R v Wan
[2017] NZHC 2376
•29 September 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2016-004-7800 [2017] NZHC 2376
THE QUEEN
v
HO HIN (GABRIEL) WAN
Hearing: 29 September 2017 Counsel:
T Hu for Crown
JG Krebs for defendantSentenced:
29 September 2017
SENTENCING NOTES OF FITZGERALD J
Solicitors: Meredith Connell, Auckland
Gifford Devine, Hastings
R v Wan [2017] NZHC 2376 [29 September 2017]
Background
[1] Mr Wan, you appear for sentence before me today having been found guilty by a jury of importing a class A controlled drug, methamphetamine. And, as you will know, the maximum penalty for that is life imprisonment.
Facts
[2] I will now set out the background facts to your offending. And these facts are of course well known to you and to the lawyers hear today, but it is important that others who are here today and who might read this sentencing are aware of the basis upon which I am sentencing you today.
[3] Your conviction relates to a package intercepted by New Zealand Customs officials on 27 July 2016. It was sent from Hong Kong by air, and was labelled as containing kitchen spatulas. But concealed amongst the spatulas, Customs found
19.1 kilograms of methamphetamine. And that is a very large amount of methamphetamine in terms of importations into New Zealand. Your role in the importation centres on certain things you did, at the direction of others in Hong Kong, to receive that package into New Zealand. And your role in a drug importation of this kind I accept is often referred to as a “catcher”.
[4] You said you came to New Zealand at the suggestion of a friend in Hong Kong, who introduced to you some men, who you referred to as “the company”. And you said that it was agreed that they would pay for you to travel to New Zealand in order to receive goods into New Zealand on their behalf. You did this expecting to get paid for doing so, as you said in your interview with Customs officials that you agreed to do this so that you could earn some money for later study in Taiwan.
[5] You said that you had asked at the outset whether the goods would be drugs, but were told they would not be, but that “the company” did not tell you what the goods would be. Your lawyer has submitted in his written submissions that you thought the goods would be sports shoes, but in your interview with Customs officials, you said you only found this out the night before you were arrested, when you asked your friend back in Hong Kong what the package was to contain.
[6] You arrived at Auckland Airport from Hong Kong on 8 May 2016. On entering this country, you carefully and deliberately lied to Customs officials when questioned about your reasons for visiting New Zealand. You said you were here for a short holiday, had a return ticket for eight days later (which you plainly did not intend to use), and you told the officials of made-up plans you had to carry out a number of tourist activities. You also had printed out material of tourist activities in this country. There is no doubt in my view that these were carefully pre-prepared answers to questions you expected to be asked about why you were coming to New Zealand.
[7] Once in New Zealand, you immediately set about looking for accommodation for yourself, as well as looking for an office at which you could receive the package to be sent here to New Zealand by “the company”. There is no doubt that you did this work at the instruction of the four unknown individuals belonging to “the company”. Throughout your time in New Zealand, you communicated with these individuals using various chat apps. The nature and location of the office was clearly important to them, including that it was not on the ground floor. You understood the need for privacy, asking one of the men, known as “Power King”, in one message whether, if there was a lift, there might be CCTV and whether would that be ok. In another message, you noted that an office that you thought was suitable had lift access requiring a card and that the inside could not be seen from the outside of the building.
[8] You also had discussions with one of the men in Hong Kong, referred to as High Speed, in which he made it clear that they would like you to move office once every month or so. In response to your query as to whether leases that short could be obtained, you were told that like your own accommodation, the landlord would not be told that the office or room was only intended for about a month, and that it would be “safer” that way.
[9] Once you had located and organised a lease in respect of an office in central Auckland, you took a number of other steps to prepare for the package’s arrival. You had communications with Pengelly’s Transport, the import agent, about the package, including, in particular completing an application form necessary to get a “unique
user identification” or “UUI” code; and made arrangements for payments of rent for the Auckland CBD office. In this context, when it was thought that there might be difficulties in completing the necessary paperwork for you to receive the package, it was discussed between you and those in Hong Kong whether, for example, a company ought to be incorporated; or whether you ought to enrol as a student to get a student visa which might assist with the importation.
[10] The evidence also demonstrated that in carrying out a number of these tasks, you used names other than your real name, or were aware that “the company” had used a name other than your real name. You said in your interview with Customs that “the company” had told you that when Pengelly’s contacted you about the package, they would have been given your name as “Ben”. You used what you referred to as a “nickname” for yourself, “Jeremy”, when dealing with the landlord at the Kitchener Street office. You said in your interview with Customs that the company had told you not to use your true personal details.
[11] Finally, in the lead up to the package being delivered, you bought a pair of rubber gloves, which “the company” had told you may need to use when dismantling the package. The messages also demonstrate that you asked the men in Hong Kong a number of times when “the work would begin” (as you wanted to be paid), and would you need to buy a suitcase. I accept, however, that there is no evidence of precisely what you were intending to do, if anything, with the package after it had arrived (beyond opening it); for example whether you were to have any role in distributing the drugs.
[12] The consignment was sent from Hong Kong on 9 July and was intercepted by New Zealand customs on 27 July 2016, at which point the concealed methamphetamine was discovered.
