R v Yim

[2017] NZHC 702

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-004-002124 [2017] NZHC 702

THE QUEEN

v

CHRISTOPHER YIM

Hearing:	11 April 2017
Appearances:	B Northwood for Crown S Lack on behalf of R Mansfield for Defendant
Sentenced:	11 April 2017

SENTENCING NOTES OF VENNING J

Solicitors:           Meredith Connell, Auckland

Copy to:            R Mansfield, Auckland

S Lack, Auckland

R v YIM [2017] NZHC 702 [11 April 2017]

[1]      Christopher Yim, you are for sentence on one charge of possession of methamphetamine for supply.   The maximum penalty is life imprisonment.   The Crown does not offer any evidence on the other charge you face of conspiracy to import. You are discharged on that count.

[2]      You were arrested following an investigation into the importation into New Zealand of over 39 kilograms of methamphetamine.   Two of your co-accused Mr Hung and Mr Chen came to New Zealand to arrange a consignee address and to receive the delivery of the consignment of methamphetamine.   They were also to extract the concealed methamphetamine from the consignment and repackage it for supply to others.  In January 2016 Mr Hung arrived in New Zealand from Taiwan for those purposes.   On 10 February Mr Chen arrived in New Zealand from China to assist Mr Hung.  They acquired a rental address in Forrest Hill on the North Shore which became the consignment address.  They also hired a rental vehicle to assist with the supply of the methamphetamine once it had been received.

[3]      On 21 February 2016 a consignment arrived at Auckland Port from China consisting of 28 boxes described as granite tea trays.   On 25 February 2016 the consignment was examined by New Zealand Customs Service and was found to contain approximately 39.6 kilograms of methamphetamine concealed within the granite tea trays.   The Customs Service replaced the majority of the drugs with a placebo for the purpose of completing a controlled delivery.  A Surveillance Device Warrant was issued out of the High Court in New Zealand which authorised the interception of the cell  phone number used to  contact the logistics company to arrange delivery.

[4]      On 1 March 2016 at about 12.00 pm the consignment was delivered to Hung and Chen at the rented Forrest Hill address.

[5]      The ongoing investigation into the importation led the police to you.  On 3

March 2016 a series of search warrants were executed on secure parks, secure units and cars belonging to you.  At a storage unit in your name at St Lukes the police found a Lamborghini car with $932,160 inside it.  They also found a BMW car with

$550,650 inside it.  At an address in Nugent Street, Newmarket the police found the

kilogram of methamphetamine in a car registered to you together with $141,940.  At

Ireland Road, Panmure your home address, the police found a further $214,708. [6] When you were arrested you declined to make any statement.

[7]      The  pre-sentence  report  notes  that  you  have  minor  convictions,  two  for driving and one for shoplifting dating back to 1997.  You were born in Hong Kong and immigrated to New Zealand approximately three years ago.   When you were asked where the money originated from which sustained your lifestyle you were unable to provide an explanation. Your explanation for your offending was simply to say that you were asked to hold something for a friend and did this out of the goodness of your heart.

[8]      In sentencing you the Court takes into account the purposes and principles of the Sentencing Act 2002.   In  your case the particularly relevant factors are the seriousness of the offending, your culpability and also denunciation and deterrence. You had a substantial amount of methamphetamine in your possession which was to be supplied to members of the community.  This Court regularly sees the impact that methamphetamine has on people and communities.  It leads to offending of a serious nature, including very serious violent offending.  The sentences imposed on your co- offenders are also relevant.

[9]      The Crown notes that one of your co-offenders Mr Chen was sentenced by Fogarty J.  The Judge took a starting point of 18 years imprisonment.  Mr Hung was sentenced by Lang J.   In that case the Judge  took a starting point of 20 years imprisonment.  The difference in the starting points between them is that Mr Chen faced  a  charge  of  possession  for  supply  while  Mr  Hung  faced  a  charge  of importation.  I acknowledge Mr Lack’s submission that Mr Chen was in possession of substantially more methamphetamine than you and of course he was on the facts playing a more major role than you.

[10]     Mr Northwood submits that a starting point of 16 years is appropriate in your case.  Mr Lack takes issue with that.  On your behalf he submits the Court should take a starting point of 11 years, noting that you only face one charge, that of

possession for supply.  He has also referred to a number of authorities to support that submission.

[11]     He submits that the large sums of cash found in the vehicles associated with you and with the methamphetamine is only relevant to confirm the commerciality of the offending, which is confirmed itself by the finding of the kilogram of methamphetamine.

