R v Wong
[2018] NZHC 1973
•3 August 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-004-2723
[2018] NZHC 1973
THE QUEEN v
SHUI TONG WONG
Hearing: 3 August 2018 Appearances:
S McColgan for Crown
D G Young and J Wong for Defendant
Judgment:
3 August 2018
SENTENCING REMARKS OF LANG J
R v WONG [2018] NZHC 1973 [3 August 2018]
[1] Mr Wong, you appear for sentence having pleaded guilty to charges of being in possession of material (t-boc methamphetamine) and equipment with intent to manufacture methamphetamine,1 as well as a charge of conspiring to manufacture methamphetamine,2 and a charge of possessing methamphetamine.3 The maximum penalty on the first two charges is five years imprisonment. The maximum penalty on the conspiracy charge is 14 years imprisonment, and the maximum sentence on the possession charge is six months imprisonment.
Facts
[2] I sentence you on the basis of a summary of facts that you agreed to when you entered your guilty pleas. This records that on 14 January 2017, a consignment of cargo containing approximately 160 litres of t-boc methamphetamine, labelled as dishwashing liquid, left Hong Kong by sea bound for New Zealand. Boxes containing the t-boc methamphetamine were labelled with a triangle.
[3] T-boc methamphetamine is a liquid created when a chemical is added to methamphetamine so as to mask the existence of the methamphetamine. The methamphetamine can be extracted through a chemical process involving the addition of hydrochloric acid and the completion of an evaporation process. The summary records that 160 litres of t-boc methamphetamine can produce 46 kilograms of pure methamphetamine.
[4] The consignment arrived in New Zealand on 28 January 2017, and customs officers who inspected it discovered the existence of the t-boc methamphetamine. They replaced most of the t-boc methamphetamine with a placebo liquid. They then arranged for a controlled delivery of the boxes, which now contained the placebo liquid, together with a small quantity of t-boc methamphetamine, to be made to the address to which the consignment was to be delivered. On 18 February 2017, you and one of your co-offenders, Mr Mingsisouphanh, arranged for a courier company to uplift the consignment and deliver it to a storage unit in New Lynn. Mr Mingsisouphanh had rented the storage unit the previous day.
1 Misuse of Drugs Act 1975, ss 12A and 12A(3)(b).
2 Misuse of Drugs Act 1975, ss 6(1)(f) and 6(2).
3 Misuse of Drugs Act 1975, s 7(1)(a).
[5] The police then obtained a warrant authorising them to install audio and visual surveillance devices in the storage unit. You and another co-offender, Mr Chan, were observed visiting the storage unit on 22 February 2017. You and Mr Chan inspected the contents of the unit and discussed the triangular markings on the boxes that indicated t-boc methamphetamine was stored inside. You also removed the contents of some boxes and moved others.
[6] On 23 February 2017, police staff covertly observed you picking Mr Chan up from an inner-city backpackers’ hostel. You and Mr Chan then travelled around Auckland seeking properties to rent.
[7] On 28 February 2017, you and Mr Mingsisouphanh went back to the storage unit. You took samples from one of the boxes containing the placebo substance. You placed these into two bottles, put them in a plastic bag and then went back to your address.
[8] On 2 March 2017, the police again observed you and Mr Mingsisouphanh uplifting boxes from the storage unit and placing them in your vehicles. You then took the boxes back to your address.
[9] Between 27 February and 13 March 2017, three parcels containing a rotary evaporator, an agitator and items of glassware arrived in New Zealand. These all contained false descriptions on their labels. On 14 March 2017, you and Mr Chan collected the packages containing the agitator and glassware. You took them to a residential address in Lynfield where you unloaded them into a garage. The rotary evaporator had been collected earlier and taken to the storage unit. You, Mr Mingsisouphanh and Mr Chan all then went to the storage unit and loaded the remaining contents of the unit into a rental van. You then returned to the Lynfield address.
[10] The police terminated their operation shortly after this. You and Mr Mingsisouphanh were located in Newmarket and you were both arrested.
[11] When the police searched the Lynfield address, they found the t-boc methamphetamine and placebo substances as well as the equipment and glassware that had been taken to the address.
[12] When the police searched your address, they found the sum of $251,208.00 in cash hidden in three bedrooms.
[13] In an upstairs bathroom under a sink the police found an ice cream container that held a zip lock bag containing 236 milligrams of methamphetamine, a plastic container containing 494 milligrams of methamphetamine and a plastic bag containing
22.3 grams of methamphetamine. The police also located drug utensils and a safe that they had seen earlier in another storage unit rented by Mr Mingsisouphanh. The safe was empty.
[14] The police also searched a storage unit in Avondale that you had rented. Inside this they located two five litre containers of hydrochloric acid. Plainly those items were going to be used to extract the methamphetamine from the t-boc methamphetamine.
[15] When the police asked you for an explanation, you said you had been helping out a friend called John, who you did not know that well.
Starting point
[16] The first stage in the sentencing process is to select a starting point for the sentence to be imposed on you. I take the lead, or most serious, charge to be that of conspiring to manufacture methamphetamine. The starting point I select in relation to that charge will also incorporate your culpability in relation to the two charges of being in possession of material and equipment.
