R v Voong HC Auckland CRI 2009-004-22697

[2010] NZHC 1079

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-004-022697

THE QUEEN

v

TAC KIN VOONG

Hearing:         1 July 2010

Appearances: B D Tantrum for Crown

H D M Lawry for Prisoner

Sentence:       1 July 2010

SENTENCE OF KEANE J

Solicitors:

Crown Solicitor, Auckland

R V TAC KIN VOONG HC AK CRI 2007-004-022697 [1 July 2010]

[1]      Voong Tac Kin, you appear for sentence following trial for 12 offences between 26 July - 2 December 2006, eight offences of supplying the class A controlled  drug  methamphetamine,  two  of  conspiracy  to  supply  and  two  of possession for supply. On four counts the jury acquitted you.

[2]      The Crown's case at trial was that you were at the heart of a group, a number of whom are for sentence today, involved in distributing at a wholesale level methamphetamine in ounce lots throughout the greater Auckland area.

[3]      The Crown's case was that you were the group's directing mind and that you controlled the network from the Sky City Casino, that you had access to significant quantities of methamphetamine, and that in distributing it you acted principally through your co-accused Mr Luo but also through others like Mr Tan and Mr Tsai.

[4]      Mr Luo, the Crown's case was, your principal lieutenant, took delivery of methamphetamine to which you had access. He distributed it, himself or through others. Those who purchased from him, the Crown contended, purchased in ounce quantities  and  distributed  in  turn  what  they  purchased,  quite  independently,  to dealers below them who dealt closer to street level.

[5]      Distribution was, the Crown's case was, well synchronised and rapid. A transaction could be completed as quickly as within an hour. In that way you and your group minimised risk and achieved a high and quick turnover face to face.

[6]      The Crown's case against you, because you stood at a deliberate remove from the supplies actually made and remained mostly at the Casino, or somewhere remote from the action, depended firstly on intercepted telephone conversations between yourself, Mr Luo and sometimes others. One of the principal issues at your trial was whether  those  conversations  did  concern  the  supplies  of  methamphetamine  the Crown contended for in nature and in quantity.

[7]       A key to the conversations was supplied by the Crown's witness C. C was an intermediate dealer who had already been sentenced for, on his own admission, possessing methamphetamine he obtained from Mr Luo and supplying it to others.

[8]      C  was  sentenced  from  a  starting  point  of  15  years  on  the  basis  that  he purchased 37 ounces of methamphetamine from Mr Luo; that is slightly in excess of one kilogram. His evidence was that when they spoke, in intercepted conversations, of 'oranges' they were talking of ounces of methamphetamine. Later, he said, that code changed to a monetary code in which they spoke about lending transactions. But, he said, he purchased for on-sale always at the ounce level.

[9]      A second prime issue at trial was whether C was a truthful and reliable witness or whether he had attributed to you and those accused with you parts that you had never played and that he was protecting his own suppliers.

[10]     The jury acquitted you on four counts that relied principally on C's evidence and you rely on that. The Crown relies on the fact that, in a more general sense, the jury  must  have  accepted  C  as  both  truthful  and  reliable  in  a  number  of  other instances where it found you, and others, guilty of the offences alleged.

[11]     Finally, the Crown relied on 10,000 tablets discovered on a covert search on

9 October 2006 of Mr Luo's apartment. They contained, as well as class C and B drugs, methamphetamine. Also found was 27.3 grams of pure methamphetamine and a tick book. You too were found guilty of possession, though you had never been to the apartment and contested ever directing Mr Luo.

[12]     Over the 19 weeks the subject of the interception operation, the Crown's case against you was, you supplied 900 grams of methamphetamine and 10,000 tablets containing methamphetamine. You conspired to supply some 280 grams of methamphetamine, You possessed for supply 168 grams of methamphetamine and also 10,000 tablets containing methamphetamine. In all 1.3 kilograms of methamphetamine.

Pre-sentence report

[13]     You are, your pre-sentence report says, aged 47. You arrived in New Zealand in 1993 as a refugee. Between 2000 - 2005 you lived in Australia. You returned to

New Zealand, you said, because you wished to be able to assist relatives to move to

New Zealand.

[14]     Within two years of arriving in New Zealand, your assessor says, you became a self employed baker. You sold that business after 12 months. Since then, you told your assessor, you have been a painter and plasterer both here and in Australia. You have, however, of course, been in custody on remand for the past three years.

