R v Tsai HC Auckland CRI 2007-004-22697

[2010] NZHC 1078

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-004-022697

THE QUEEN

v

KUO LIANG TSAI

Hearing:         1 July 2010

Counsel:         B D Tantrum for Crown

R M Mansfield & J Cheng for Prisoner

Sentence:       1 July 2010

SENTENCE OF KEANE J

Solicitors:

Crown Solicitor, Auckland

R V KUO LIANG TSAI HC AK CRI 2007-004-022697 [1 July 2010]

[1]      Tsai Kuo Liang, you appear for sentence following trial for four supplies of the class A controlled drug methamphetamine between 19 October – 7 December

2006.  In each instance supply was to C, a wholesale dealer in his own right, who has admitted to his part and been sentenced for it.

[2]      The   four   supplies   the   jury   found   established   were   on   19   October,

14 November, 2 December and 7 December.   There is some issue as to the exact quantity.

[3]      The Crown contends the aggregate could have been 500 grams but concedes that one supply, perhaps the first, may have been a top up for a short supply made by Mr Luo.  Your counsel contends that at most that would have been three grams. The Crown,  responsibly,  cannot  elevate  that  higher.  The  aggregate  your  counsel contends, and the Crown does not seek to dispute, may have been 395 grams.

[4]      You were arrested on 19 December when your home was searched.  At your home $3,040.00 was found in your wardrobe and you accounted for that as savings that you and your partner had made. In the boot of your car, in the garage, behind the spare wheel, was $57,000, you did not attempt to account for.  The Crown seeks an order to forfeit both sums. You oppose such an order.

Pre-sentence report

[5]      Your pre-sentence report says that you are aged 28 years. You were born in Taiwan and have lived in New Zealand since July 1997. You completed your schooling here. You have been married for a little over a year and you have a four and a half month old daughter.

[6]      After you left school you took a year off and then began a commerce degree at Auckland University, studying computer science. You then transferred to the Auckland University of Technology to study sports and recreation. You are a qualified personal trainer and gym instructor.

[7]      You did not discuss the offences for which you are for sentence with your assessor.  You were reluctant to do so, you said, without legal advice.  That meant that you could not be assessed as to your needs nor as to your willingness to change. The sentence recommended is imprisonment.  That was inevitable given the nature of your offending.

Letters

[8]      I have two letters, the first of which is from your second youngest brother who has lived in New Zealand with you since 1997 and with whom you share a close relationship.

[9]      He explains that your wife and child are living in his house and that she is highly distressed by the fact that you are in custody and face imprisonment.   The care of your child is complicated. He asks me to be alive to these difficulties. Also to understand how atypical this offending is.

[10]     Your wife, in her letter, confirms what he says. You devote yourself to your family.  Your only interests are basketball and working out at the gym.  You care very much for your younger brothers.  Your relationship with your young daughter, she says, is of the first importance. That you are now to be in custody is a hardship for everybody.

Purposes and principles

[11]     I must hold you accountable for your offences, promote in you a sense of responsibility, denounce these offences, and impose a sentence that is deterrent. I must balance the contrasting principles that apply.  The need to impose a sentence which reflects the gravity of your offending, and is consistent with like cases against those calling for the least restrictive outcome and the need to take into account anything that would make the sentence disproportionately severe.   I need to take account of you within the context of your family.

[12]     That said, as I have said to others appearing today, drug offending normally precludes the positive purposes and principles of sentencing applying. But personal circumstances are not to be ignored completely either.

Crown submissions

[13]     The Crown submits that your offending lies within band 3 R v Fatu,[1] which, for supplies between 250 and 500 grams, attracts a starting point of between three and 11 years imprisonment.  Taking into account Mr Tan's sentence especially, the Crown invites a starting point in the range nine - seven years.

[1] R v Fatu [2006] 2 NZLR 72

[14]     The Crown urges me to take a starting point at the higher end of that range but accepts it is open to me to opt for the lower end. Apart from the quantity of drugs in issue your role was as courier. And just as it can be aggravating that an actor is at the top of the distribution hierarchy, it can be mitigating that he or she is towards the bottom.

[15]     The  Crown  nevertheless  pursues  the  application  for  forfeiture  of  all  the money found at your address on 19 December.   That money, the Crown says, or more especially that in your car cannot be innocently explained. You explained as savings, that found in your bedroom, $3,040. You also then said you were not in regular work. You could not begin to explain that found in your car. That it was concealed and you did not speak about it, the Crown says, means it must be the result of, or to be used for, drug offending.

