R v Su

[2017] NZHC 1147

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-004-8179 [2017] NZHC 1147

THE QUEEN

v

XIANG SU

Hearing:	30 May 2017
Appearances:	B Northwood for the Crown T Cooper for the Defendant
Judgment:	30 May 2017

SENTENCING NOTES OF GORDON J

Solicitors:           Crown Solicitor, Auckland

Counsel:            T Cooper, Auckland

R v SU [2017] NZHC 1147 [30 May 2017]

Introduction

[1]      Mr Su, you may remain seated until the time comes to formally pass sentence on you.

[2]     Mr Su, you have been found guilty of a single charge of possessing methamphetamine for supply under s (6)(1)(f) of the Misuse of Drugs Act 1975. The offence carries a maximum penalty of life imprisonment.  You were found guilty by a jury of your peers on 5 May 2017 following a jury trial in the High Court here in Auckland.

[3]      I will begin by setting out those parts of the factual background which, in my view, are relevant to the sentence I will impose.  I will then determine an appropriate starting point which reflects the culpability of your offending, before adjusting that starting point to reflect any aggravating or mitigating factors relating to you personally.

Factual background

[4]      In April  and  June 2015,  surveillance device warrants  were issued  in  the Auckland High Court for the interception of communications made and received by Jiawen  Jiang,  David  Vernon,  and  Ryan  Brown,  all  believed  at  that  time  to  be involved in the offence of supplying methamphetamine.

[5]      This supply was facilitated through drivers who were used because both Mr Jiang and Mr Vernon were on electronically-monitored bail and were accordingly unable to leave their homes.

[6]      The Crown case was that you acted as a driver and provided a store-house in your home, where methamphetamine could be kept for the dealers.

[7]      On 16 July 2015 the police executed a search warrant at your home on the North Shore where you lived with your wife and her mother.  In a bedroom on the ground floor, which you had been occupying, the police found 233 grams of methamphetamine hidden in a computer tower under a desk.  The methamphetamine

was packaged in small self-sealing bags.   Seven of those bags contained between

27.5 and  27.7  grams  of  methamphetamine.    The  other  bags  contained  smaller amounts.  The methamphetamine that was found in your bedroom was estimated to have a street value of between $77,000 and $140,000 depending on how it was sold.

[8]      Other items found in a desk in the bedroom included a piece of paper on which was recorded, amongst other things, a series of numbers with decimal points, which were either just over or just under the number 28.   There were also other associated documents.  You accepted in your evidence that the documents were in your handwriting but said you did not know what the numbers related to.

[9]      Also in the desk drawer the police located electronic scales of a kind that were able to weigh very small amounts of methamphetamine and a number of empty and unused self-sealing bags.

[10]     You gave evidence that you had been introduced by your wife to a man who used the English name John. You began to work with John and assisted him with the running of his company out of its premises on the North Shore.  As a result of your association with John, you said, you began to use methamphetamine.  You said you endeavoured to stop using by returning to China for a period.   However, on your return you began using again.

[11]     You claimed you had no knowledge of the methamphetamine hidden in the computer tower.  You said that you had been storing the computer tower for John as a result of John having to move out of his business premises.  You said the computer tower had initially been stored in your garage with other of John’s possessions, but you moved it to your bedroom because of the risk of damage from the damp environment in the garage.

[12]     You said the empty and unused plastic bags and the scales related to your own use of methamphetamine. You said you would divide up any methamphetamine you obtained into smaller portions and put those smaller portions into plastic bags.

[13]     Clearly, by its verdict, the jury did not accept your evidence that you had no knowledge of the methamphetamine hidden in the computer tower.

Pre-sentence report

[14]     The pre-sentence report writer assesses your likelihood of re-offending as low, based principally on your lack of previous convictions, although he warns that this likelihood will increase, if you continue your association with co-offenders.  He assesses you as posing a low risk of harm to others in the community, as you have not committed violent offences.   However, while I acknowledge that you may not have caused direct physical harm to any person, I think it is important to emphasise the very great harm that methamphetamine offending does to this country.  Many of our most violent offences have been committed by individuals who were under the influence of methamphetamine at the relevant time.  So while you may not yourself have committed any violent offences, I am not completely persuaded that your risk of causing harm to others in the community should be described as “low”.

[15]     The  report  writer  says  that  you  continue  to  deny  any  involvement  in supplying methamphetamine, although you have expressed regret for your actions and  are  apparently willing to  undertake programmes  to  address  your offending. However, I am told today by Ms Cooper that you  now accept responsibility for your offending and you have written a letter to the Court to that effect.

Character references

[16]     I have also received a number of character references from your family and friends, which generally do you credit.   Each of them describes you as a compassionate, hard-working man who takes great care of his friends and family. They were each surprised and saddened to learn of your involvement in methamphetamine offending and emphasise that this offending appears to be out of character for you.  A number of them express hope that the Court might impose a sentence of home detention.   However, the nature of your offending means that a sentence of that kind cannot be considered.

Purposes and principles of sentencing

[17]     In  sentencing  you  today,  Mr Su,  I am  required  to  take into  account  the purposes and principles of sentencing, which are set out in the Sentencing Act 2002. In particular, I must impose a sentence which holds you accountable for the very great harm which methamphetamine offending does to the community; which promotes in you a sense of responsibility for, and an acknowledgement of, that harm; which denounces your conduct; and which deters you or any other person from committing similar offences in future.   The sentence which I impose must also reflect the gravity of your offending, the seriousness of this type of offending and the desirability of consistency with appropriate sentencing levels.

