depending on the particular substance as well as the quantity of the substance and other relevant matters going to culpability. In terms of culpability, there is substantial difference between supply of a kilogram of pseudoephedrine and supply of 20 litres of toluene or supply of 500 millilitres of hypophosphorous acid compared with 20 litres of toluene. That last point was noted
in a recent case called MacFarlane.2
[16] I will briefly note some other sentencing cases with the most relevant facts:
(a) MacFarlane.3 Two charges of supplying iodine worth $4,500 with planning involved; indicative starting point, because other offences taken into account, of between 1 ½ to 3 years. That is an indicative starting point for a range of offences with the supply offence being
iodine worth $4,500.
1 Hodges v R [2011] NZCA 580; Malamatenios v R [2013] NZCA 347; R v Bruce HC Auckland CRI-2003-090-10625, 27 July 2004; R v Johnston CA448/05, 15 May 2006; R v O’Keefe HC Napier CRI-2008-020-2368, 31 July 2008; R v Rayner HC Blenheim CRI-2010-006-000983, 15
November 2010; R v Ujdur HC Whangarei CRI-2005-092-14046, 24 July 2007; Wilson v R
[2011] NZCA 197.
2 R v MacFarlane [2014] NZHC 2203 at [60].
3 R v MacFarlane [2014] NZHC 2203 at [56].
(b) Reeves.4 This involved supply of hypophosphorous acid also worth
$4,500; there was considerable planning: the starting point there was 3 years; the quantity is not apparent, but the Judge referred to a container containing it found in the boot of a car – and I assume it was a small bottle. The specific charge in that case was supplying material intended to be used in methamphetamine manufacture, rather than supplying a precursor substance. The Judge did not accept a defence submission that, as a general principle, the supply of materials is to be taken as less serious than the supply of a precursor substance. I agree. The point for present purposes is one that I have actually made several times, and that is that the supply of $4,500 worth of hypophosphorous acid, an essential ingredient which is hard to obtain, as reflected in the value, is markedly different from the supply of toluene which is readily obtainable at retail outlets and as it was in this case – as I understand it.
(c) Styles.5 This case involved supply of pseudoephedrine in 3,000
ContacNT tablets: the starting point there was 2 years. This is a case substantially more serious in terms of the level of criminality.
(d)Lee.6 This case involved supply of enough pseudoephedrine to produce between 135 and 270 grams of methamphetamine: the starting point there was 2 years 6 months.
(e) And two other cases which I would note – mentioned earlier, although not by name – are O’Keefe and Bruce.7
[17] These cases indicate that the starting point sought by the Crown would, in my judgment, be well out of line with other cases given the substance involved in this case, the quantity when related to the particular substance, and the value. When I
refer to the quantity relating to the particular substance, 60 litres of toluene can be
4 R v Reeves HC Auckland CRI-2004-044-6987, 18 November 2005 at [17]-[18].
5 R v Styles HC Auckland CRI-2006-004-1208, 12 February 2008 at [15].
6 R v Lee [2013] NZHC 1826 at [29].
7 R v O’Keefe HC Napier CRI-2008-020-2368, 31 July 2008; R v Bruce HC Auckland CRI-2003-
090-10625, 27 July 2004.
regarded as a relatively modest quantity when compared, for example, with a small bottle of hypophosphorous acid.
[18] In addition, I assess the general nature of your activities as not involving any sophisticated planning. And I note the submission on your behalf, Mr Ngawati, that you got involved simply because you were trying to clear a debt arising from something which I apprehend was quite separate.
[19] On the basis of the summary of facts that I am concerned with – and I emphasise that it is the summary of facts relating to you two – the principal person involved seems to be Mr Alcock. That does not reflect any judgment by me on his case, but the facts relating to you. You have simply acted as intermediaries at a very low level.
[20] On this basis I assess the starting point, for each of you, if there was to be a prison sentence, at 18 months imprisonment.
[21] The Crown submitted that the offending is aggravated by premeditation on the basis that the two of you, in the Crown’s words, “conspired together over a period of about six weeks to supply large quantities of toluene”. To the extent that what is disclosed in the text messages involves a degree of organisation between the two of you, that was unsophisticated and has been taken into account in the starting point I have fixed.
[22] From this point adjustments need to be made which are specific to each of you and I will start with your case, Mr Lum.