[16]     The Crown does not say that the sum in the car came to you from the four offences the subject of sentence. You would not have received a commission of that order. The Crown does say that C may have paid that sum to Mr Luo for the deliveries made and that Mr Luo might have asked you to pass it to Mr Voong. If that is too speculative, the Crown stresses rather the fact that while your last offence was on 7 December, you and Mr Voong had a discussion on 14 December consistent

with further methamphetamine trafficking. The Crown accepts, however, that this conversation may have concerned the quality of deliveries made earlier.

[17]    Be that as it may, the Crown rests its application for forfeiture on that combination of circumstances, relying on s 32(3) of the Misuse of Drugs Act, and categorising the money as held to facilitate the commission of an offence against the Act, if not a sum held as the fruit of one.

Defence submissions

[18]     Your counsel submits to me that you are to be sentenced, as the Crown concedes, as a courier.  Moreover, he submits, you were not a settled member of Mr Voong’s distribution network. You became involved with Mr Voong quite conventionally.  You  began  to  work  for  him.  Then,  your  counsel  submits,  you stepped too far.

[19]     Your counsel accepts that your offending lies within band 3 R v Fatu but submits that the starting point for your offences ought to be seven years imprisonment, the lower figure the Crown accepts is open as a matter of discretion.

[20]     Your pre-sentence report your counsel says makes impressive reading.  You have, this offending apart, applied yourself successfully to study and work and you are strongly committed to your family. Your offending marks a highly unfortunate departure. You are to be sentenced as a first offender who has made a tragic miscalculation.

[21]     On a sentence of imprisonment, your counsel submits, you will suffer this hardship.  You have lived a highly athletic life.  You have governed your food and trained assiduously.  In the time you have spent in custody since trial, you have lost your fitness. He does not suggest that this hardship will be disproportionate.

[22]     Your counsel asks me to take into account the fact that you do express remorse and that you have not, in the considerable time that has passed since you were apprehended, offended. The contrary is evident, he submits, from your pre-

sentence report. He asks me, distinctly, to recognise the delay until trial which was three years. He opposes any order for forfeiture.

[23]     Your counsel points out that C was explicit that he did not pay you anything. He paid whatever he owed to Mr Luo.  Whatever you got, your counsel says, came to you by way of commission from Mr Luo or Mr Voong. To suppose Mr Luo gave you the proceeds of those offences and asked you to pass them to Mr Voong is speculative.

[24]     Further your counsel says there is no evidence that after 7 December 2006 you and Mr Voong were intent on any further offending to which the money seized during the search must relate.  The conversation on which the Crown relies does not begin to go that distance.  He invites me to decline the order.

Conclusions

[25]     In sentencing you I take as my starting point for these four offences seven years imprisonment. That is consistent with your role established at trial.  You acted as a courier.  You acted under direction and received no money from the recipient yourself.  There is no evidence that you were alive to the fact that what you were carrying was methamphetamine in the quantities C spoke of. What reward you obtained was never the subject of evidence.

[26]     The delay until trial, three years, was considerable.   For the first perhaps

12 months the terms of your bail included curfews as well as reporting terms and would have been restrictive. Those terms were relaxed after the first year. But you are, I consider, entitled to some recognition for the way in which they evolved.  You will have a discount, for that reason, of nine months.

[27]     You will have, as well, a discount to reflect the fact that over the three years your life has remained stable and law abiding.  I am also conscious that your wife and child are highly dependent on you.  For that mix of considerations you will have a discount of nine months.  For each of these offences concurrently I sentence you to five years, six months imprisonment.

[28]     There remains the issue of forfeiture.   To forfeit the money found in the house and the car I would need to be satisfied that each was attributable either to this offending or was to facilitate further offending.  There has to be high suspicion as to that in the car. But that is not enough. I must be satisfied, perhaps to the balance of probabilities, that you held those sums for one reason or the other. I cannot be.

[29]     The evidence at trial was inconsistent with you receiving anything for the four deliveries from C or from any other source, certainly of this order. And though you might have spoken to Mr Voong about further offending, that was so general as not to admit any safe inference.  As to both sums I decline the order for forfeiture.

P.J. Keane  J