R v Man

[2017] NZHC 1197

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI 2016-004-005389

[2017] NZHC 1197

THE QUEEN

v

TSZ HO MAN

Hearing:	2 June 2017
Counsel:	J Murdoch for Crown P Kaye for Mr Man
Sentence:	2 June 2017

SENTENCE OF DUFFY J

Solicitors/Counsel:

Meredith Connell, Auckland Peter Kaye, Barrister, Auckland

R v MAN [2017] NZHC 1197 [2 June 2017]

[1]    Mr Man, you were found guilty following trial by jury on one charge of importing the Class A controlled drug methamphetamine. The quantity of methamphetamine involved was 2.81 kilograms.

The facts

[2]    The evidence at trial informed me that you were someone who came to New Zealand for the specific purpose of carrying out a methamphetamine importation for a drug syndicate based in Hong Kong. WeChat communications with the spokesperson of the syndicate in Hong Kong which were adduced into evidence at trial referred to a common pool of money and you being answerable to the providers of those funds for how the money was spent in New Zealand.

[3]    You did not carry out the task alone. You had the assistance of a co-offender, Mr Yung. It is clear to me that Mr Yung occupied a subordinate role to you in the offending. It is clear from the WeChat communications you had with the syndicate spokesperson in Hong Kong that Mr Yung played a lesser role. Unlike you, he was not responsible for handling a significant sum of money to fund the stay in New Zealand. He was expected to live in cheaper accommodation to you. He arrived in New Zealand much later than you did. The way the spokesperson in Hong Kong spoke of Mr Yung’s role gave me the impression that Mr Yung was seen by the syndicate as of lesser standing than yourself. At times the spokesperson spoke of Mr Yung in derogatory terms. I have the clear impression that he was seen by all concerned in the importation as someone who was your subordinate.

[4]    Mr Yung pleaded guilty, having accepted a sentence indication before trial, and on 5 May 2017 he was sentenced to 10 and a half years’ imprisonment with a 40% minimum period of imprisonment (MPI) imposed.

Starting point

[5]    The starting point for Mr Yung’s sentence was 14 years’ imprisonment which in my view reflected his lesser role in the importation. Mr Man, you were given a sentence indication by Venning J before trial. Venning J took a starting point of 16 years’ imprisonment, given the quantity of methamphetamine involved and your role

as a catcher. Having heard the evidence at trial I am satisfied that you held a position of significant responsibility in the drug syndicate and that you were more than a catcher. I consider that you were the person responsible for controlling the importation within New Zealand. There are references in the WeChat communications to you finding premises from which you would cook or fry, terms with which this Court is only too familiar as being references to the end point of the manufacture of methamphetamine. With this importation some of the product was in liquid form which would have required heating to turn it into methamphetamine powder that would be available for distribution as a usable form of this drug. You were responsible for securing the methamphetamine when it arrived in New Zealand and finding premises for its processing to turn the drug into a usable form. The WeChat communications suggest you would have been the cook and then organising the passing on of the drug to others in this country. When I refer to the other steps you were going to take it is not that I am holding you to account for what was potential criminal conduct, I merely take note of it because it is factors that I take into account when assessing where I place you in the hierarchy of this drug syndicate. Because I consider you played a more significant role in the importation than did Mr Yung I see no reason for there to be parity between the starting point adopted for him and that adopted for you.

[6]    Unlike Venning J I have had the benefit of hearing the entirety of the Crown’s case against you. Having heard the evidence and seen the extent to which you were involved at the New Zealand end of the operation I am satisfied that the level of your involvement and hence your culpability warrants a higher starting point than 16 years’ imprisonment.

[7]    Here there was a large commercial quantity of methamphetamine imported. It clearly falls within band 4 of the sentencing bands in the guideline judgment R v Fatu.1 It is accepted that primary offenders can expect starting points towards the higher end of the relevant band with the converse applying to those whose role is less significant.2 Here the Crown points to the extent of the commerciality and sophistication of your role and submits a starting point of at least 16 years’ imprisonment is appropriate.

1      R v Fatu [2006] 2 NZLR 72 (CA).

2 At [31].

[8]    I am satisfied that given your role in this operation the appropriate starting point here is one of 17 years’ imprisonment. I have taken 17 years’ imprisonment as the starting point because I consider the evidence at trial shows you to have been more seriously involved than was apparent when Venning J gave the sentencing indication, which was based on the summary of facts placed before him. The change of view I have taken requires recognition by way of a higher starting point to the one that Venning J would have imposed. Accordingly, the starting point will be one of 17 years’ imprisonment. That starting point is consistent with starting points adopted or affirmed by the Court of Appeal in a number of recent methamphetamine importation cases.3

Aggravating factors

[9]I accept there are no aggravating factors personal to you.