[17] This conspiracy was obviously well down the track towards manufacturing methamphetamine. You were in possession of the t-boc methamphetamine, the equipment and glassware and the hydrochloric acid. You and your co-defendants had also arranged to gain access to the property in Lynfield. All that was necessary was to put the items together and the manufacturing process could begin. Your culpability
was therefore very close to that of a person engaged in the manufacture of methamphetamine.
[18] I am guided by the starting points selected by the Judges who sentenced Mr Chan and Mr Mingsisouphanh.4 The Judge who sentenced Mr Chan selected a starting point of 13 years ten months imprisonment on the charges that you now face. The Judge who sentenced Mr Mingsisouphanh took a starting point of 12 years six months imprisonment. That Judge considered Mr Mingsisouphanh’s culpability was lower than that of Mr Chan, as demonstrated by the fact that Mr Chan travelled to Hong Kong on several occasions during the police investigation. This indicated he held a more senior role in the undertaking than Mr Mingsisouphanh.
[19] I see nothing to distinguish your role in the enterprise from Mr Mingsisouphanh. The summary of facts demonstrates that you operated in the same way as he did. You appear to have had broadly similar roles and responsibilities within the enterprise. For that reason I select a starting point of 12 years six months imprisonment on the conspiracy charge. In selecting the starting point I put to one side the cash that was found in your possession. I do not consider it adds to your culpability in any way in relation to the charges you now face.
[20] It is necessary to apply an uplift to reflect the fact that the police found a significant quantity of methamphetamine in your possession. That offending is entirely separate to the offending underlying the conspiracy charge.
[21] Ordinarily, a person found in possession of 23 grams of methamphetamine would be charged with possession for supply. Offending of that nature would generally justify a starting point of three to four years imprisonment. The Crown has elected, however, to charge you with simple possession of that methamphetamine notwithstanding the quantity involved. The maximum sentence on that charge is one of six months imprisonment. Your offending must be regarded as being at the top-end of the range for this type of charge. I therefore apply an uplift of six months to reflect that offending. This produces a sentence of 13 years imprisonment.
4 R v Chan [2017] NZHC 2924; R v Mingsisouphanh [2018] NZHC 532.
Aggravating factors
[22] You have no previous convictions so I do not increase the starting point to reflect aggravating factors personal to you.
Mitigating factors
[23] It is now necessary to consider the extent to which the sentence should be reduced to reflect mitigating factors personal to you.
[24] I propose to allow a global discount of nine months to reflect mitigating factors other than your guilty pleas. The principal mitigating factor is that at 61 years of age these are your first convictions. You are entitled to call in aid your previous good character at a time like this. Included in this discount is a small discount to reflect the extent to which you cooperated with the police. It also includes some allowance for remorse, although that is difficult to discern from the pre-sentence report. I give you the benefit of the doubt in respect of comments attributed to you in the report because I accept that some of your comments may have been misinterpreted given your limited command of English.
[25] From the resulting sentence of 12 years three months imprisonment I am required to apply a further discount to reflect your guilty pleas. These did not come at an early stage because they were only entered on 6 July 2018 and your trial was due to commence on 6 August 2018. Ordinarily an allowance of no more than 15 per cent would be given for pleas entered at that late stage.
[26] Your counsel submits I should apply a discount of 25 per cent, and he has explained the difficulties that have lain in the path of the entry of your pleas. I consider a discount of 25 per cent would be too great even having regard to the factors upon which your counsel relies. A discount of that magnitude would also be unfair to Mr Chan and Mr Mingsisouphanh. They entered their guilty pleas many months before you, and they received discounts of just 20 per cent for their pleas.
[27] Although it may be regarded as generous, I am prepared to accept the Crown’s suggestion that you receive a 20 per cent discount for guilty pleas. This reduces your
sentence by two years six months to produce an end sentence of nine years nine months.
Minimum term of imprisonment
[28] In any case where a Court sentences an offender to two years imprisonment or more, it may order the offender to serve a minimum term of imprisonment before being eligible to apply for parole.5 The Court may take that step when the usual parole provisions would be insufficient to adequately recognise the sentencing principles of deterrence, denunciation and the need to hold the offender accountable for the offending.
[29] In the ordinary course of events you would be eligible for parole after serving just three years three months of your sentence. I consider that would be manifestly inadequate to recognise the sentencing principles to which I have referred. I therefore propose to make an order requiring you to serve a minimum term of four years ten months before being eligible to apply for parole. This is slightly less than one-half of your sentence.
Sentence
[30] The sentences to be imposed are as follows. On the charge of conspiring to manufacture methamphetamine you are sentenced to nine years nine months imprisonment. On that charge you are ordered to serve a minimum term of four years ten months before being eligible to apply for parole. On the charges of being in possession of material and equipment for manufacturing methamphetamine you are sentenced to four years imprisonment. Those sentences are to be served concurrently with each other and with the sentence imposed on the conspiracy charge. On the charge of being in possession of methamphetamine you are sentenced to five months imprisonment. That sentence is to be served concurrently with all other sentences.
5 Sentencing Act 2002, s 86.
[31]Stand down.
Lang J
Solicitors:
Crown Solicitor, Auckland
D Young, Barrister, Auckland
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