Mr Lum : Adjustments
[23] A separate sentence needs to be imposed for the theft. This was theft of a camera and surveillance equipment installed by police on Mr Alcock’s property. You admitted that on 5 June 2013 you and Mr Alcock removed the equipment and threw it in a swamp after removing the memory cards to check what was recorded.
[24] The Crown submits that the sentence for this offence should be dealt with by increasing the starting point in an appropriate way. It is arguable as to whether the offence should be dealt with by increasing the starting point or by imposing a cumulative sentence – that is to say, an additional sentence to be added to the end sentence for supplying the toluene. However, there is a connection between the theft and the toluene supply, through Mr Alcock’s activities. If there was to be a prison sentence the increase would have been around 3 months.
[25] You are entitled to a reduction in the sentence because you pleaded guilty. Before I come to that I need to consider whether there should be any increase or reduction having regard to personal factors. You are aged 51. You have a reasonably long list of convictions for previous offences between 1979 and 2011. Apart from two convictions for possession of cannabis, there are no drug related offences. And the two cannabis offences, 20 years before the current offences, are not relevant. There are some earlier theft offences, but these also are historic. I am satisfied there is no justification for increasing the starting point because of any previous offences. The probation report does not indicate any personal matters justifying a reduction subject to one factor – and this is an important matter and I will come back to it – the need to take account of rehabilitation.
Reduction for remand in custody or restrictive bail
[26] Mr Muston submitted that there should be a substantial discount for remand on restrictive bail terms. Between 13 November 2013 and June 2014 you were on EM bail with a 24 hour curfew. From June up to the present time there was a 12 hour curfew overnight. I am satisfied that some allowance should be made for the restrictive bail conditions over approximately 18 months. I will come back to this.
[27] A sentence of home detention was sought. The Crown submitted that, given the nature and seriousness of the offending – and it is serious offending – a sentence of home detention would not meet the purposes and principles of sentencing emphasised by the Crown – and it is mainly purposes – that is, denunciation and deterrence. The same submission is made in respect of an application by Mr Ngawati for home detention. However, a sentence of home detention may often be
an appropriate sentence in order to denounce and deter, as well as to meet other relevant purposes, and principles, of sentencing. This includes rehabilitation. The two offences in this case, in terms of their gravity, could in my judgment be properly dealt with by imposing a sentence of home detention. Other relevant considerations, including your criminal histories – or your criminal history, Mr Lum, dealing with you specifically – do not tip the balance in favour of a sentence of imprisonment. This is home detention before considering credit.
[28] I am satisfied that if there were no credits available to you for time in custody or restrictive bail and guilty pleas, the appropriate sentence would be 9 to 10 months home detention. But you are entitled to credits – remand in custody for approximately 5 months. This is not a matter that was mentioned by Mr Muston. If there is no prison sentence this can be taken into account – it is something that cannot be taken into account by a Judge if a sentence of imprisonment is imposed. It is taken into account in a different way.
[29] In practical terms, there have been 5 months in jail. There are the restrictive bail conditions, as earlier discussed, over a total of 16 months. The essence of this is that you were arrested in June 2013 and, getting close to 2 years later, you are being sentenced having either been in custody or on restrictive bail. And there are the guilty pleas. The maximum reduction from a prison sentence would be 25%. In your case it might be less and there have been different submissions on this. But I do not have to do a precise calculation. If there was to be a prison sentence the reduction I could, and would, allow, not including time in custody, would bring the starting point down to around 12 months imprisonment. That indicates a home detention sentence of around 6 months – it could be less, it could be a bit more. The time in custody would reduce it to a few months only.
[30] I have taken some time over this because of the sentence that I have decided should be imposed. Given a sentence indicated on that basis of only a few months of home detention I have concluded – and this takes account of what is recorded in the probation report and the submissions – that the appropriate sentence is one of 6 months community detention and 6 months supervision, with appropriate conditions, coupled with 20 hours community work and an order for reparation. And the order
for reparation, Mr Lum, obviously takes account of your effective assurance to me that you will sell your 1999 Ford Falcon, which you say is a classic and worth possibly $10,000, to ensure that the reparation is paid and the reparation would be a sum of $4,000, being half the value.
[31] I will come back to the formal sentence in a moment. But what I want to say in conclusion in your case is that a particular reason for this sentence is something I have mentioned a few times, and that is rehabilitation. I want to just read something that the probation officer said:8
Mr Lum’s overall response to community based sanctions has been satisfactory and it is noted that he has previously been dealt with by punitive rather than rehabilitative sanction.
