R v Yu

[2020] NZHC 2661

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-004-1873

[2020] NZHC 2661

THE QUEEN

v

CHIU TAN YU

Hearing:

9 October 2020

Appearances:

D B Dow for the Crown

D S Niven for the defendant

Date of sentence:

9 October 2020

SENTENCING BY PALMER J

Counsel/Solicitors:

D S Niven, Barrister, Auckland

Meredith Connell, Crown Solicitor, Auckland

R v YU [2020] NZHC 2661 [9 October 2020]

Introduction

[1]    I have said before, on too many occasions, that methamphetamine destroys lives and communities. Those dealing in methamphetamine cause, and profit from, human misery. That is why, in 2003, methamphetamine was reclassified as a class A drug in New Zealand. It “appeals to vulnerable populations, has a high physical and psychological dependence potential, and can lead to long-term physical and psychological effects”.1 It is one of the most dangerous of drugs, which is why the maximum sentence for importing methamphetamine into New Zealand is life imprisonment. Mr Yu Chiu Tan, aged 40, has pleaded guilty to one charge of importing methamphetamine. I convict him of that offence and I sentence him today.

What happened?

[2]    On 11 January 2019, Mr Yu arrived in New Zealand with five others from Sydney on a three-month visitor visa as a citizen of Taiwan. On 17 January 2019, a container arrived in New Zealand from Long Beach, California with three electric six- seater golf carts. It was sent by an unknown person overseas. The consignees were a Ms Goddard and a Mr Lee though Mr Lee was not in New Zealand. Two 9 mm pistols were concealed in the golf carts. Each golf cart contained eight batteries modified to look like normal batteries. Each battery contained two plastic boxes, the larger of which concealed a vacuum-sealed plastic bag of methamphetamine.

[3]    The total amount of methamphetamine concealed was 110 kilograms. The Crown estimates its value at $17.6 million, at a minimum, if sold wholesale by the kilo and estimates there being $136 million of societal harm that would have been caused by this methamphetamine. Customs removed the methamphetamine and replaced it with a substitute but only replaced one of the two boxes in each battery, not both.

[4]    Between 31 January and 13 February 2019, Mr Yu paid fees owing on the consignment with money from a co-defendant. He inspected and photographed the golf carts. Mr Yu rented a property in Glendene, Auckland, which the importer told

1      Misuse of Drugs (Classification of Ephedrine and Pseudoephedrine) Order 2003: Report of the Health Committee (April 2003) at 3.

the freight company would be the address for delivery. On 14 February 2019, Mr Yu bought tools and buckets from Bunnings.

[5]    On 15 February 2019, 15 minutes after the golf carts were delivered to the address he rented, Mr Yu arrived and removed the batteries from the carts, put them in his car and placed them into a storage unit his co-defendant had arranged. Between 19 and 21 February 2019, Mr Yu and his co-defendant had a number of coded conversations about the co-defendant being told by “Brother Lee” to see his “Aunty” and withdraw money and give it to Mr Yu. On 22 February 2019, Mr Yu removed three of the batteries from the storage unit and took them to another address in Flatbush he had rented the day before.  While there, he  had a telephone conversation with   Mr Lee who said it was “strange” there was only one plastic box within the batteries.

[6]    At 9.40 pm the Police and Customs executed a search warrant and found Mr Yu with two intact batteries, the opened third battery, weighing the replacement methamphetamine and packaging it into plastic zip-lock bags. In his van were the casing for the third battery and a money-counting machine. He was, as the Crown says, caught red-handed. Mr Yu initially admitted his actions and said the gloves, bags and buckets located in his room were to use to cut open the batteries and get out the methamphetamine.

Approach to sentencing

[7]    Sentencing is conducted for the purposes, and according to the principles, in ss 7 and 8 of the Sentencing Act 2002. In terms of the principles of sentencing, I have regard here to: the gravity of the offending and Mr Yu’s culpability; the seriousness of the offence compared with others; the need to ensure the sentence is consistent with other sentences for this type of offending; Mr Yu’s particular circumstances and background; and the requirement to impose the least restrictive outcome appropriate in the circumstances.

[8]    In terms of the purposes of sentencing Mr Yu, I have particular regard to: the need to hold him accountable for the harm his offending has done to the community; the need to promote in him a sense of responsibility for, and acknowledgement of, that harm; the need to denounce the conduct with which he was involved; and the need to

protect the community from his offending in future. A significant sentence of imprisonment is required to achieve those purposes as well as for any deterrent effect it may have.

