R v Sun
[2017] NZHC 6
•13 January 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-004-7734 [2017] NZHC 6
THE QUEEN
v
JIA SUN
Hearing: 13 January 2017 Appearances:
F Culliney for Crown
S Wimsett for DefendantSentence:
13 January 2017
SENTENCING REMARKS OF LANG J
R v JIA SUN [2017] NZHC 6 [13 January 2017]
[1] Mr Sun, you appear for sentence today having pleaded guilty to charges of supplying pseudoephedrine and being in possession of ephedrine and methamphetamine for supply. Pseudoephedrine and ephedrine are Class B controlled drugs. Being in possession of, or dealing in, those drugs carries a maximum penalty of 14 years imprisonment. The charge of being in possession of methamphetamine for supply carries a maximum sentence of life imprisonment.
[2] You pleaded guilty following a sentence indication hearing before me on
10 January 2017.1 At the conclusion of that hearing you accepted the sentence indication and entered guilty pleas to the three charges. The Crown has offered no evidence on the remaining charges, charges 30 and 32 in the Crown Charge Notice, and I now discharge you on those charges pursuant to s 147 of the Criminal Procedure Act 2011.
[3] I record that I have not requested an updated pre-sentence report. You have waived your right to a pre-sentence report because you have been in custody since the last report was prepared on 13 November 2015.
The facts
[4] The facts that underpin the present charges are contained in a summary of facts prepared for the purpose of the sentence indication hearing. This records that you were charged at the termination of a police operation targeted at the distribution of methamphetamine within the wider Auckland area. You were not an initial target of that investigation, but the police learned of your involvement when they intercepted communications between other persons allegedly involved in that form of enterprise in the Auckland area.
[5] The charge of supplying pseudoephedrine arises out of a series of communications that occurred on 10 April 2015. In the course of these you were contacted and became aware that other persons wanted to acquire ContacNT. ContacNT contains pseudoephedrine and is a sought after precursor substance for the
manufacture of methamphetamine.
1 R v Sun [2017] NZHC 2. (Copy attached).
[6] During the course of the day you met with three other persons at a restaurant in Panmure. You then advised those persons that you could get 20 sets of ContacNT, but that you needed the money first in order to pay for the drug. Arrangements were then made for you to be provided with cash later in the afternoon. You then made arrangements to uplift the ContacNT from an associate and you then delivered it to the persons who had provided you with the money to purchase it. The 20 sets of ContacNT could produce approximately 1.8 kilograms of pseudoephedrine and had a street value of approximately $200,000. It was subsequently used by those to whom you supplied it to manufacture approximately one kilogram of methamphetamine.
[7] The police ultimately terminated the operation on 20 July 2015. On that date they executed search warrants of your home address and a storage unit you had rented in Albany. At your home address the police found 20.6 grams of methamphetamine. They found a further 53.4 grams of that drug in your storage unit. The police also found 1829.7 grams of ephedrine, together with digital scales and methamphetamine pipes, at the storage unit. In addition to the methamphetamine, the police also found the sum of approximately $59,500 in cash as a result of the execution of the search warrants.
Sentencing principles
[8] In any case involving dealing at this level, a deterrent sentence is required. In reality, the only possible sentence in the present case is a sentence of imprisonment. The real issue is the length of the sentence having regard to those imposed in other broadly similar cases and taking into account the fact that you are currently serving another term of imprisonment.
Starting point
[9] Both counsel agree that the lead, or most serious, charges are those involving the Class B drugs pseudoephedrine and ephedrine. Counsel have provided me with a number of cases in which offenders have been sentenced in relation to the possession
and supply of Class B controlled drugs.2
2 R v Aemort DC Auckland CRI-2016-004-1061, 28 June 2016; R v Ha [2014] NZHC 2621; R v
Uele [2014] NZHC 2239; R v Cavanagh [2015] NZHC 2498; Bell v Police [2014] NZHC 3052;
[10] Other cases are not particularly helpful because the sentences imposed often include components for other forms of offending such as possession of different types of drugs. Nevertheless, it is now accepted that the leading authority in relation to Class B drug offending is that of R v Wallace.3 In R v Wang the Court of Appeal confirmed that Wallace remains the leading authority in this area.4
[11] In Wallace the Court of Appeal identified three categories of offending involving Class B drugs.5 The Court of Appeal held that in cases involving “commercial activity on a major scale” the starting point will be in the region of eight years imprisonment and, in very bad cases, up to 14 years imprisonment where repeat offending is involved. The Court held that commercial manufacture or importation on a substantial scale reflecting sophistication and organisation over a lengthy period, although not involving massive quantities of drugs or prolonged dealing, will call for a starting point in the range of five to eight years imprisonment.
For smaller operations that nevertheless involve commercial dealing, starting points of up to five years imprisonment will be appropriate.
