R v Wei HC Auckland CRI-2009-404-000251

[2011] NZHC 610

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-404-000251

THE QUEEN

v

KUN WEI

Appearances: B Northwood for Crown

S D Cassidy for Prisoner

Judgment:      18 February 2011 at 9:00 AM

SENTENCING NOTES OF COURTNEY J

Solicitors:           Meredith Connell, P O Box 2213, Auckland 1140

Fax: [phone] – B Northwood / S Symon

Counsel:             S D Cassidy, P O Box 26172, Epsom, Auckland 1344

Fax: [phone]

R V WEI HC AK CRI-2009-404-000251 18 February 2011

[1]      Kun Wei, you appear for sentence today having been found guilty on three charges of supplying methamphetamine to another person, Ms Van Nguyen.  These counts related to supplies by you to Ms Nguyen on 24 May 2007, 3 June 2007 and

11 June 2007.  You were one of several people charged with such offences following a lengthy police operation.

[2]      In sentencing on charges of this kind the main objective is denunciation and deterrence.  I am required to apply the principles set out in the Sentencing Act 2002 which include the seriousness of the offending which is indicated by the maximum penalty of life imprisonment available for these charges.

[3]      It is clear from the evidence that you occupied part of a lengthy supply chain. The Crown asserts that you occupied a position close to the top of the supply chain. Your lawyer accepts that this appears to be so though suggests that you were likely to be   little   more   than   a   go-between   or   delivery   person,   given   your   modest circumstances.  Whilst I accept that you were not at the top of the supply chain, you are nevertheless being sentenced on the basis that you were supplying wholesale amounts of methamphetamine and must therefore be regarded as being well up in the chain.

[4]      You were supplying wholesale units of methamphetamine which made their way through Ms Nguyen down to street level suppliers and, eventually users and it is the use of methamphetamine in our society that creates great misery and hardship and expense for this society.   The courts take a very, very serious view of methamphetamine offending. This supply was obviously for commercial purposes.

[5]      The  actual  amount  supplied  by  you  has  been  the  subject  of  careful submission  by  your lawyer.   This  aspect  is  important  because the  fixing of an appropriate sentence depends significantly on the amount of methamphetamine supplied.   The starting point in fixing sentences for methamphetamine supply is undertaken by reference to the Court of Appeal’s decision in Fatu.   The Crown submits that you supplied over 800 grams of methamphetamine which would bring this case within band 4 of Fatu, which applies to the supply of 500 grams or more of methamphetamine.  That is regarded as a supply of a very large commercial quantity

and attracts a starting point of ten years up to life imprisonment.   Mr Cassidy, on your behalf, submits that the evidence shows only a total of 536 or even less which would bring the case within band 2 or band 3 of Fatu, attracting a lower starting point.

[6]      The evidence about the amounts of methamphetamine you were supplying came from both intercepted communications and evidence from Ms Nguyen.   In addition, there was evidence from police witnesses as to the amounts typically charged for methamphetamine at that time.

[7]      Ms Nguyen’s credibility was strongly contested at trial and it is clear from the not guilty verdict on three other counts that the jury had reservations about her recollection in relation of those occasions.  However, the jury’s verdict on the counts on which you were found guilty reflects its acceptance of here evidence on those points coupled with the other evidence adduced by the Crown.

[8]      An intercepted call on 18 May 2007 between Ms Nguyen’s partner, Mr Kha, who was organising the supply chain from prison, and Mr Crichton, the dealer to whom Ms Nguyen supplied methamphetamine, made it clear that Ms Nguyen expected to be supplied with about ten ounces from you on any future occasion.  The Crown properly acknowledges that this is not direct evidence of the amount you supplied Ms Nguyen with on any particular occasion.  But it is significant because of its consistency with other evidence directly relating to those occasions.

[9]      I start then with Count 3, the charge of supplying on 24 May 2007.  There is no direct evidence as to how much methamphetamine was supplied.  But intercepted conversations between Mr Crichton and Mr Kha in close proximity to that supply recording Mr Crichton’s complaint that he only received four or five ounces rather than the ten ounces against the background of the phone call I have referred to provides a good foundation to conclude that the supply you were found by the jury to have made on 24 May 2007 was four or five ounces, or 140 grams.  I accept your lawyer’s submission that for sentencing purposes I should take the lower figure of four ounces or 112 grams.

[10]     The supply on 3 June 2007 which was the subject of Count 5 was also made in close proximity to intercepted conversations between Mr Kha and Mr Crichton which made it very clear that Mr Crichton had obtained ten ounces of methamphetamine from Ms Nguyen.   Mr Cassidy submitted however that the conversation was consistent with Ms Nyugen only obtaining five ounces of that amount from you and the rest from another supplier.   But the evidence does not support my finding that she was dealing with anyone else.  In the time frame of that supply there was no evidence of any other calls between Ms Nguyey and another supplier.   In evidence Ms Nguyen denied using another supplier.   I find that this supply could only have come from you.

