R v Situ
[2012] NZHC 3008
•1 November 2012
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI 2010-009-008952 [2012] NZHC 3008
REGINA
v
RONGJUN SITU
Hearing: 1 November 2012
Counsel: B Hawes and N Robson for Crown
M J Callaghan for Prisoner
Judgment: 1 November 2012
SENTENCING REMARKS OF WHATA J
[1] Mr Situ, you have been found guilty and convicted of one charge of conspiracy to manufacture a Class A controlled drug, methamphetamine. The maximum penalty for this is 14 years imprisonment.
The facts
[2] It is important to set your activities within the wider context of the methamphetamine enterprise that you were associated with.
[3] There were numerous persons involved in the enterprise, including Mr Newton, and more broadly Mr Linton, Mr Black, Mr Box, Mr Miles, Mr Lee, Mr Smith and Mr Harris. I am satisfied however that your involvement was
primarily limited to your contact and working with Mr Newton, who was the central
R V SITU HC CHCH CRI 2010-009-008952 [1 November 2012]
figure in the methamphetamine enterprise. However the scale of this enterprise was not small. As a result of the police investigation into the activities of the abovementioned persons, five clandestine laboratories were located. A total of 109 grams of methamphetamine was found at four addresses, at a street value of over
$100,000. Various types of substances containing pseudoephedrine were also located at four addresses, capable of producing methamphetamine worth between
$216,000 and $306,000. $134,855 was also found.
Your role
[4] In terms of your role, while the enterprise overall was large, I am satisfied, as I have said, that your role in it was relatively confined. I am satisfied that you supplied or brokered the supply of pseudoephedrine-based products to Mr Newton. It is not clear on how many occasions you did this, but the content of your discussions with Mr Newton suggests that price points had been established based on prior trading. There is some evidence that the quantum of the product exchanged was at a commercial scale. There was at least one transaction involving the sum of
$9,000. The Crown also suggest that in one exchange between you and Mr Newton, a previous transaction commanded a dollar value of “one hundred and something thousand”. While I am not entirely convinced that this exchange is sufficiently clear to show a scale of transaction of that magnitude, I am satisfied from the totality of the evidence that you were dealing at a commercial scale and on more than one occasion.
Personal circumstances
[5] I now turn to your personal circumstances.
[6] You are a married man and you currently live at your sister’s home. You had a struggling takeaway business in which you also lived up until the Christchurch earthquake. Since then you have been unemployed. You were supposed to attend an employment course as a condition of keeping an unemployment benefit, but you stopped this because of the ongoing requirements of this case. As a result, Work and Income New Zealand cancelled your benefit entitlement. You are keen to find work
and rental accommodation for yourself and your immediate family, but at the moment there are nine persons, including four children, living at one small home.
Pre-sentence report
[7] I have also had the opportunity to read your pre-sentence report. You explained to the probation officer preparing your pre-sentence report that you met Mr Newton while engaged in gambling at a local hotel. You say that Mr Newton lent you money which was used for gambling. You explained that at one point you owed Mr Newton about $2,000 and that he pressured you to sell goods and property of other drug debtors, and you admit that you accepted methamphetamine from Mr Newton.
[8] You have a short list of previous convictions including receiving stolen goods, but these are unrelated to the current offending.
[9] The report writer considers that you present as a low risk of further offending. The report refers to the positive influence of your family, your wife, the shame engendered by this offending, and that this may be enough incentive to resist any future temptation. No interventions are recommended. In terms of sentence, home detention is recommended.
Crown position
[10] The Crown in submissions to me refers to the cases of R v Grace and R v Manuel.[1] In the former case, the Judge held that the offender was not involved as a principal conspirator, but was dealing as a supplier of precursor substances to assist in the manufacture of methamphetamine. A starting point of five years was adopted. In R v Manuel the High Court adopted a starting point of three years where a co-offender admitted to supply of pills and other precursor substances. This is
distinguished from the present offending, the Crown says, because you were not
simply swapping the precursor substances for methamphetamine.
[1] R v Grace HC Hamilton T20514, 10 November 2005; R v Manuel HC Whangarei CRI 2003-
090-13812, 12 October 2004.
[11] The Crown therefore seeks a starting point of five years. In terms of aggravating features, the Crown says that your previous convictions do not require the starting point to be adjusted. The Crown is also unaware of any personal mitigating features that would warrant the starting point to be reduced.
Defence submissions
[12] Mr Callaghan on your behalf stressed your limited role in the conspiracy. He says that your involvement is that of a “broker”, as referred to by the Crown. He says there is no evidence that you were ever in possession of any precursor substances so that you are not at the level of a supplier but should be regarded as a person who can offer to supply precursor substances. He says there was no evidence of you actually dealing or supplying methamphetamine. He also highlights as significant that at the termination phase of Operation Granite the prevalence of precursor substances is very limited and that the only evidence of numbers was an intercepted communication on 15 May, where there is talk of $9,000 worth of precursor substances. He therefore says that your position must be at the lower end of the chain. Counsel also highlights the fact that it is not clear that any agreement was reached on the supply of precursor substances and there is no evidence to suggest that you were directly involved in any manufacturing process. He says you were not part of the inner circle.