[15]     In the years before your remand you were in a relationship with one of your co-accused, Ms Yeh. You and she have two sons aged 13 and 10 years, with whom you have had little contact. And, as became evident at your trial, you were not living with your partner or children when you were offending. You were in another relationship, however temporary.

[16]     You are in a normal state of health, your report says, apart from a level of hypertension and arthritis and neither your physical nor your mental health is an issue on sentence. You did, however, your assessor says, show real distress about the fate of your children.

[17]     You have, your report says, four previous convictions of a minor order, three wilful trespass convictions in the late 1990s and one careless driving. The trespass convictions concerned entries into the Sky City Casino after you had been briefly banned. Clearly that had ceased by the time you began this present offending. By then you were an habitué of the Casino in the VIP lounge.

[18]     You have not had access to drugs or alcohol over the past three years, clearly enough, as your report says, and you maintain that before you were apprehended you used alcohol only occasionally and smoked methamphetamine on a sporadic social basis. That was not an issue in your offending, by all accounts.

[19]     You told your assessor that you have no gang affiliations and you continue to maintain that you did not commit any of the offences for which you presently stand convicted. As a result your assessor did not discuss with you the narrative of facts on

which the Crown relied at trial. Your motivation to change could not, therefore, be assessed.

[20]     Set against your limited previous criminal history, your report assesses your risk of re-offending to be low. But that, of course, says nothing about the risk inherent in the scale and persistence of your present offending, or its seriousness. All that said, your report recommends a sentence of imprisonment.

Purposes and principles

[21]     I  must  hold  you  accountable  on  sentence  for  the  harm  you  have  done, promote in you a sense of responsibility, denounce your conduct, deter you and others from acting in this way, protect the community and provide for the interests of any conceivable victim. This was far from victimless offending. I must also, so far as it is possible, assist you in your rehabilitation and reintegration.

[22]     I must have regard to the following sentencing principles: the gravity of your offending, the need to be consistent in sentence with other cases, the need to impose a sentence near to the maximum, should that be warranted. Equally, I must take into account the contrasting principles: the need to adopt the least restrictive outcome appropriate, the need to take account of anything that would make any otherwise proper sentence disproportionately severe, and the need to recognise you in the context of your family.

[23]    Where drug offending is as serious as yours is, I have to say, personal circumstances and the more positive purposes and principles of sentencing normally have little part to play. Denunciation and deterrence are what is principally called for.

Crown submissions

[24]     The   Crown   takes   as   your   lead   offences   the   eight   supplies   of methamphetamine and the two possession for supply offences, each of which attracts

a maximum sentence of life imprisonment. Given your role and the scale of trafficking attributable to you, the Crown says, the starting point proper is 17 - 18 years imprisonment.

[25]     These offences, in aggregate, the Crown contends, lie within band four R v Fatu,[1]   which  for  very  large  commercial  quantities  (500  grams  or  more)  attract starting points in the range ten years - life imprisonment.

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

[26]     Such a starting point is consistent also, the Crown contends, with that taken by Lang J, when sentencing C[2], the intermediate dealer who gave evidence at your trial. It accords also with the sentence imposed on a dealer, as the Crown says at the same level as you and with whom you dealt yourself, Zhou Ri Tong.[3]  There 3.768 kilograms of methamphetamine were attributable to his offending. Harrison J took a starting point of 20 years imprisonment.

[2] R v C HC Auckland CRI 2006-004-25638, 17 August 2007.

[3] R v Ri Tong Zhou HC Auckland CRI 2006-019-8458, 10 March 2009.

[27]     Like Mr Zhou, the Crown contends, you were the prime mover. You initiated and co-ordinated the offending and that, as was said in Fatu,[4]  calls for distinct recognition. Primary offenders can expect starting points for sentence towards the high end of the relevant band. Moreover, your remaining offending, the conspiracies, were potentially no less serious. On that basis the Crown contends for an uplift to 20 years imprisonment.

[4] R v Fatu [2006] 2 NZLR 72 at [31].

[28]     The Crown contends that there is nothing to mitigate your offending and that

20 years should be your end sentence. It submits also that a 50 per cent minimum term of imprisonment is called for. Release after one-third of your sentence, it contends, would be insufficient to denounce your offending, to punish you and to be deterrent. Methamphetamine trafficking is now so entrenched and its effects on society so widespread and pernicious that a strong deterrent sentence is called for.