[11]     The supply on 11 June 2007 which is the subject of Count 6 was also the subject of intercepted conversations between Ms Nguyen and Mr Kha.   You are specifically mentioned by reference to your English name, with Ms Nguyen saying that you have supplied her with “20 plus items”.  In drug parlance that is about 20 ounces of methamphetamine.   However, Mr Cassidy pointed to later evidence by Ms Nuygen that she supplied on two ounces to Mr Crichton which suggests that she obtained a much smaller amount than 20 ounces from you. He says that is supported by the amount of money she brought into your shop on 9 June 2007, $30,000, which would be consistent with only 3 ounces being supplied.

[12]     In considering this issue I must, however, take account of the other evidence of substantial amounts of money that Ms Nguyen either paid to you or referred to as being owed by you.  As I have noted, she paid you$30,000 on 9 June 2007.  Further, the sum of $74,950 was found in her car on 16 Junre 2007.   At approximately

$10,000 an ounce, the total of these amounts would represent the proceeds of sale of about ten ounces of methamphetamine.   In addition, there were a short time after that, telephone conversations in which Ms Nguyen refers to owing you $90,000 or

$95,000.  Assuming that that figure included the $74,950 seized by the police, these conversations would also be consistent with a recent supply of 10 ounces of methamphetamine.

[13]     I  therefore  proceed  on  the  basis  that  there  were  supplies  shown  on  the evidence of 112 grams on 24 May 2007, Count 3, 284 grams on 3 June 2007. Count

5, and 284 grams on 22 June 2007, Count6.  This makes a total supply of 680 grams of methamphetamine, bringing the case in towards the lower band of band 4 in Fatu.

[14]     An important aspect of sentencing is the need to ensure consistency in similar cases.   In this case, in setting a starting point it is appropriate to compare your offending  with  the  other  members  of  the  supply  chain  who  have  already been sentenced.    At  the  lower  end  of  the  supply  chain  were  several  people including Mr  Khan  and  Mr  Diran,  both  of  whom  featured  in  the  intercepted conversations in evidence in  your trial.   These were lower level dealers selling methamphetamine from their automotive premises in Papatoetoe.   They got their methamphetamine from Mr Crichton.   Mr Khan supplied about two kilograms of methamphetamine and a starting point of 16 years’ imprisonment was taken.  His co- offender, Mr Diran, was found to have supplied about 800 grams and a starting point

for that offending was 12 years’ imprisonment.1

[15]     Mr Crichton, the offender who featured significantly in evidence in your trial and  who  obtained  his  methamphetamine  from  Ms  Nguyen  was  found  to  have supplied at least 1.1 kilograms of methamphetamine.   That offending attracted a starting point of 13½ to 14 years’ imprisonment.2

[16]     Finally, Ms Nguyen,  who obtained  her methamphetamine from  you,  was sentenced on the basis of supplying a total of 1.3 to 1.4 kilograms.   A starting point of 13 years’ imprisonment was taken.3

[17]      The amount of methamphetamine you have been found guilty of supplying is less than these other offenders.   On the other hand your culpability is significant because you were towards the top of the chain supplying the wholesale amounts to Ms Nguyen.

[18]     Taking all of these factors into account I consider that a starting point of 11 years is appropriate.4    The only mitigating factor I can take into account is the fact

1 R v Khan & Ors HCAK CRI 2008-092-002364 15 October 2009

2 R v Crichton
3 R v Nuygen HCAK CRI 2008-092-2364 1 December 2009

4 R v Li CRI-2006-019-008458 HC Auckland, 25 August 2009

that you are a first offender, which would justify a reduction of six months.  Your lawyer has raised your age as a possible mitigating factor but I do not accept that. You were in your mid-20s at the time of this offending and well old enough to know what you were doing.  Your lawyer has also asked that I take into account the family difficulties that you will face when you are in prison in New Zealand because your mother will find it difficult to visit.   She has already found difficulties in coming here.  Unfortunately, the personal circumstances of drug offenders carry little weight in this Court.   And I would add further that those who come to this country and offend do so knowing the risk that they will be imprisoned far from their families for a long time.

[19]     I therefore impose a sentence of ten years 6 months on each charge, these sentences to be served concurrently.

[20]     The Crown has also submitted that a minimum period of imprisonment be imposed under s 86(2) Sentencing Act 2002.   This is permitted if the period of imprisonment would otherwise be served as insufficient to denounce or deter the accused from such offending.   I note that in this case a minimum period of imprisonment was imposed on Mr Diran but not on the other offenders.  However, I am influenced by the fact that your offending was at the wholesale end of the chain and very serious.  The only means by which this Court can send a message to those who offend in this way so as to denounce such conduct and deter future offenders is by stern sentences and a minimum period of imprisonment is justified in this case.

[21]     I therefore impose a minimum period of imprisonment of 50%.

P Courtney J