R v Luo HC Auckland CRI 2007-004-22697

[2010] NZHC 1076

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-004-022697

THE QUEEN

v

YIHUA LUO

Hearing:         1 July 2010

Appearances: B D Tantrum for Crown

R J Earwaker for Prisoner

Judgment:      1 July 2010

SENTENCE OF KEANE J

Solicitors:

Crown Solicitor, Auckland

R V YIHUA LUO HC AK CRI 2007-004-022697 [1 July 2010]

[1]      Luo Yihua, you appear for sentence following trial for 12 offences between 5

August - 7 December 2006, nine offences of supplying the class A controlled drug methamphetamine, two of conspiring to do so and one of possession for supply.

[2]      As I said when sentencing Mr Voong, the principal offender at trial, who controlled methamphetamine distribution from the Sky City Casino over the 19 weeks of the police operation, you were his right hand man. You communicated with him frequently. You looked to him for supplies of methamphetamine. You accounted to him for the sales made. He made his supplies, principally through you.

[3]     In all, the Crown contends that you were found guilty of supplying methamphetamine on nine occasions in an amount in excess of 1,000 grams; and also supply of 10,000 methamphetamine tablets. In addition, you were found accountable for possession for supply of 10,000 tablets containing methamphetamine and 28.3 grams of pure methamphetamine, and for conspiring to supply some 280 grams.

Pre-sentence report

[4]      You are, your report says, 32 years of age. You emigrated to New Zealand from China with your family in 1990. You completed school to the sixth form and then worked casually.

[5]      Your report says you did not work between 2004 - 2008. That is incorrect. When you were offending you were working at your girlfriend's karaoke bar. Later you worked at your brother's restaurant. Your terms of bail were altered so that you could work at each. Your report also says that you have previous convictions. That too is incorrect. Until you were convicted of these present offences for sentence you had no previous convictions. You are a first offender.

[6]      Your offending was not prompted by harmful alcohol or drug use or problem gambling.  Rather,  you  say  you  were  anxious  to  make  money  to  improve  your family's life. It was a way of making money fast. You now express remorse. You say that you will not become involved in this way again.

[7]      You confirm that now that your offending has been brought home to you by the jury's verdict you did offend in just the way that the Crown alleged at trial. You did commit the offences of which you have been convicted. The scale on which you offended in aggregate was as the Crown says on sentence.

Purposes and principles

[8]      I must hold you accountable for the harm you have done, promote in you a sense of responsibility, denounce your conduct, deter you and others from acting in this way, protect the community and provide for the interests of any conceivable victim. This was far from victimless offending. I must also, so far as it is compatible, assist you in your rehabilitation and reintegration.

[9]      I must have regard to the following sentencing principles: the gravity of your offending, the need to be consistent in sentence with other cases, the need to impose a sentence near to the maximum, should that be warranted. Equally, I must take into account the contrasting principles: the need to adopt the least restrictive outcome appropriate, the need to take account of anything that would make any otherwise proper sentence disproportionately severe, and the need to recognise you in the context of your family.

[10]    Your offending is drug offending and that means that the principles of denunciation and deterrence must be to the fore. The more purposes and principles of normally have little part to play.

Crown submissions

[11]     The Crown's case is that you are to be sentenced almost indistinguishably from Mr Voong. He acted through you. The sentence that I imposed on him was 18 years imprisonment. That was the starting and end point that I took. The Crown, though it first contended for a higher starting point, submits I should align your starting point with that of Mr Voong's sentence by taking one as close as possible to

18 years.

[12]     The Crown contends also that the end sentence I impose should be the same as my starting point. There are, the Crown says, no mitigating features that should reduce it.

[13]     You have, the Crown accepts, been on bail for three years. But your terms of bail, which first included a curfew and a reporting clause and then in February 2009 were varied to daily reporting without a curfew, are not so restrictive as to warrant any discount on sentence. Any delay by itself, the Crown contends, ought not to be given great weight.

[14]     The Crown seeks a minimum term of imprisonment. If you were eligible for release after one-third of your sentence had been served, the Crown submits, that would be insufficient to denounce your offending, to punish you and deter you and others from offending in this way.

[15]     The Crown seeks also an order forfeiting $16,000 found in your bank box and your car. The former, the Crown says, must be attributable to your offending. Your car, the Crown says, was used in the course of offending.

