R v Ly

[2012] NZHC 150

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-000047 [2012] NZHC 150

THE QUEEN

v

PHAP LY

HOANG QUOC NGUYEN

Hearing:         3 February 2012

Counsel:         B D Tantrum & M Williams for Crown

R M Mansfield for Prisoner Ly
S Cullen for Prisoner Nguyen

Judgment:      3 February 2012

SENTENCE OF KEANE J

Solicitors:

Crown Solicitor, Auckland

R V PHAP LY HC AK CRI 2011-404-000047 [3 February 2012]

[1]    Phap Ly and Hoang Nguyen, you appear for sentence for selling pseudoephedrine on six occasions between 10 March - 17 May 2010.

[2]      You pleaded to these offences before the jury as your trial was about to begin. You continued to contest at trial more serious counts of manufacturing methamphetamine and in that you succeeded. I discharged you on those counts. Phap Ly you are also for sentence for simple possession of cannabis.

[3]      The pseudoephedrine offences to which you pleaded and for which you are for sentence were all supplies to your co-accused, Scott Filer and Steven Mehrtens, on 10 and 18 March 2010, then on 7 and 29 April and finally on 5 and 17 May.

[4]      A curiosity is that Delia Fonotia is also for sentence for supplying earlier pseudoephedrine received from you before she was arrested on 15 February 2010. You have never faced any counts relating to any such supplies. I treat those supplies as no more than matters of context.

[5]      The Crown invites me to sentence you on the basis that you, Phap Ly, were the more significant of the two of you because you negotiated directly with Mr Filer and Mr Mehrtens after Delia Fonotia was arrested, whereas you, Mr Nguyen, did not but you were equally active in the transactions once they were made. Your counsel support or deny that distinction in the submissions they have made.

[6]      The Crown also invites me to sentence you on the basis that you supplied Mr Filer and Mr Mehrtens 31 sets of pseudoephedrine and that this quantity could have yielded  1.4  -  2  kilograms  of  methamphetamine.  Your  counsel  accept  that  you supplied sufficient sets to yield 1.4 - 1.5 kilograms of methamphetamine. Against that context I turn to your individual circumstances.

Phap Ly

[7]      Phap Ly, you are aged 28. Presently you live with your parents in Wellington. You are employed in their business. At the time of this offending you were, your

report says, living in Auckland, you were gambling, you were using alcohol heavily in response to financial stress. It appears you were also to some degree using drugs.

[8]      A term of imprisonment is recommended in your case but, should you be eligible for a sentence of home detention, there is no issue about your ability to serve that sentence at your family's address. You have for the past 21 months been on bail, I understand, and more recently at that address. Recommended special conditions are that you be assessed for alcohol and drug abuse and complete any related program and counselling.

[9]      I  have  a  letter  from  your  parents  which  says  that  you  still  have  debts outstanding from the period during which this offending occurred and I have no hesitation in accepting that to be so.

Hoang Nguyen

[10]     Hoang Nguyen, you are aged 28 as well. You, like Mr Ly, have been on bail for the past 21 months living with your partner. You work in her company six days a week  and  you  attend  church  together  on  Sunday.  She  supports  you  today  on sentence.

[11]     Your  offending  also,  you  told  your  assessor,  coincided  with  increasing financial  pressure  that  has  not  ceased.  You,  in  contrast  to  Mr  Ly,  have  no complicating actual or potential dependency on alcohol or drugs. Nor have you been a gambler.

[12]     In your case also it is recommended that you be sentenced to imprisonment but  you  are  equally  capable,  your  report  says,  of  serving  a  sentence  of  home detention should that be appropriate. You would continue to live with your partner as you have and, to the extent possible, continue to work in her business presumably.

[13]     In sentencing each of you I must hold you accountable for the harm you have done, promote in you a sense of responsibility, denounce your conduct, deter you from acting in this way again, and others for that matter, protect the community and assist you to the extent I can in your rehabilitation and reintegration.

[14]     The sentencing principles I must apply are, likewise, contrasting. There are those that point to how grave your offending may have been and the need for a sentence that marks that to be so. Contrastingly, there are those that have as their concern your individual circumstances and the need for rehabilitation and reintegration.

[15]     Drug offending, however, normally requires that personal circumstances be set to one side. Denunciation and deterrence is what principally is called for.

[16]     You are to be sentenced, according to the two fold scale set out in R v Ho[1] in which instigators or master minds attract starting points in the range six - seven years and those who play a lesser part starting points in the range three - five years. The Crown applies that distinction quite literally. Your counsel contests that it cannot be literal. I agree.

[1] R v Ho HC Auckland CRI 2005-092-000567, date, 12 April 2005, since approved in R v Qiu

CA202/06, 11 October 2006.

[17]     To be taken into account, as the cases demonstrate, I consider, is a mix of considerations that includes the point in the supply chain at which you appear, your role at that point and the quantity involved in the transactions the subject of sentence. There is no simple or single answer.

Crown submissions

[18]     The Crown contends in your case, Mr Ly, for a starting point of six - eight years. It does so on the basis that you were a direct supplier to Mr Filer and Mr

Mehrtens;  and  that  you  supplied  pseudoephedrine  capable  of  yielding  1.4  -  2

[19]     In your case, Mr Nguyen, the Crown contends for a starting point of five - six years. It contends that you were equally instrumental in these transactions but did not deal directly with either Mr Filer or Mehrtens.