And I just interpolate there, it does seem to me certainly a great pity for the community as a whole – quite apart from you personally – that there has been no effort, in a serious way, to have some form of rehabilitative sentence, or serious efforts to get you away from all of this relatively low level offending, long ago. You are now 51. And as I said right at the beginning, it is really all in your hands now with the chance you are getting. I just add from that passage in the probation report, and quoting:
Mr Lum clearly regrets the negative impact his involvement in the current matters has had upon his familiar relationships. He speaks of positive plans for the future involving his return to family land in the Kaeo area.
[32] Those are matters that provide some encouragement, Mr Lum, that you will actually do what you say you will do. I hope you can extend that regret to the harm you create to the community as a whole by getting involved in these sorts of things, even on the periphery. I do not want to lecture you. What I want to do is emphasise the chance you are getting.
[33] I will come back to the formal sentence.
8 Probation report, p 3.
Mr Ngawati : Adjustments
[34] Mr Ngawati, you are 38. You have previous convictions. The only ones of relevance are three cannabis convictions for offences in 2009. And on that occasion you were sentenced to home detention for 9 months.
[35] Against this there is a probation report with some positive factors, particularly in relation to family support and, more importantly, family pressure to stay out of trouble – to in fact do what you have told the probation officer you want to do, and that is, in essence, stay out of trouble. You have some strong motivations, including your family tragedy – and I do not want to go into that, but I apprehend that it is. And in your case I want to read something from the submissions from Mr Blaikie to me on your behalf:
His family have been supportive of him but only on the basis that he is, and starts to act, like a Ngawati who are a proud Maori family. That is, that he is available for work when required – no exceptions. That when he works, he works hard – just like other members of his family – and that he takes pride in himself and leaves behind any part of gang life and criminal offending, particularly drug offending. He appears to have seized this initiative with both hands and is quietly rehabilitating himself.
[36] I have said that in public, Mr Ngawati, for reasons you will understand. And I keep repeating this – and it applies to you Mr Lum – it is now up to the two of you. And I just mention – and I forgot to mention before – I have the whanau action plan from your family Mr Lum, and it is a commitment from them to support the probation officer in ensuring that you do now steer a straight path.
[37] Just going back to you Mr Ngawati. Some credit is required, as with Mr
Lum, to seek to encourage you. In addition, you were in custody for approximately
4 months. You were released on bail in October, rather than November, as in Mr Lum’s case. You were on restrictive EM bail for about 10 months and bail with a curfew for a further 4 months. Broadly, your position is the same as Mr Lum’s. And you entered a guilty plea to the offence for which you are now to be sentenced.
[38] In your case, in my judgment, the sentence should be similar to the sentence to be imposed on Mr Lum, except that there is no justification for the community work sentence and, of course, there is no basis for an order of reparation.
[39] Those are the comments I wanted to make. I have taken quite a bit longer than might normally be taken on a sentence of this nature. I do hope I have conveyed to you that what I am endeavouring to do is give both of you a chance. And it might be the last one. I will not say any more.
Formal sentence
[40] Would you both please stand.
Mr Lum
[41] Mr Lum, on the supplying a precursor charge, you are sentenced to 6 months supervision. There will be special conditions, being the same as those recorded in the pre-sentence report at page 4, although those were recorded as release conditions. There will also be a sentence of 6 months community detention. I have not discussed this, but I am imposing a curfew of 10:00 pm to 6:00 am seven days a week. An application can be made for variation if it is required. The curfew address will be the address recorded in the pre-sentence report.
[42] In addition Mr Lum, there will be a sentence of 40 hours community work, being the minimum. There will be an order for payment of reparation arising out of the theft in a sum of $4,000. To the extent that I have the power to do so, I direct that you sell the Ford Falcon car and that from the proceeds of sale that reparation is paid.
Mr Ngawati
[43] Mr Ngawati, for the offence of supplying a precursor substance, you are sentenced to 6 months supervision. In addition to the normal conditions, there will be the special conditions recorded in the pre-sentence report. In addition, there is a sentence of 6 months community detention with a curfew of 10:00 pm to 6:00 am seven days a week. And the curfew address is the address recorded in the pre- sentence report.
[44] Unless there are any other matters, that concludes the sentencing. You can
stand down.
Woodhouse J
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