[9]    The methodology of sentencing is first to set a starting point reflecting the seriousness of the offending, then to make adjustments for the offender’s personal circumstances and guilty plea and finally to stand back to check the sentence reflects the totality of the offending.

A starting point

[10]   Mr Yu, last year the New Zealand Court of Appeal provided guidelines for sentencing methamphetamine offenders in Zhang v R though the guidelines do not alter the requirement for the sentencing judge to exercise “flexibility and discretion in setting sentences”.2 In terms of seriousness of offending, this case clearly falls within the highest band, band five, which requires anything more than two kilograms of methamphetamine to attract a starting point between ten years and life imprisonment.3 Placement within a band will be affected by whether the role of the offender is lesser, significant or leading.4

[11]In subsequent cases, the courts have set starting points of:

(a)23 years’ imprisonment for Mr Yip, who had a mid-to-lower level leading role as an operative on the ground in importation of approximately 61 kilograms of methamphetamine, relaying instructions, overseeing extraction, and setting up supply transactions;5

(b)26 and a half years’ imprisonment for Mr Chiu, who had a significant role in securing the venue and equipment to extract 157 kilograms of imported methamphetamine and helping to transport the methamphetamine; but was less senior than others; 6

2      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [120].

3 At [125].

4 At [126].

5      Zhang v R, above n 2, at [300].

6      R v Leung [2019] NZHC 3299.

(c)21 years’ imprisonment for Mr Chiang and Mr Tan who were little more than willing workers involved in handling 109 kilograms of methamphetamine (I note these sentences are under appeal);7

(d)25 years’ imprisonment for Mr Cheung who knowingly provided critical assistance in the logistics of importing 176 kilograms of methamphetamine;8 and

(e)21 years’ imprisonment for Mr Tran who played a lesser role in collecting, moving and processing almost 110 kilograms of methamphetamine.9

[12]   Mr Dow, for the Crown, submits this offending sits amongst the highest amounts of methamphetamine imported into New Zealand and you played a significant role in the operation here on the ground. He submits you played a deliberate role with full awareness of the scale of the operation motivated by financial advantage. He submits there is no evidence of pressure or coercion or naivety and you were not far removed from those in the leading role and there is an inference you would be involved in collection of money and would receive more remuneration then. He submits your role was well into the significant category. He submits it is slightly less than that of Mr Yip’s role  in  importing  more  methamphetamine,  similar  to Mr Chiu’s role and greater than Mr Cheung’s role although that involved a greater quantity of methamphetamine. He submits  a  higher  starting  point  than  that  for Mr Tran is appropriate because he was not so involved in facilitating importation.  He submits a starting point of 25 years’ imprisonment should be adopted.

[13]   Mr Niven, on your behalf, accepts the offending falls into band five but submits your   role   could   be   described   as   being   between   significant   and   lesser.  He acknowledges there were some elements of your role that were significant but overall your role is better described as at the high end of lesser. He submits the Crown’s submitted starting point is clearly too high. That is because the tasks you

7      At [83]-[93].

8      R v Cheung [2017] NZHC 914.

9      R v Tran [2020] NZHC 2633.

performed did not require detailed knowledge of the goods, there is no evidence of your involvement in high-level planning, you took orders from the importer and were directed by others, you were pushed to the front of the high visibility aspects of the operation to take the risks, you did not give orders and you received a fixed though not insignificant sum for your involvement, paying for your holiday in New Zealand. He submits  your role was closer to the roles played by Mr Chiang and  Mr Tan.     He submits it is also similar to the role of a Mr Singh in another case, though the amount involved there, of less than five kilograms, means it is not particularly helpful.10 Mr Niven submits a starting point of between 16 and 20 years’ imprisonment, or possibly up to 21 years, should be adopted.

[14]   Mr Yu, I consider you were aware of the scale of the operation and you performed a significant operational role, but you were under the direction of others and did not direct others yourself. I do not accept you would necessarily have been involved in sale of the methamphetamine. But you were more than just a willing worker. You paid fees, rented the storage unit and property, transported the golf carts, obtained the equipment to extract the methamphetamine and extracted it. There is no evidence you were involved through coercion or motivated by addiction but no evidence you expected to share in the commercial profits. It follows that your role was at the lower-level of a significant role in terms of the Zhang categories. I consider it lies somewhere between Mr Yip’s more significant role (with regard to significantly more methamphetamine), and the roles of Mr Chiang, Mr Tan and Mr Tran. Accordingly, I consider a starting point of 22 years’ imprisonment is appropriate.