[20]     The Crown distinguishes you both from your immediate source of supply in some instances, Mr Hsu, who was sentenced from a starting point of three and a half years imprisonment. He was, the Crown contends, no more than a courier. Your ultimate sources of supply lay beyond him.

[21]     The Crown contends that your plea, which came on the first day of trial, was unexpected and can warrant no greater discount than 15%. The Crown does not accept that you were entitled to delay your plea until trial because you remained for trial on the more serious counts of manufacturing on which you were acquitted. The Crown identifies no further sources of discount.

Defence submissions - Ly

[22]     Mr Ly, your counsel contends for a starting point no higher than three years, six months. He does so on the basis that the quantity you were party to supplying was relatively modest, that you were the ultimate point in the supply chain, that you were more analogous to a courier than a supplier, and that your profit margin was modest.

[23]     Your counsel contends, secondly, that you are entitled to a full 25% credit for plea. Before trial, he says, you offered to plead guilty to the pseudoephedrine supply counts for which you are for sentence but the Crown would not countenance that because it wished to pursue the manufacturing counts.

[24]     He tells me that the sticking point was that you would not then concede any culpability for the supplies made to Ms Fonotia that are not the subject of any count in the indictment. He relies on the fact that your trial was inevitable, because of the Crown's insistence on the manufacturing counts proceeding. Also that you were

[25]     Your counsel asks as well for a discount on account of the fact that you have been on stringent terms of bail for 21 months that constrain your liberty. He seeks as well a 5% discount for remorse because you have, as you set out in your affidavit, turned your life around. You have also, as you yourself have said in your affidavit filed in support, begun to appreciate to what extent your offending was at cost to others.

[26]     You are entitled, therefore, your counsel submits, to a final sentence of no more than two years imprisonment, a short sentence that qualifies you for home a sentence of home detention. That sentence is open on your assessment. It is one, he submits, that ought to be imposed.

Nguyen - defence submissions

[27]     Mr Nguyen your counsel also, having heard the submissions of other counsel today, aligns himself with what is said on Mr Ly's behalf. If anything, he submits, you are distinguishable from Mr Ly in the sense that the Crown contends for, not to be assimilated with Mr Ly as has also been suggested.

[28]    Your position is that, in various ways, you assisted Mr Ly to complete transactions that he entered into. You seek a starting point of the same order as Mr Ly, if anything something less. You too, your counsel says, seek a discount for plea of the fullest order and on the same basis as has been contended for Mr Ly. You too contend for a sentence of home detention.

Conclusions

[29]     Mr Ly and Mr Nguyen, you are for sentence on the basis of six actual sales of pseudoephedrine to Mr Filer and Mr Mehrtens, sales preceded by the earlier transactions in which you, as well as Ms Fonotia, played the instrumental part. I put that no higher but it is not to be ignored.

[30]     You are not, either of you, to be aligned with Mr Hsu. Mr Hsu was a courier between you and your source of supply. He brought pseudoephedrine to you and he received cash payments in return. Whatever he was paid, himself, and however it compares with your own margin, he was entirely instrumental. You two chose to enter these six transactions, which were quite conventional commercial transactions. In that sense that you made from them is immaterial.

[31]     The quantity traded, on the Crown's case, 31 sets of pseudoephedrine, was far from  negligible.  It  would  have  yielded  1.4  - 2  kilograms  of methamphetamine. Precisely what it was will never be known. When Mr Hsu was sentenced it was on the basis that when he brought supplies of pseudoephedrine to you, they were of the order of two kilograms each time. However, I sentence you on the basis of the range that Crown advances, which you accept at the lower end.

[32]     On a Ho analysis I do not consider that either of you quite sits in the more serious of the two categories there identified. Certainly you entered into these transactions of your own initiative, as I have said. But, equally, you were not at the very beginning of the supply chain. Nor the taker of the largest profits. On that basis I take for you, Mr Ly, a starting point of five years imprisonment and for you, Mr Nguyen, a starting point of four and a half years imprisonment.

[33]     You are, I consider, entitled to a discount on a number of bases: your relative lack or complete absence of previous convictions, the lengthy time you spent on bail on stringent terms, the fact that while on bail you lived productive lives, and finally remorse. I allow you each a discount of 12 months. That means, Mr Ly, that your sentence reduces to four years imprisonment and yours, Mr Nguyen, three and a half years. You are then entitled to a discount for plea.

[34]     The principal counts that you faced at trial, the manufacturing counts, were the counts that mattered. These present offences were second order. The Crown says you could have pleaded to these early and maintained your position as to the manufacturing counts at trial. Your own counsel say that it was important to your defence of the manufacturing counts to reserve your pleas and to enter them before the jury.

[35]     I have decided that this tactical decision on your part cannot be discounted and thus, without being precise about it,  to allow each of  you nine months on account of your plea. That reduces your sentence, Mr Ly, to three years, three months imprisonment and your sentence, Mr Nguyen, to two years, nine months imprisonment. You are sentenced accordingly.

[36]     Mr Ly you are discharged on the simple possession offence. The cash in your possession on 17 May 2010, Mr Ly, is forfeit to the Crown unopposed.

P.J. Keane J