[12] I do not consider that your case falls within the top end of the offending identified in Wallace. Although the quantities with which you dealt were large, they were nevertheless not on the kind of scale that would attract a starting point within the most serious category identified in Wallace. Nevertheless, you supplied and were found in possession of significant quantities of ephedrine and pseudoephedrine on two separate occasions. One of these was subsequently used to manufacture a significant quantity of methamphetamine. I consider that the overall seriousness of the Class B offending warrants a starting point of seven and a half years imprisonment.
[13] The guideline judgment of the Court of Appeal in relation to the possession of methamphetamine for supply is R v Fatu.6 In that case the Court identified bands
of offending and suggested starting points for offending within those bands. Your
R v Li [2014] NZHC 2610.
3 R v Wallace [1999] 3 NZLR 159 (CA).
4 R v Wang [2014] NZCA 409.
5 At [30]-[32].
6 R v Fatu [2006] 2 NZLR 72 (CA).
offending would clearly fall within Band 2 identified in Fatu. That band applies to the possession of, or dealing in, between five and 250 grams of methamphetamine. The fact that you were in possession of 74 grams of methamphetamine means that you are not at the bottom end of the scale, but nor are you above the middle.
[14] The starting points for offending within this band will be between three and nine years imprisonment. On its own I consider that the charge of being in possession of methamphetamine for supply would warrant a starting point of five years imprisonment. It was clearly possession of methamphetamine for commercial purposes although the existence of methamphetamine pipes also suggests that some of the methamphetamine may have been for your personal use.
[15] Because I need to add an uplift to the starting point identified for the Class B offending, I need to take into account totality principles. A sentence of 12 and a half years imprisonment for both sets of charges would clearly be manifestly excessive. I therefore propose to apply an uplift of two years imprisonment to reflect the methamphetamine offending. This results in an end starting point of nine and a half years imprisonment.
Aggravating factors
[16] A seriously aggravating factor in the present case is that this offending occurred whilst you were already on bail on serious charges of Class B drug offending.
[17] You were arrested in or about November 2013 after you returned to New Zealand from overseas. When you arrived in New Zealand, the police and Customs Service examined your cellphone and found evidence of drug-related offending on it. Subsequent investigations established you were part of a drug ring that imported approximately six kilograms of pseudoephedrine into New Zealand by way of parcels sent from overseas. You defended the charges, but were found guilty following a trial by jury. The Judge who sentenced you found that your role included that of assisting to organise the receptacles in which the drug was to be imported to New Zealand.
[18] You were on bail on those charges when you committed the present offending. That is a serious issue and warrants discrete recognition. An uplift of
12 months imprisonment would easily be within the available range, but I propose to apply an uplift of just six months to reflect this factor.
[19] This means that I am left with an end sentence of ten years imprisonment before taking into account mitigating factors personal to you.
Mitigating factors
[20] The only mitigating factor that I am prepared to give you credit for is that of your guilty pleas. Although your trial is due to commence in the near future, the Crown accepts that a discount of 25 per cent is appropriate.
[21] I therefore reduce your sentence by two years six months to reflect that factor.
[22] I note the letter of remorse that you have provided me this morning. You have also provided me with certificates of achievement in respect of work you have carried out within the prison environment. I obviously commend those efforts, but I am not prepared to make any separate reduction to reflect them. I note that the Judge who sentenced you in December 2015 on the earlier charges reduced the sentence by six months to take into account personal mitigating factors. I am not prepared to reduce your sentence further to reflect the material that you have provided to me this morning.
Totality principles
[23] Given that you are already serving a sentence of six years imprisonment, I must have regard to totality principles because I intend to impose a cumulative sentence. A cumulative sentence is appropriate because the current charges are different in time, place and circumstance to the charges in respect of which you are now serving a sentence of imprisonment.
[24] I am satisfied that an end sentence of 13 years six months imprisonment would be out of all proportion to the gravity of your overall offending. The issue is to determine the extent to which your existing sentence should be increased to properly reflect your overall culpability. When I stand back and undertake that exercise, I am satisfied that an overall end sentence of ten years imprisonment is appropriate to reflect all of your offending. I am therefore satisfied that cumulative sentences of four years imprisonment on each of the present charges are warranted.
Minimum term of imprisonment
[25] The final issue I need to determine is whether to impose a minimum term of imprisonment. The Court may impose a minimum term of imprisonment in any case involving a sentence of more than two years imprisonment where the usual parole provisions would be insufficient to reflect specified factors.7 These are the need to emphasise principles of deterrence, denunciation, accountability and the protection of the public. I put to one side the issue of protection of the public because I anticipate that you will be deported after serving your sentence.
[26] Nevertheless, the fact that you were prepared to be in possession of, and deal in, significant quantities of three different types of Class A and Class B drugs is a matter that is relevant in the present context. So is the fact that you were prepared to offend again after being released on bail on earlier serious charges.