[13] Your position throughout has been that you did not know the package would contain drugs. You maintained that position during your trial. The Crown’s case against you was that you either knew, or were reckless to, the fact the package contained controlled drugs (whether or not those drugs would be methamphetamine).
The fact that the jury found you guilty of the charge of importing methamphetamine shows that they did not believe your version of events, but preferred the Crown’s.
[14] As I have said earlier, I heard and saw all of the evidence at your trial. At the conclusion of the evidence, I formed the very clear view, and was satisfied beyond reasonable doubt, that you knew the imported package would contain controlled drugs. The facts I have briefly outlined above are the key reasons for my conclusions, but obviously the evidence as a whole must be taken into account, and it is on that basis that I reached that view. And, as I indicated to the lawyers earlier, that is basis upon which I will be sentencing you today.
Approach to sentencing
[15] In sentencing you today, I will first adopt what is called a “starting point” based on the seriousness of your offending. I will then adjust this to reflect your personal circumstances, before considering whether it is necessary to impose a minimum period of imprisonment.
[16] Overall, the end sentence imposed will denounce your conduct and deter others from importing methamphetamine into New Zealand.1 Methamphetamine is a particularly harmful drug that causes devastation to the lives of many people in New Zealand. It requires a serious sentencing response. I also keep in mind, however, that I am required to impose the least restrictive outcome appropriate in all of the circumstances.2
Starting point
[17] I turn now to consider the appropriate starting point for your offending. Having imported 19.1 kilograms of methamphetamine into New Zealand and as Mr Krebs quite rightly acknowledges, your offending falls easily above what is referred to as the “band-four” threshold from the Court of Appeal’s guideline
judgment, R v Fatu.3
1 Sentencing Act 2002, s 7(1)(e) and (f).
2 Sentencing Act, s 8(g).
3 R v Fatu [2006] 2 NZLR 72 (CA).
[18] Band four involves in cases involving very large commercial quantities of methamphetamine, that being 500 grams or more of the drug. The Court of Appeal said importation offences within band four should attract a starting point of 12 years’ to life imprisonment. And when selecting a starting point within this band, I must take into account both the quantity of the methamphetamine and the role you played
in the importation.4
[19] The Crown submits your offending was premeditated, sophisticated, and that you played a “relatively significant” role in the importation operation. On that account, and in reliance on a number of previous cases in which the offending is said to be similar to yours, the Crown suggests that a starting point of 20 years’ imprisonment is appropriate.5
[20] Mr Krebs, however, submits that given your lower level role in this particular importation, and your state of knowledge, a starting point of nearer 12 to 14 years would be more appropriate. This was, however, predicated on the basis that you were only reckless as to the package containing drugs, rather than you knew that it did. As I noted earlier, I am satisfied that you knew that the package would contain controlled drugs.
[21] I consider the following factors are also relevant to your offending:
(a) Your offending involved a very significant quantity of methamphetamine. At trial, we heard that 19.1 kilograms of the drug may be worth at least NZ$4 million. And as I have already indicated, methamphetamine in this quantity would cause wide and serious harm to many New Zealanders.
(b)Your offending was premeditated. From the moment you arrived in this country, and over the following weeks, you took a number of
deliberate and purposeful steps to facilitate the arrival of the package.
4 At [36].
5 R v Pai [2015] NZHC 2345; R v Graaf [2007] NZCA 43; R v Yen [2016] NZHC 571; R v Sze
[2016] NZHC 1703; R v Chin [2009] NZCA 445.
(c) You came to New Zealand and to assist organising the importation driven by the prospect of your own personal gain. Having said that however, it is not clear how much money you expected to earn, and I accept your counsel’s submission that there is nothing in the evidence to suggest that it would be a particularly significant sum.
(d)As to your role in the drug ring, I do not consider you to have played a very significant part. It is clear you were not the mastermind, prime mover, or the controller of the operation. I also do not agree with the Crown’s categorisation of you as “the middle man”. Although the steps you took to facilitate the importation were pivotal to its success, I consider that you were nearer the bottom of the hierarchy. In one sense, every person involved in an importation such as this has a “pivotal” or “critical” role (in that all roles are required in order for the importation to be a success). But the courts will nevertheless distinguish between the respective culpability of the roles involved.
(e) I accept the evidence at trial indicates that you were very much acting under the instruction and direction of the four other “company members”. Nothing indicates you were involved in planning what would occur, or that you were privy to the finer operational details. Moreover, while I have mentioned earlier the references to you asking about buying a suitcase, the evidence did not confirm what role you might have and in terms of any ongoing involvement with the drugs once the consignment had arrived and had been opened. On the other hand, I do not accept that you were a mere “robot”, acting on remote control from those in Hong Kong as your counsel suggests. The evidence demonstrates that you played a role that is commonly seen in drug importations of this kind, namely as a “catcher”, taking steps to organise and receive the package when it arrives in New Zealand. This is generally considered to be a more culpable role than that of a
mere “courier” or “mule”.6
6 See, for example, the Court of Appeal’s categorisation of the roles in R v Nguyen [2009] NZCA
239 at [25].