Defence submissions

[16]     You accept, your counsel has confirmed to me, and as I have said, that the Crown has accurately characterised your part in this offending. However, your counsel says, whether or not you were Mr Voong's right hand man, you and he were not in an equal relationship.

[17]     You were Mr Voong's employee, your counsel says. He used you as a middle man. You received a fixed fee for each transaction, not a share of any profits. You returned all money you received from purchases to Mr Voong. That, your counsel says, is reflected in your relatively modest lifestyle. You are not, as Mr Voong was, an inveterate gambler.

[18]     Your counsel accepts that your lead offences are within band four R v Fatu[1] and that a significant sentence of imprisonment is inevitable. But for the fact that you made supplies to C, who was sentenced from a starting point of 15 years for the supplies he received from you, your counsel contends, the starting point appropriate for your scale of offending ought to be significantly lower.

[1] R v Fatu [2006] 2 NZLR 72.

[19]     The starting point the Crown contends for is reserved for lead offenders. Offending at your level has been visited with sentences beginning from starting points in the range 12 - 13 years.

[20]     There are, as your counsel says, no aggravating features. He invites me to take into account your remorse, your lack of previous convictions and, most especially, the terms of bail to which you have been subject since December 2006. In this he relies principally on R v Christia[2] and R v Aram.[3]

[2] R v Cristia [2008] NZCA 19.

[3] R v Aram [2007] NZCA 328.

[21]     Quite independently, he submits, there has been disproportionate delay before trial. That was found to be so by Venning J on Mr Tan's application for stay.[4]  He declined that application but intimated, as is consistent with what the Supreme Court said in Williams v R,[5] that a reduction in sentence can be a proper remedy.

[4] Tan v R HC Auckland CRI 2007-004-022697, 11 September 2009. 

[5] Williams v R [2009] 2 NZLR 750 at [18].

[22]     Your counsel says that he cannot oppose the imposition of a minimum term of imprisonment. That is open, in principle, for offending on your scale. Whether the minimum term should be 50 per cent, he submits, may be another matter.

[23]     As to the forfeiture orders sought, your counsel submits that there is no evidence demonstrating that the $16,000 that you held in your bank box was attributable  to  this  offending.  You  had  work  at  the  time.  The  car  was  on  hire purchase and was used marginally at most in your offending.

Conclusions

[24]     I sentence you on the basis that you were, as the Crown characterised you, Mr Voong's right hand man. He may have been the master mind but in the way things were arranged. You did the central work.

[25]     You liaised with and made supplies to purchasers like C. You did so in ounce lots on the scale in aggregate that you admit. You may not have been in partnership with Mr Voong. You may have taken a fee. But as you say yourself, you wanted to make money fast. It was a commercial exercise.

[26]     You are, I consider, to be distinguished from Mr Voong. Mr Voong was the source of the drugs that you on-supplied. It was he who had the relationship with those who brought the drugs into the country or manufactured. You acted on his direction, plainly enough, and you took the risks. The starting point for your lead offending, I consider, ought to be 17 years.

[27]     There is then the fact that you were on bail for three years on terms, which were  restrictive  while  you  were  working,  and  that  will  not  be  reflected  in  the sentence that you actually serve. There is then first the delay, then the effects of the terms of bail. Those two factors combined, it seems to me, justify a further reduction in your sentence. That will be one year.

[28]     Apart from that also, you are, I think, entitled to a further discount for the fact that you have, now that the trial is complete, accepted full responsibility for your offending and expressed remorse, which I consider to be genuine and to be encouraged. That will be six months.

[29]    You will be sentenced for your lead offences, the supply offences and possession for supply, to 15 and a half years imprisonment. For the conspiracy offences I will impose concurrently, as I did in the case of Mr Voong, seven years imprisonment. Your effective sentence remains that for your lead offences.

[30]     Your counsel was right to accept that for offending on this scale a minimum term of imprisonment is called for. The offending is of such an order that a sentence conferring eligibility for release at one-third would be insufficient to punish you, to denounce your offending and to be deterrent. It will be a 40 per cent minimum.

[31]     There remains the issue of forfeiture. The vehicle, I consider, must be forfeit. It was used by you in the course of this offending on at least two occasions that can be documented. Your offending called for you to be active and mobile and it must have been used by you in that way.

[32]     The sum of money in your bank box, $16,000, may stand differently. It cannot be attributed entirely to your offending because you also had work in that period. As to that, because I cannot be certain, I will give you the benefit of doubt to this extent. It will be forfeit as to half, $8,000.

P.J. Keane  J