[27] Under the ordinary parole provisions you would be eligible to apply for release on parole after serving just one year four months of the sentence I am about to impose. I consider that would be manifestly inadequate to reflect the serious nature of your offending and the need to reflect the sentencing principles of deterrence, denunciation and the need to hold you accountable for your offending.
[28] For that reason I propose to impose a minimum term of two and a half years imprisonment on each charge.
7 Sentencing Act 2002, s 86.
Sentence
[29] On each of the charges to which you have pleaded guilty I sentence you to four years imprisonment. Those sentences are to be served concurrently with each other, but cumulatively on the existing sentence of six years imprisonment that you are serving.
[30] In respect of each of the charges on which I am imposing sentence today, I
order that you are to serve a minimum term of imprisonment of two years six months.
Lang J
Solicitors:
Crown Solicitor, Auckland
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT
2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-004-7734 [2017] NZHC 2
THE QUEEN
v
JIA SUN
Hearing: 10 January 2017 Appearances:
F Culliney for Crown
S Bonnar QC for DefendantJudgment:
10 January 2017
SENTENCE INDICATION OF LANG J
[1] Mr Sun is due to stand trial in this Court next month on several drug-related charges. He now seeks a sentence indication on charges of supplying the Class B controlled drug pseudoephedrine, being in possession of methamphetamine for supply and being in possession of ephedrine and pseudoephedrine for supply.
[2] At the conclusion of submissions this morning, I provided counsel with my sentence indication and I now record this in writing.
Starting point
[3] I will not set out the full facts of the offending, because these will appear in my sentencing remarks. I have adopted a starting point in respect of both charges relating to the supply and possession of Class B controlled drugs of seven and a half years imprisonment. Given that Mr Sun was found in possession of 74 grams of methamphetamine, a starting point of around five years imprisonment would ordinarily be appropriate. Having regard to totality principles, I would add an uplift of two years to reflect that charge. This leads to an end starting point of nine and a half years imprisonment.
Uplift
[4] All of these offences were committed whilst Mr Sun was on bail on other serious drugs charges. He is currently serving a sentence of six years imprisonment on those charges.
[5] An uplift needs to be applied to reflect this fact. I have indicated an uplift of six months to reflect the fact that the offending occurred whilst on bail. This leads to an end sentence of ten years imprisonment before taking into account mitigating factors.
Mitigating factors
[6] The only mitigating factor in the present case would be that of guilty pleas. The Crown accepts that a discount of 25 per cent is appropriate, notwithstanding the fact that the pleas come relatively close to trial. This means that a discount of two
years six months imprisonment is appropriate, producing an end sentence of seven years six months imprisonment.
Totality principles
[7] Given the fact that Mr Sun is already serving a sentence of six years imprisonment, it is necessary to have regard to totality principles. A cumulative sentence of seven years six months imprisonment would clearly be manifestly excessive. Having regard to totality principles, I consider that a cumulative sentence of four years imprisonment would be appropriate to reflect Mr Sun’s overall culpability on all charges. This would produce a notional single end sentence of ten years imprisonment.
[8] I consider a cumulative sentence is appropriate because the present charges arose out of activities that were different in time, place and circumstance from the offending that resulted in the sentence that Mr Sun is currently serving.
Minimum term of imprisonment
[9] The only remaining issue is that of minimum term of imprisonment. In the ordinary course of events Mr Sun would be eligible for parole on the present charges after serving just one year four months. I consider that would be manifestly inadequate to reflect the principles set out in s 86 of the Sentencing Act 2002. For that reason I would impose a minimum term of imprisonment of two and a half years in respect of each charge.
Sentence indication
[10] The sentence indicated is therefore a cumulative sentence of four years imprisonment on each of the charges. A minimum term of imprisonment of two and a half years would be imposed in respect of each charge. Those sentences would be served concurrently with each other, but cumulatively on the sentence of six years imprisonment that Mr Sun is currently serving.
Addendum
[11] Following delivery of my sentence indication, Mr Sun was arraigned on charges 6, 29 and 31 as amended in the current form of the Crown Charge Notice. He entered guilty pleas to each of these charges. I now enter convictions on those charges.
[12] I remand Mr Sun in custody to appear in this Court for sentence on Friday
13 January 2017 at 9.15 am. He will be sentenced on the basis of the pre-sentence report that was prepared in anticipation of his sentencing on 10 December 2015. I record that Mr Sun has waived his right to obtain an updated pre-sentence report. That is not surprising given the fact that he has been in custody since the date upon which the earlier report was prepared.
[13] Mr Sun has not yet entered pleas to charges 30 and 32 in the amended Crown Charge Notice. Provided Mr Sun maintains his guilty pleas, it is anticipated that the Crown will offer no evidence on those charges and he will be discharged on them
pursuant to s 147 of the Criminal Procedure Act 2011.
Lang J
Solicitors:
Crown Solicitor, Auckland
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