(f) As to the level of sophistication behind your offending, I only accept that it was sophisticated to the extent that you carried out the well- developed plans and complex instructions of the people instructing you. While the wider drug ring was certainly sophisticated, your own role within it was not particularly so. I therefore do not consider this factor to be particularly aggravating in relation to your culpability.
[22] I have drawn some guidance in setting a starting point from other cases, including those referred to by the Crown, though each case must be considered on its own facts, taking into account the amount of drugs involved and the defendant’s particular role. For example, in one case, where the amount imported was only
4.3 kilograms, but the defendant had, in my view, a more significant role in the operation than yours, a starting point of 18 years was adopted.7 In another case, which involved a greater amount of methamphetamine, 40 kilograms, a starting point of 21 years was adopted; though again I am satisfied that in that case, the defendant played a somewhat greater role than you.8
[23] Similarly, in another case, where again 40 kilograms was involved, a starting point of 22 years was adopted.9 And finally, in a case where 22.6 kilograms of methamphetamine was imported, starting points in respect of both defendants of
18 years were adopted, and their roles in my view were not dissimilar to yours.10
[24] Given the aggravating factors to your offending that I have referred to earlier, and in light of the cases referred to me by counsel and others that I have reviewed, I am of the view that a starting point of 17 years and six months’ imprisonment is appropriate.
Adjusting for personal factors
[25] Mr Wan, I will now consider whether any adjustments are appropriate to this starting point to recognise your personal circumstances. While the courts have often
said that the very serious nature of methamphetamine limits the scope of such
7 O’Connor v R [2016] NZCA 414.
8 R v Sze [2016] NZHC 1703.
9 R v Yuen [2016] NZHC 571.
10 R v Pai [2015] NZHC 2345.
adjustments,11 it has been affirmed that they nevertheless can be made in appropriate circumstances.12 In this context, I have also read and taken into account the references that have been provided on your behalf, the very eloquent letter from your parents, as well as your own letter to the Court.
[26] You are a 24-year-old, Hong Kong Chinese national. You have spent your life in Hong Kong, where you grew up with your parents, as an only child. You have no real support in New Zealand, although your parents remain supportive of you, having come to New Zealand to see your trial. You have no prior convictions, and nothing indicates that you have had any prior involvement with drugs or drug offending.
[27] Your pre-sentence report says that you made “some really bad decisions” leading up to the offending, and that you said you are remorseful. Unfortunately, however, you continue to deny your offending. Put in that context, your expressions of remorse appear to be expressions of regret at being caught, rather than demonstrating real insight into your offending and the potential harm it has to cause. I do not consider you are entitled to any discount for specifically for remorse.
[28] That said, some recognition of your personal circumstances is warranted. You are a young man, and your poor decision making (indicated by your offending) has hallmarks of youthful naivety. Before you came to New Zealand, you were also of good character. You had an unblemished record, regular employment, and you avoided the use of drugs or the excessive consumption of alcohol. Lastly, your English is limited and you will have to serve a lengthy prison sentence away from your family, in an environment that is very foreign to you. This is a factor that the
courts have recognised in similar cases.13
[29] As I have said earlier, personal mitigating factors count for less in serious drug offending than other offending. A modest discount only can be made. Taking
into account all of the personal mitigating factors that I have just mentioned, I reduce
11 See, for example, R v Jarden [2008] NZCA 69; [2008] 3 NZLR 612 at [12].
12 R v Rawiri [2011] NZCA 244 at [19]–[23].
13 See, for example, O’Connor v R [2016] NZCA 414 at [33].
your sentence by one year, bringing your final sentence to 16 years 6 months’
imprisonment.
Minimum period of imprisonment
[30] The final issue is whether I should impose a minimum period of imprisonment. These are to be imposed where the standard non-parole period is insufficient to hold an offender accountable, denounce their conduct, deter such offending, or protect the community.14
[31] The Crown has correctly noted the importance of general deterrence in drug importation cases, and the risk of New Zealand being perceived as a low-risk nation in which to traffic drugs. On account of this, a minimum period of imprisonment of
10 years (just less than 60 per cent of your end sentence) is said to be necessary in your case.
[32] There is no doubt that your offending is serious. And in cases like this, minimum periods of imprisonment of around 50 per cent are not uncommon.
[33] I have considered the issue carefully. You are only a young man, with a degree of naivety, and I consider you are very unlikely to reoffend after completing your sentence. As I have said, I do not consider you were a major player in this importation, or even the “middle man” as the Crown has suggested. The sentence I am imposing is a lengthy one, and given your personal circumstances, including being far from home with no local support, the sentence will be a particularly difficult one for you. Moreover, I am satisfied that your already lengthy final sentence will be a sufficient general deterrent. Accordingly, I will not impose a minimum period of imprisonment on you today.
Sentence
[34] Mr Wan, will you now please stand.
14 Sentencing Act, s 86.
[35] On your charge of importing the class A drug methamphetamine, I sentence you to 16 years and 6 months’ imprisonment. I do not impose a minimum period of imprisonment.
[36] Please stand down, Mr Wan.
S Fitzgerald J