R v N HC Auckland CRI 2008-092-2364
[2009] NZHC 2577
•1 December 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2008-092-2364
THE QUEEN
v
N
Hearing: 1 December 2009
Appearances: B Northwood for Crown
K P Brosnahan for N
Judgment: 1 December 2009
SENTENCING REMARKS OF ALLAN J
Solicitors:
Crown Solicitor Auckland
K P Brosnahan
R V N HC AK CRI 2008-092-2364 1 December 2009
[1] Ms N , you appear for sentence on seven counts of supplying methamphetamine, having pleaded guilty on 7 August 2009. The maximum penalty for these offences is life imprisonment.
Offending summary
[2] Between 11 May and 28 June 2007, the police conducted a drug operation involving a number of suspects. As part of their investigation they intercepted cell phone conversations between you, Mr Kha, and a co-offender, Mr Crichton. As a result, four offenders, including you, were arrested and charged with supplying the class A controlled drug methamphetamine.
[3] There was a distinct pattern to the offending. You obtained your supplies from Mr Wei and then in turn supplied Mr Crichton. Mr Kha, with whom you had been in a relationship, by this time was in custody, but he nevertheless acted as a go- between, organising by cell phone the supply of methamphetamine from Mr Wei through you to Mr Crichton.
[4] On the police case Mr Crichton ran his own supply syndicate and supplied methamphetamine to a Mr Khan who in turn sold the drugs in smaller amounts throughout South Auckland.
[5] By reference to the intercepted phone calls the police were able to obtain evidence of supplies on six separate occasions between 12 May and 11 June 2007. Your dealings were invariably in multiples of an ounce which has a street value of between $10-14,000. In total, over these six occasions, you supplied Mr Crichton with 1kg or 1.1kg of methamphetamine.
[6] In addition, you supplied methamphetamine to your own clients and associates. The amounts concerned were sold in gram or ounce units. Between 200-
300g of methamphetamine were supplied to persons other than Mr Crichton between
12 May and 28 June 2007; so the total involved in the offending is between 1.3 and
1.4kg.
Personal circumstances
[7] You were born in Vietnam in 1978 and most of your family still lives there. After completing your schooling in Vietnam and working as a hairdresser in Ho Chi Min City you came to New Zealand in 1998 to study, supported by your mother who believed that you would enjoy a better life here. You commenced studying English but for financial reasons it was necessary for you to take up employment. In 1999 you married and had a son who is ten years old. His father and you have long since separated and your son has returned to Vietnam for the time being. He is living there with your sister.
[8] Although you have some understanding of English, there are still some difficulties in understanding the language and these have limited your ability to undertake or maintain long term employment. About four years ago you entered into a relationship with your co-offender Mr Kha. This has now come to an end and you have been in a de facto relationship with another man for about a year.
[9] At the conclusion of the inevitable sentence of imprisonment which must be imposed today, you hope to marry your present partner and have your son returned to New Zealand.
[10] It appears that Mr Kha was largely responsible for your introduction to the drug world, and your subsequent involvement in it. He himself is addicted to class A drugs and had been involved in acquiring drugs for his own consumption. That later extended to large scale dealing in drugs.
[11] You do not use drugs, but you accept you became involved in Mr Kha’s activities, and indeed, since his remand in custody you have played a significant role in what, on any view, was a substantial drug dealing operation. There is a suggestion in the pre-sentence report and in your counsel’s submissions, that you may have been under some pressure from associates of your co-offenders to continue
your drug dealing activities. For present purposes I accept that may indeed be so, but the pressure would not have been there unless you had allowed yourself to be involved in very serious criminal activity in the first place.
[12] I accept that you are regretful, and that you have repeatedly expressed your remorse for what has occurred. You are assessed as being at low risk of further re- offending, and the probation officer considers that you are highly motivated to stay out of trouble in the future.
[13] The fact that you have severed your involvement with your co-offenders and acquired a new group of non-offending friends, including your present partner, provides perhaps some grounds for optimism. You have no previous drug related convictions, although you do have a limited list of previous convictions involving common assault, shop lifting and minor traffic infringements. They will have no impact upon the ultimate outcome.
Sentencing principles
[14] The sentencing principles to which the Court must have regard are set out in ss 7 and 8 of the Sentencing Act. I take them generally into account. In cases such as the present which involve large scale commercial drug dealing, there must be an emphasis on denunciation and deterrence. The deterrence aspect is aimed not just at you, but also others who might contemplate engaging in similar activity. The need for accountability is to the fore.
[15] Having said that, I need to take into account your prospects for rehabilitation and the need for you to be re-integrated into the community at the end of your sentence. Personal factors must be relegated in importance to a substantial degree in cases of serious offending involving Class A drugs.
Counsels’ submissions
[16] Counsel are agreed that this case is governed by the tariff case of R v Fatu
[2006] 2 NZLR 72. It is common ground also that the case fits into band 4, which covers dealings in very large commercial quantities in excess of 500g. The starting point in such cases is between 10 years and life imprisonment.