[18]     On the other hand, I must also be mindful of the need to assist in your rehabilitation and reintegration into the community; and I must impose the least restrictive outcome that is appropriate in the circumstances.

Starting point

[19]    The starting point in relation to this type of offending is determined in accordance with guidelines set by the Court of Appeal in a case called R v Fatu.1   In that case, the Court said that offending involving the supply of commercial quantities of methamphetamine, between 5 grams and 250 grams, should generally attract a starting point of between three years’ and nine years’ imprisonment.   Quantities towards the higher end of that range will obviously attract a higher starting point. However, the starting point will also depend on the role played by the offender.2

[20]     Mr Northwood, who appears for the Crown today, submits that the Court should adopt a starting point of eight years’ imprisonment.  He says that the quantity of methamphetamine and the state in which it was found, packaged into bags alongside snap lock bags, electronic scales and a tick list, demonstrates that there was a significant degree of commerciality to your offending.  He also says that you played an important role in the supply chain and that a starting point of eight years’

imprisonment would be consistent with the starting points adopted in respect of your

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

2 Ibid at [31].

co-offenders, particularly Ms Grant and Mr Fry.   He referred me to a case, R v Wilson, in which a starting point of nine years’ imprisonment had been adopted for what Mr Northwood said was similar offending.3   However, in that case there were more than 500 individual instances of drug dealing, as well as a manufacturing operation which had produced at least 300 grams of methamphetamine.  In my view, that offending was significantly more culpable than your offending in this case.

[21]     Your  counsel,  Ms  Cooper,  submits  that  a  starting  point  of  six years’ imprisonment would be more appropriate.   She accepts that the quantity of methamphetamine located in your home was relatively large, but says that you had a very limited role in the operation.  In particular, she notes that there was very limited communication between you and the other offenders, and that you have been found guilty of only one charge, whereas your seven co-offenders pleaded guilty to a total of 193 charges between them.

[22]     In  my  view,  a  starting  point  of  six  and  a  half  years’ imprisonment  is appropriate to reflect your culpability.  The quantity of methamphetamine found in your home was significant.  However I accept that, on the evidence presented to the Court, your involvement in the operation was relatively minor.   Between 13 April

2015 and 11 August 2015, the police identified only one communication between you and Mr Jiang, and that communication concerned a relatively innocuous matter. I also accept, in light of your evidence at trial and the character references provided by your friends and family, that  your offending may well have been driven by addiction, rather than any desire for monetary gain.  Finally, I consider that a starting point of six and a half years’ imprisonment is consistent with the starting point adopted in respect of your co-offenders, each of whom played a more significant role in   the   enterprise   and   was   convicted   of   multiple   charges   of   supplying

methamphetamine, as well as possession for supply.

3      R v Wilson HC Auckland CRI-2008-092-17198, 30 June 2006.

Adjusting the starting point

[23]     Both Mr Northwood and Ms Cooper agree that there are no aggravating features relating to you personally which would justify an increase to the starting point.

[24]     However, they disagree about the matter of a reduction in the starting point to take account of your previous good character.  Ms Cooper says that a small discount, in the region of five per cent, would be appropriate to take account of your previous good character.  Mr Northwood, on the other hand, says that you have clearly been engaged in a prolonged period of offending and it is therefore inappropriate to give credit for previous good character.  However, there was no evidence before the Court at trial which proves that you were engaged in a prolonged period of offending.  You have no previous convictions and the character references provided by your friends and family suggest that you have, until this offending, contributed in a positive way to the community.  I consider that a discount of five per cent is warranted to reflect your previous good character.

[25]     Ms Cooper submits that a further discount of five per cent would be justified to recognise your remorse.   The pre-sentence report records that you continue to deny any role in supplying methamphetamine.  However, you say that having since spoken to your wife you do now accept responsibility.   While it is belated, I acknowledge that you now accept the jury’s verdict.  I have also received certificates for courses you have undertaken while in custody.  I recognise these matters with a discount of five per cent.

[26]     Lastly, Ms Cooper seeks a discount to reflect the 21 month period when you were on bail and subject to a night-time curfew.   Section 9 of the Sentencing Act provides that time spent on electronically-monitored bail may be taken into account as a mitigating factor in sentencing.  The question whether to allow a reduction in

sentence on this basis “is of a particularly evaluative nature”4  and the Court must

consider all of the relevant circumstances.5    In this case, you were released on bail simpliciter rather than electronically monitored bail and were subject to a relatively

4      Howie v R [2012] NZCA 55 at [13].

5      Schuster v R [2011] NZCA 343 at [10].

minor restriction on your movements.    In my view, this is not a case where any discount is warranted.

[27]     You are not entitled to any discount for a guilty plea, for obvious reasons.

Forfeiture orders

[28]     The Crown also seeks forfeiture orders in respect of the drugs and related exhibits.  I make orders accordingly.

Result

[29]     Mr Su, please stand.

[30]     On  the  charge  of  possession  of  methamphetamine  for  supply,  you  are sentenced to five years and ten months’ imprisonment.

[31]     Please stand down.

Gordon J