Adjustments for personal circumstances

[15]   Mr Yu, you were born and raised in Taiwan and have apparently been a reliable employee in a slaughterhouse there for 20 years. You have an interpreter today. I have seen a report from the Department of Corrections saying you have not previously been before the courts and that you appeared remorseful for your actions. It identifies your offending factors as anti-social associates and attitudes and says the charges appear indicative of your lifestyle and the influence of your peers. You told the Department your parents are disappointed in you, as well they might be.

10     Singh v R [2020] NZCA 211.

[16]   You have engaged in rehabilitation programmes and have been doing good work in the Mt Eden Corrections kitchen; I have seen your certificate. I have also seen letters submitted on your behalf, including letters of support from your mother and from a friend. They attest to your previous good character. Your mother says she feels painful and tortured inside, hates herself for not teaching her child well and apologises sincerely to all people in New Zealand. You have also written a letter expressing your remorse and regret and saying you deeply acknowledge the mistake you have made and are sorry to New Zealand society and your parents. You say you had no choice and were forced to commit this crime, though there is no evidence supporting that. You say you feel ashamed and will reflect on yourself every day in prison and try to give back to the community and public. I accept you have expressed remorse, though it is not clear to me how genuine that is given the deliberation involved in your offending.

[17]   Mr Dow, for the Crown, acknowledges you could justifiably receive discounts of: five to ten per cent for your lack of any previous convictions, for the fact you will serve your sentence in a foreign country; and up to 15 per cent for pleading guilty which was not as early as it could have been. Mr Niven does not take issue with the Crown’s five to ten per cent to appropriately take into account your lack of previous convictions, remorse, the fact you are serving your sentence far from home and the positive rehabilitative effect of ongoing family support. He submits a discount of a minimum of 20 per cent to a generous 25 per cent is justified for your guilty plea.

[18]   I agree a discount of two years, or just under ten per cent, is justified for all your personal factors including your lack of previous convictions, the impact on you of serving a sentence in a foreign country and your expression of remorse.

[19]   You first appeared in court on this charge on 25 February 2019. You pleaded guilty on 13 May 2020 in the face of a strong case against you. Your co-defendant’s trial will not occur until 2021. I take into account your change of counsel, language barrier and the potential impact of COVID-19 restrictions on the timing of your plea. I consider a discount of four and a half years’ imprisonment, or around 20 per cent, is justified for your guilty plea.

[20]   With discounts, your total sentence will be 15 and a half years’ imprisonment. Standing back and looking at the totality of your offending, I consider that is appropriate.

Should I impose a minimum period of imprisonment?

[21]   Under s 86 of the Sentencing Act 2002, I can impose a minimum period of imprisonment. That would be the period before you would be able to apply for release on parole. Otherwise, you would be eligible to apply for release after one third of your sentence which would be just over five years’ imprisonment. I can only impose a longer minimum period of imprisonment if I am satisfied the period otherwise applying would be insufficient for the purposes of holding you accountable, denouncing your conduct, deterring others or protecting the community. The minimum period must not exceed ten years’ imprisonment.

[22]   Mr Dow submits I should impose a minimum period of imprisonment of 50 per cent of the end sentence. He submits your knowing participation in substantial commercial-scale drug offending with potentially very serious social consequences requires that. Mr Niven submits no minimum period should be set because the Parole Board should be able to make a decision on parole. Alternatively, he submits a minimum period in the region of 40 per cent of your sentence would be sufficient to meet the needs of denunciation, deterrence and protection of the community.

[23]   In Zhang, where the end sentence was eight years and six months’ imprisonment, the Court of Appeal upheld a minimum  period of imprisonment of  50 per cent of the end sentence.11 The Court said the imposition of a lengthy minimum period should be  reserved for cases involving  “significant  commercial  dealing”.12   I consider this is such a case and that release after around five years would be insufficient to denounce and hold you accountable for your offending. I impose a minimum period of imprisonment of seven years or around 45 per cent of the end sentence.

11 At [263].

12 At [171].

Sentence

[24]   Mr Yu, please stand. I order the destruction of all goods, material and equipment seized by the Police and Customs under s 32 of the Misuse of Drugs Act 1975. For your conviction for importing into New Zealand 110 kilograms of methamphetamine, I sentence you to 15 and a half years’ imprisonment, of which you must serve a minimum of seven years without parole.

Palmer J