Defence submissions

[29]     The  scale  of  offending  attributed  to  you  by  the  Crown,  your  counsel contends, is inconsistent with the evidence and with the jury's verdict.

[30]     Essential to the Crown's case, your counsel contends, was the evidence of C. However, he submits, the jury did not accept C's evidence completely as it related to you. It accepted that evidence perhaps as to four counts, but not as to four others. Without that evidence, your counsel says, the Crown was left with the telephone conversations and the possession offence. It had no independent evidence as to the source of the drugs you were said to have been trafficking. Nor was any found in your possession.

[31]     On the counts for which you are for sentence, your counsel submits, either you  played  no  part  or  the  jury  cannot  be  deemed  to  have  accepted  that  your offending was on the scale that C spoke of. The only safe inference is that those offences concerned not ounces, but perhaps even points. The possession for supply count cannot, he submits, lead to a contrary inference. On the jury's verdict you were, at best, constructively in possession of what was found there.

[32]     Further, your counsel submits, there was evidence to show that aspects of the Crown's case could be explained innocently. You were a successful gambler and that principally is what the evidence shows you were about at the Casino.

[33]     Consequently, your counsel submits, you are not to be sentenced on the same basis as offenders like Mr Zhou. The starting point reflecting the totality of your offending ought not to exceed six years. He argues against a minimum term of imprisonment, more especially as you have been in custody for nearly four years already, and you are a refugee with little English and minimal contacts in New Zealand. He invokes the disproportionate difficulties of sentence for you.

[34]     An issue did arise, on Mr Lawry's submission, as to whether the fact that it had taken three years for you to come to trial could, distinctly, be a source of mitigation. However, that principle applies, as he accepts, where the time to trial will

not be reflected in the sentence served, as is the case for those remanded on bail. That is not your position.

Conclusions

[35]     In sentencing you I start from the premise that, as the Crown advanced at your trial, and as I believe on the evidence the jury accepted, you were the prime mover in this distribution. The conversations between you and Mr Luo are explicable on no other basis. He looked to you for instructions and he accounted to you. I am satisfied on the evidence that whenever he offended, it was at your direction and for your profit.

[36]     The scale on which you offended inevitably has had to have been established by inference. It was a deliberate feature of your part in this hierarchy that you stayed well clear of the action and the risk. That made it more difficult for the jury to assess your part than it would have been for the jury to assess the part of those more directly implicated, like Mr Luo and others closer to the street.

[37]     That, I consider, explains the four instances in which you were acquitted by the jury. Those four acquittals cannot raise any doubt about your part or the scale of your offending. The jury's verdict, I consider, is explicable only on the basis that it accepted the Crown's case in its totality and at the heart of that was the explanatory role played by C.

[38]     You are, I consider, to be sentenced analogously with Mr Zhou, as the Crown contends, to this extent. The role he played in his distribution network is the identical role you played in yours. There is, however, this difference. He admitted to being instrumental  in  the  distribution  of  a  considerably  larger  quantity  of methamphetamine, 3.768 kilograms. The amount that you were instrumental in trafficking was significant. It was a large commercial quantity, 1.3 kilograms. But manifestly it was not of the same order.

[39]     I take, therefore, a starting point for you, recognising that taken for C and that taken for Mr Zhou, distinguishing you from both, from C because you were two

levels higher in the hierarchy, from Mr Zhou because you traded in less, of 18 years imprisonment. That comprehends every factor on which the Crown relies.

[40]     There is no factor mitigating your offending and consequently that starting point for your lead offence, 18 years imprisonment, must be the sentence I impose on you for those offences. The conspiracy offences attract a lesser maximum and a concurrent sentence inevitably. For those offences it will be sufficient if I sentence you concurrently to seven years imprisonment. Your effective sentence remains 18 years imprisonment.

[41]     I must, finally, impose on you a minimum term of imprisonment. The Crown rightly says that eligibility for release after one-third of your sentence served would be insufficient to denounce your offending, to punish you for it and to deter. I am conscious of the difficulty your sentence will have for you. Your English is slight. You do not have much family in New Zealand. The fact remains that you have been here since 1993. This is your home. You are accountable here for your offending and the harm it causes. I impose a minimum term of one half.

[42]     There are issues of forfeiture. They involve Ms Yeh. They will be adjourned to a date to be fixed at a call-over on 4 August 2010.

P.J. Keane  J