[12]  Mr Northwood submitted that the presence of the cash with the methamphetamine and in cars belonging to you and at your home speaks of the commerciality of the offending.

[13]     However, he accepted that the Crown had no evidence available to contradict the submission made on your behalf that you were holding this methamphetamine on behalf of others.

[14]     Mr Lack is correct that the charge you face is possession for supply and that is the basis upon which this Court must sentence you. You are not facing a charge of supplying.  Nevertheless the quantity that you were in possession of for that purpose was significant.  Counsel properly accepts it falls into band 4 of R v Fatu.1   Having regard to your co-offenders’ sentences, the lesser role you played, the charge you faced, and the authorities referred to by counsel including R v Huang & Wei, R v Li,

Voong v R;  R v C; and R v Yau I take as a start point for your sentence 14 years imprisonment.2   Your role was important to the overall operation.  The more people involved in operations like this the more difficult it is for the authorities to apprehend those responsible and to locate the methamphetamine.   You were holding the methamphetamine at what was no doubt considered a secure location.   You were entrusted with holding a very substantial amount of methamphetamine and knew that

it was for the purpose of supply.

1      R v Fatu [2006] 2 NZLR 72 (CA).

2      R v Huang & Wei HC Auckland CRI-2006-019-8458, 8 May 2009;  R v Li HC Auckland CRI-

2006-019-008458, 25 August 2009;  Voong v R [2013] NZCA 341; R v C HC Auckland CRI-
2007-004-25638, 17 August 2007; and R v Yau [2715] NZHC 2939.

[15]     There are no personal aggravating factors.  Mr Lack argues for a reduction for your personal circumstances.  I do not consider you to be entitled to a credit for good character.  You have some, albeit minor convictions.  You have only been in New Zealand for a relatively short time. There is no evidence as to your contribution to society.  You have declined to provide information to the probation officer as to how you funded your lifestyle.

[16]     The letters of character referred to in your support are from your parents, your partner and business associates.  You are fortunate to have the support of your family in particular but there are aspects of the letters which show a lack of insight into just what you were involved in and effectively amount to a denial.  One of the letters says you have “supposedly broken the law”.

[17]     As the Supreme Court noted in R v Jarden the personal circumstances of an offender must be subordinated to the importance of deterrence in offending involving large commercial drug dealing:3     There is nothing about your case to suggest a different approach is required.

[18]     I do take into account, however, that you have been subject to restrictive terms of bail, electronic monitoring and 24 hour curfew.  I reduce the starting point by six months to take account of that.

[19]     Mr Lack also argues for a reduction on the basis of remorse.  He has tendered a letter you have written to the Court to support that submission.  I have read that letter and considered it.  The pre-sentence report writer who interviewed you did not consider you were remorseful at all, noting that you presented with little insight and your remorse was nonexistent.   The letter you have tendered purports to express remorse as I have said but I am not satisfied it is the type of genuine remorse the Supreme Court had in mind in Hessell v R when suggesting a further deduction for

such genuine remorse might be appropriate.4     Read as a whole your letter is a

statement of regret for the situation you and your family are now in.  It is not true and insightful remorse at all.  I make no deduction for that.

3      R v Jarden [2008] NZCA 69, [2008] 3 NZLR 612.

4      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

[20]     The other credit available to you is for your guilty plea.  I accept that your guilty plea is a tangible acknowledgement of your responsibility.   It is a relevant factor.   However, I am unable to accept Mr Lack’s submission that 25 per cent is appropriate and indeed he realistically effectively conceded that that was at the higher end. Your guilty plea came at a relatively late stage in the proceeding, a week before trial, and in the face of a strong prosecution case, given the tangible evidence. A reduction approaching 15 per cent is the most that can be said to be appropriate.

[21]     That leads to an end sentence of 11½ years.

[22]     That leaves the issue of the minimum non-parole period.  Neither Fogarty J nor Lang J imposed minimum non-parole periods on Mr Hung or Mr Chen.  In the circumstances and for consistency with your co-offenders I am not going to impose a minimum non-parole period in your case, albeit that one may have been warranted. You may regard yourself fortunate that one has not been imposed.

[23]     Mr Yim please stand.  On the charge of possession of methamphetamine for supply you are sentenced to imprisonment for 11½ years.   There is an order for

destruction of the methamphetamine.  Stand down.

Venning J