[17] There is not a great deal between counsel when it comes to proposals in respect of an appropriate starting point. Mr Northwood suggests a starting point in the region of 14 years imprisonment. Mr Brosnahan thinks the starting point ought to be in the range of 12-13 years.
Discussion
[18] It is appropriate to consider one or two comparable cases. R v Khan & Ors HC AK CRI 2008-092-2364 15 October 2009, is notable because it is connected to the present offending in that Mr Crichton supplied much of the methamphetamine he received from you to Mr Khan, who in turn distributed it to his customers and other street level dealers. Mr Khan also obtained separate supplies from Mr Diran. Mr Khan was sentenced on the basis that he had supplied a total of 2kg of methamphetamine to others. The Court took a starting point of 16 years imprisonment, noted that the presence of ammunition in his house was an aggravating feature, allowed a discount of 15% for a late guilty plea, and imposed an ultimate sentence of 15 years imprisonment. A minimum term of half of that sentence was imposed.
[19] Mr Diran was sentenced on the basis that he had supplied about 800g of methamphetamine to Mr Khan and to his own customers. The Court took a starting point of 12 years imprisonment, reduced to 10 years by reason of a very late guilty plea. Again, a minimum period of half of that sentence was imposed.
[20] In R v Li HC AK CRI 2006-019-8458 25 August 2009, the prisoner had been found guilty by a jury of methamphetamine dealing offences. He was sentenced on the basis that he had supplied a total of 1kg of methamphetamine. The Court adopted a starting point of 12½ years imprisonment and after minor deductions for one or two mitigating factors, an ultimate sentence of 11 years three months
imprisonment was imposed. A minimum period of imprisonment of five years was ordered.
[21] In R v Huang and Wei HC AK CRI 2006-019-8450 8 May 2009, Wei had pleaded guilty to charges of supply and possession for supply of methamphetamine, involving a total of 5.4kg. There was a guilty plea two weeks prior to trial. The Court considered that a starting point of at least 20 years imprisonment was justified. Ultimately the sentence was 15 years imprisonment. There was no minimum period of imprisonment. His co-offender Haung was found guilty in respect of just over
2kg of methamphetamine following a jury trial. He controlled a drug stockpile and supplied Wei and another. The Court adopted a starting point of 17 years imprisonment and after allowing for personal circumstances, imposed a sentence of
15 years imprisonment. The Court declined to impose a minimum period of imprisonment.
[22] The appellant in R v Zhou [2009] NZCA 365 was a member of the same offending group as Wei and Huang. The sentencing Judge regarded him as the lynchpin of the operation. The total quantity involved was 3.768kg. Having pleaded guilty he was sentenced to 15 years imprisonment with a minimum period of eight years. The sentencing Judge had adopted a starting point of 20 years imprisonment.
[23] I consider that the appropriate starting point in this case is 13 years imprisonment. The offending is similar in some respects perhaps to that in Li which attracted a starting point of 12½ years imprisonment, but here a greater quantity of methamphetamine was involved. I must take into account also the fact you were not simply a courier, but what could be best described as a “middle man”, as was the prisoner in Li.
[24] There is not much indication that you made a great deal of money out of the offending, and your lifestyle seems to have been modest. The fact the offending occurred over a relatively limited period of time is of little account. Dealings during that period were very substantial and it is a reasonable inference that your dealings had commenced some time earlier.
[25] From that starting point of 13 years it is necessary to deduct sufficient to recognise mitigating factors. First there is your guilty plea. It came very late and in accordance with the guidelines laid down in R v Hessell [2009] NZCA 450, would ordinarily attract no more than 10%. But in an associated case, Williams J has indicated that 15% should be allowed and in this particular case, I will allow 20% by reason of your language difficulties, the substantial quantity of written material that had to be considered and the unavailability of senior counsel for a time.
[26] In addition I am mindful of your relatively trouble-free background and your personal qualities which are attested by the bundle of testimonials and references which I have carefully read. It is plain you are regarded as a person of quality who has much to offer your friends and indeed the wider community.
[27] I take into account also the fact you are not fluent in English and a sentence of imprisonment will rest more heavily upon you than it would upon others who are not handicapped in that way.
[28] Finally there are personal factors which it is unnecessary to discuss but which justify a very substantial additional discount.
[29] In the result I have decided there should be a discount of seven years from the starting point to recognise all of these mitigating factors which results in a final sentence of six years imprisonment.
[30] In cases such as these it is routine for minimum periods of imprisonment to be imposed. Mr Northwood has indicated he does not seek the imposition of a minimum period of imprisonment in the particular circumstances of this case. That approach by the Crown is the correct one.
Sentence
[31] On each of the seven counts to which you have pleaded guilty you are sentenced to six years imprisonment. The sentences are concurrent, so the total sentence is six years. There will be no minimum period of imprisonment.
C J Allan J
0