[13] On the starting point, your counsel invited me to consider that your participation in the conspiracy was an offer to supply precursors which attracts a penalty of seven to eight years. Taking all of the factors outlined above, he initially submitted to me that a sentence with a starting point of two years is appropriate and that, if so, a sentence of home detention could be considered. Your counsel however developed this in light of my other sentences that he heard today to suggest that a starting point of three years and six months might be appropriate.
Assessment
[14] I turn then to my assessment.
[15] As I have said in other related sentences, the guideline judgment of R v Fatu[2] is helpful. Fatu established four bands for manufacture of methamphetamine, namely:
[2] R v Fatu [2006] 2 NZLR 72 (CA).
(a) Band 1 – not applicable because manufacture of methamphetamine almost always involves significant commerciality.
(b) Band 2 – manufacture of up to 250 grams - starting point 4-11 years imprisonment.
(c) Band 3 – manufacture of large commercial quantities (250-500 grams) - starting point 10-15 years imprisonment.
(d) Band 4 – manufacture of very large commercial quantities (500 grams or more) - starting point 13 years to life imprisonment.
[16] The Court in R v Te Rure,[3] however, noted that conspiracy involves lesser criminality than supply and manufacture. I am certainly of the view that that is the case in respect of you. While plainly there is direct evidence that you were engaged in a “brokering” role, I do not think that the evidence is sufficient to establish that it was at the high end of the commerciality scale. In this regard, I have in mind the fact that Mr Newton (as the central player) appeared to be sourcing precursor substances from various persons and at levels far greater than those discussed with you. Nevertheless, I am satisfied, as I have said, that the evidence points to more than a one-off level of transaction between you and Mr Newton.
[3] R v Te Rure [2008] 3 NZLR 627 (CA).
[17] I have examined in a preliminary way a range of cases dealing with methamphetamine conspiracy, manufacture and supply, including those cited by the Crown.[4]
[4] Refer [10] above; and see R v Vitali HC Auckland CRI 2005-004-020376, 29 August 2006;
[18] In each of these cases there were varying degrees of involvement by the sentenced offenders in methamphetamine conspiracy, manufacture and supply.
Lower level commercial enterprise appears to attract starting points in the range of
four to seven years, while active involvement in moderate to large commercial production and sale of methamphetamine (as well as conspiracy) attracts a starting point in the range of seven to 14 years. This would indicate a preliminary starting point of four to five years might be appropriate in relation to you. However, as I have said, the scale of your involvement, while commercial, could be described as part time and at most a go-between or “broker”. In this regard, the physical evidence against you is virtually non-existent, further suggesting a relatively minor role in the methamphetamine conspiracy. In those circumstances, I consider that a starting point of three years and six months is appropriate. I note for completeness that the Crown relied on R v Grace where a term of five years imprisonment was the identified start point. Some care needs to be taken though in adopting the approach taken there because, as the Judge says in that case, he took a totality approach to the start point which involved a number of elements of offending. Grace is also to be compared with the two years imposed for low level conspiracy offending in Gray.
[19] There are no obvious aggravating factors in relation to the offending. I consider, however, that there are some mitigating factors. It is not challenged by the Crown that your involvement in this offending may have had something to do with gambling debts and then drug dependency. This is relevant at two levels. Firstly, in my view, it reflects the nature of your culpability. Secondly, and more importantly, given the strong family support that you have and the observations in the pre- sentencing report, there is a strong prospect of rehabilitation and a low risk of re-offending. In my view that should bear on overall sentence. In those circumstances, I consider that you are entitled to a 10% discount for those factors.
[20] Given the above, Mr Situ, I now sentence you on one count of conspiracy to manufacture methamphetamine to three years and two months imprisonment.
[21] For completeness, I have noted the recommendation of home detention in your presentencing report. However, your end sentence does not permit the imposition of home detention, given that it exceeds the maximum period of two years.
[22] Mr Situ you may stand down.
Solicitors:
Raymond Donnelly & Co, Christchurch
M J Callaghan, Christchurch
R v Johnstone HC Rotorua CRI 2006-063-4598, 5 February 2009; R v Hair [2009] NZCA 214;
R v Gordon-Smith [2008] NZCA 33; R v Holloway [2007] NZCA 508; R v Pue, CA78/04,
19 May 2005; R v Gray HC Auckland CRI 2006-004-3200, 25 September 2007; R v Tawhiri HC Tauranga CRI 2008-070-1877, 5 February 2010; R v Dunn HC Auckland CRI 2008-404-000076,
21 August 2008; Taylor v R [2012] NZCA 332; R v Hansen HC Whangarei CRI 2007-404-37,
14 February 2008.
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