R v Wang HC Christchurch CRI 2005-009-001376

[2007] NZHC 1860

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2005-009-001376

REGINA

v

XIAOKANG WANG

Hearing:         18 June 2007

Appearances: D J Orchard and C E Butchard for Crown

M J Callaghan for Prisoner

Judgment:      18 June 2007

SENTENCING REMARKS OF FOGARTY J

[1]      Mr Wang, the jury convicted you on a charge of conspiracy to supply methamphetamine.  You are entitled to be sentenced on what the Crown has proved in the course of the trial.  Your counsel correctly acknowledges that you have been proven to have participated in three drug deals.  The first of these drug deals appears to have involved one gram of methamphetamine on about 18 October and I have read the evidence as you getting that drug from Mr Sui for Mr Wong.  The second deal, we do not know the quantity but given that Mr Wong was a significant buyer, I think the fair  inference  is that  it  is of the same order.   The third deal was on

22 November and it is common ground between your counsel and counsel for the

Crown that you facilitated this deal,  and that was also my own note at the time, so

R V WANG HC CHCH CRI 2005-009-001376  18 June 2007

that in the end Mr Sui dealt directly with Mr Wong.   It appears to have been a significant deal.

[2]      There is a principle, Mr Wang, that we follow in New Zealand that so far as possible offenders should be treated like alike, similar to other offenders.  That is a basic principle of justice.   The Court of Appeal in a case called R v Fatu [2006]

2 NZLR 72 has set out guidelines for sentencing in relation to the supply of methamphetamine which distinguishes between low level supply, supplying commercial quantities and supplying large commercial quantities. The Crown are submitting in this case that you should be sentenced on the basis that you fall within band two, that is supplying commercial quantities between 5 and 250 grams. The starting point is between three and nine years and the Crown has suggested a starting point of four to five years.

[3]      There have been a number of cases which suggest that where the Crown proceeds on the basis of a charge of conspiracy to supply as against supply, there should be a reduction in the Fatu band and I refer to the case of R v Savage HC WHA CRI 2005-029-1267 24 July 2006.  This appears to be confirmed in the recent decision of the Court of Appeal in  R  v Emirali  CA177/06  12  December  2006. Mrs Orchard has submitted that on the facts of that case the distinction is natural given  that  there  the  customs  officers  interfered  with  the  package  of  cocaine, removing the drug and supplanting it with innocuous material.

[4]      I am now in a situation where I do not think the Crown has proven that you handled more than five grams.  On the other hand, I am satisfied that you facilitated, at least in the third deal, and coupling that with the first two deals, in more than five grams.  You were involved, I think, in supplying commercial quantities in the natural sense of those words.

[5]      Your counsel has submitted that the offending justifies a starting point of three years or, more accurately, he is looking for a sentence of three years imprisonment.  He also relies on my earlier decision in the case of R v Kung   HC CHCH CRI 2005-009-013766 11 September 2006 where I took three years as the starting point for proven supply of 42 grams.

[6]      These matters are always one of judgment, but in this case I think that it is appropriate to take a starting point for your offending at four years.  I do not put it any higher than that because there is some doubt as to how much of your association with Sui is based on a friendship and social occasions and how much of it was assisting Sui in drug deals and you are entitled to the benefit of that doubt.  You did not plead guilty.  Your case went to trial.

[7]      This Court is very used to getting letters from persons who have gone to trial, expressing their sorrow and regret at the end, and you have written me a letter to that effect.  In your case I am persuaded that you have genuinely regretted this conduct. First of all, you front up and accept that the jury’s verdict was correct.   Secondly, you have set out in some detail your family background and the remorse you have for letting down your parents (who sent you out to New Zealand) and your wife and family, and told me something of their intervention in your life.  I take into account your  culture.   Families are  important  and you  show  a  genuine  remorse  for  the damage you have done to your family’s reputation and to the distress you have caused in their lives and in the life of your wife.

[8]      You are a first offender.  The authorities say that in the case of drug dealing little weight can be given to these kind of mitigating factors.   In your case, taking into account that you are a first offender and a young man, I am satisfied that the sentence should be reduced to three years.

[9]      Accordingly you are sentenced to three years imprisonment.

Solicitors:

Raymond Donnelly & Co, Christchurch, for Crown

M J Callaghan, Christchurch, for Prisoner