Mitigating factors

[10]   Regarding mitigating factors, you do not have the benefit of a guilty plea mitigation. You rely on remorse and your efforts at tackling your gambling addiction. I have taken into account the letters in which you express your remorse and regret for the offending. It is contrary to how you presented yourself at trial when you denied having any knowledge that the product being imported into New Zealand was an illegal drug. You said you thought it was illegal cigarettes. The jury’s verdict shows that explanation to have been a lie.

[11]   I do not believe that the remorse and regret you now express is genuine. There is nothing in your conduct right up until the time the jury delivered a verdict of guilty that suggested remorse. The attendance at a gambling course in prison and the regret expressed in your letters to the Court are in my view belated attempts that you now make in the hope of achieving a sentence reduction. I consider any regret and remorse you express is in the nature of self pity for finding yourself in the position that you are now in.

3      O’Connor v R [2016] NZCA 414; Hoang v R [2016] NZCA 335; Obianga v R [2016] NZCA 270;

Chea v R [2016] NZCA 207.

[12]   In your letter you referred to the fact that you do not touch methamphetamine. You refer to the fact that you have no previous offences. This Court, from time to time, sentences persons on methamphetamine offending who are themselves addicts of the drug. It is their addiction that has often driven them to offend. One of the pernicious characteristics of this drug is people are easily addicted to it and once they are, because it is expensive, they are driven to themselves becoming involved in criminal conduct in order to get the drug for themselves.

[13]   In your case you made a cold blooded decision – a rational decision on your part it seems - to carry out this offending simply to obtain money to deal with a gambling debt. That was in circumstances where you are well educated, you are a bachelor of engineering and you had a well paid job in Hong Kong. You were in a far better position that many of the people who find themselves locked in the cycle of methamphetamine offending. It is a pernicious drug that has done great harm within New Zealand society.

[14]   The overall impression I have of your conduct, based on the evidence and the way you presented in Court, is that you are someone who thought being part of the syndicate to import methamphetamine into New Zealand was a way for you to make a lot of money quickly. This would have been at the expense of persons in our community. You placed yourself and your family’s need for money because of your gambling debts above any concern for the damage an illegal drug like methamphetamine does to New Zealand families, to people who live in this country. You gambled on not being detected. The gamble did not pay off. The importation was picked up by border control. It is well established that in general personal circumstances have little bearing on sentencing for serious drug offending, and importation of a Class A controlled drug like methamphetamine is very serious offending.

[15]   I am not satisfied that the mitigating factors to which you point warrant any discount in the sentence. I accept the Crown’s submission in reliance on R v Jarden where the Supreme Court emphasised that in sentencing those convicted of dealing

commercially in controlled drugs the personal circumstances of the offender must be subordinate to the importance of deterrence.4

[16]   I do propose to reduce the sentence by six months to take into account the fact you have no family in New Zealand, that you were a visitor to this country and that serving a long sentence of imprisonment in New Zealand will be more difficult for you than it would for a New Zealand resident.

Minimum term of imprisonment

[17]   It follows that the end sentence will be one of 16 and a half years’ imprisonment. I accept the Crown’s submission that a minimum period of imprisonment of at least 50 per cent is warranted.

[18]   The court may impose a minimum period of imprisonment if it is satisfied that the one-third default minimum is insufficient either to hold the offender accountable for the harm done, denounce the conduct, deter the offender or others, or protect the community.5

[19]   Offending of this nature causes very significant harm to the community. It is particularly concerning when an individual comes to this country from overseas for the express purpose of perpetrating this type of harm for personal monetary gain. I am satisfied that a minimum period of imprisonment of one-third would be insufficient to hold you accountable for your offending and to deter others from committing the same or similar offences in future. I consider that a minimum period of imprisonment of 50 per cent is warranted. In arriving at the end sentence that I have done I have taken into account the purposes and principles in the Sentencing Act.

Result

[20]   Mr Man please stand. On the offence of importation of methamphetamine you are sentenced to 16 and a half years’ imprisonment with a minimum period of 8 years and three months’ imprisonment. Please stand down.

4      R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [12].

5      Sentencing Act 2002, s 86.