R v Yau

[2015] NZHC 2939

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-004-003100 [2015] NZHC 2939

THE QUEEN

v

KAKIT YAU

Hearing:	24 November 2015
Appearances:	D Johnstone for Crown L D Burns for Prisoner
Judgment:	24 November 2015

SENTENCING NOTES OF GILBERT J

Solicitors:

Meredith Connell, Auckland
L D Burns, Auckland

R v YAU [2015] NZHC 2939 [24 November 2015]

Introduction

[1]      Mr   Yau,   you   appear   for   sentence   on   one   charge   of   supplying methamphetamine on or about 22 March 2015 and one charge of possessing methamphetamine for the purposes of supply on or about 25 March 2015.   The maximum penalty for these offences is life imprisonment.

The facts

22 March 2015 - supply

[2]      You are a Hong Kong national living in New Zealand.   You first came to New Zealand on a student visa in 2010.  You are an only child and have no family in New Zealand.  Since your arrival in New Zealand, you have returned to Hong Kong at the end of each year to visit your parents.

[3]      Four or five years ago you met a person in Hong Kong who sells drugs.  Late last year while on a visit to Hong Kong, this person asked you whether you knew of any people in New Zealand who might be interested in buying methamphetamine. You   agreed   to   become   involved   as   a   distributor   of   methamphetamine   in New Zealand.

[4]      Your subsequent offending came to the attention of the police during the course of Operation Wand, an investigation into large scale importation and supply of methamphetamine.

[5]      On 17 March 2015, after being advised by your contact that a consignment of methamphetamine had arrived in New Zealand, you told him that you had found a buyer interested in purchasing four kilograms of methamphetamine at $190,000 per kilogram.  On 22 March 2015, you arranged for three samples of methamphetamine to be delivered to this buyer.

[6]      The following day, you reported to your contact in Hong Kong that two of the samples  were  found  to  be  “wet”  and  asked  if  further  “dry”  samples  could  be supplied.  You indicated that there were two buyers, one of whom you described as

being “very professional” and wanting to conduct “lab tests”. You advised that if the samples were satisfactory, this buyer would purchase the methamphetamine immediately.

[7]      You  had  a  number  of  conversations  with  your  contact  in  Hong  Kong concerning the procedure to be followed when supplying the order.

[8]      On 25 March 2015,  before any further supply occurred, Operation Wand terminated and you admitted your involvement to the police.

25 March 2015 – possession for supply

[9]      On 23 March 2015, you discussed the possible supply of methamphetamine at $220,000 per kilogram to another buyer who required four or five kilograms of methamphetamine a week.   Following negotiations between you, your contact in Hong  Kong  and  the  buyer,  it  was  agreed  that  you  would  initially  supply one kilogram of methamphetamine for $230,000 and then a further kilogram in two

500 gram lots a few days later, after the buyer had arranged the rest of the money.

[10]     You were apprehended by the police shortly after you took possession of the first kilogram of methamphetamine for the purposes of on-supply on 25 March 2015. The  methamphetamine  was  contained  in  two  plastic  snap  lock  bags  concealed beneath other items in a carry bag.

Starting point

[11]     The quantity of methamphetamine involved, at least one kilogram, has a street value of approximately $1 million.  You played an important role in that you found the buyers, negotiated pricing and arranged collection and delivery.  However, the offending took place over a short period and, because of police intervention, only a small quantity of methamphetamine was actually supplied.

[12]      The Crown submits that your offending falls in the middle of band 4 in

R v Fatu for which  starting points  between  ten  years and  life imprisonment are

appropriate.1     That is a guideline decision of the Court of Appeal.   The Crown submits that a starting point of 13 to 15 years is warranted in this case.

[13]     Mr Burns accepts that the amount of methamphetamine involved places you in band 4 of Fatu.  However, he submits that you should be placed at the bottom of the  band  because  you  served  only  as  a  middleman  between  the  buyer  and  the overseas  contact  who controlled the supply.   He argues that  a starting point of ten years’ imprisonment should be adopted. That is the very bottom of the band.

[14]     You  played  an  important  role  in  locating  buyers  and  arranging  pricing, collection  and  delivery  of  a  very  significant  quantity  of  methamphetamine. Although I accept that your offending falls towards the lower end of Fatu, band 4, I do not consider that it can be seen as being at the very bottom of that band.  Having regard to the starting points adopted in a number of broadly comparable cases, I consider that the appropriate starting point is 12 years’ imprisonment.2

Personal factors

[15]     You  agreed  to  become  involved  in  the  supply of  significant  commercial quantities  of methamphetamine  purely for personal  gain.   The probation  officer reports  that  you  have  demonstrated  a  sense  of  entitlement  and  appear  to  be indifferent to your role in the offending and the wider implications of becoming involved in the distribution of methamphetamine, a particularly addictive drug that causes great harm in our community.   The probation officer nevertheless assesses you as having a low risk of re-offending.

[16]     I have read the letter that you have presented to me today for the purposes of sentencing and I note that your involvement in this activity seems to have been in part caused as a result of your isolation from family and friends in New Zealand, and I note that you consider that you now do understand the very harmful effects of

methamphetamine and regret very much the role that you played in this.

1      R v Fatu [2006] 2 NZLR 72.

2      Wei v R [2012] NZCA 54; R v van Niekerken [2012] NZHC 3546; R v Tarm [2015] NZHC 930.

[17]     You  were  24  years  of  age  at  the  time  of  this  offending.   You  came  to New Zealand in 2010 as I have said, and you completed your secondary schooling in Rotorua. You then studied from 2012 to 2014 at AUT University and graduated with a Bachelor of International Hospitality Management.

[18]     I  take  into  account  that  you  were  still  at  school  when  you  came  to New Zealand and have not had the advantage of family support in New Zealand.  As I have said, this may have been a factor that led you into this offending.

[19]     You have no relevant previous convictions.  The Crown accepts that you are entitled to a modest credit for previous good character, as was approved by the Court of Appeal in Wei v R.

[20]     I also take into account that you were subject to a 24 hour curfew from

28 March 2015 until you were convicted, a period of seven months.

[21]     I allow a discount of 15 months to take account of these personal factors.

Guilty plea

[22]   You immediately admitted your involvement to the police after being apprehended.   However, you did not enter a guilty plea at the first available opportunity and therefore do not qualify for the full 25 per cent discount that would have been available had you done so.   Taking into account the overwhelmingly strong case against you, I consider that a discount of 20 per cent should be allowed for your guilty plea.

[23]     This   results   in   an   end   sentence   of   eight   years   and   seven   months’

imprisonment.

Minimum period of imprisonment

[24]     Minimum periods of imprisonment are commonly imposed for serious drug offending.  In my view, a minimum period of imprisonment equating to 50 per cent of the end sentence is required to meet the statutory purposes identified in s 86(2) of

the  Sentencing  Act  2002,  particularly  those  of  denunciation,  deterrence  and protection of the community in a case such as this involving large scale commercial dealing in methamphetamine.

Sentence

[25]     Mr Yau, would  you  please stand.   On each of the charges of supplying methamphetamine and possession of methamphetamine for the purposes of supply I sentence you to a term of imprisonment of eight years and seven months and order that you serve a minimum period of imprisonment of four years and three months.

These sentences are to be served concurrently.

M A Gilbert J