R v Yuen

[2016] NZHC 571

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2015-004-003038

[2016] NZHC 571

THE QUEEN

v

WEI CHUEN YUEN

Appearances:	E L Woolley for Crown J D Munro for Prisoner
Date:	5 April 2016

SENTENCING NOTES OF COURTNEY J

R v YUEN [2016] NZHC 571 [5 April 2016]

[1]    Wei Chuen Yuen, you are appearing for sentence today having pleaded guilty to one charge of importing methamphetamine for which the maximum penalty is life imprisonment,1 one of possession of methamphetamine for supply the maximum penalty for which is life imprisonment,2 and one of conspiracy to supply methamphetamine for which the maximum penalty is 14 years’ imprisonment.3

[2]    These charges followed a Customs investigation into a shipment labelled as 40 boxes of queue barriers that arrived at Auckland Airport from China on 13 February 2015. The boxes contained solid bases for the queue barriers and hollow metal pipes to be inserted into the bases. The shipment was forwarded to a logistics company prior to delivery.

[3]    On 1 March 2015 you and your wife, Fung Sze, arrived in New Zealand from Hong Kong. You are both Hong Kong Chinese nationals. You told Customs officers you had come for a holiday. You rented properties in Auckland, including one in Stonefields, Mount Wellington.

[4]    Soon after you arrived your wife arranged payment of the storage fees and delivery of the shipment to the Stonefields property. On 13 March 2015, you and  Ms Sze went to a shop in downtown Auckland where you purchased a drill. While you were doing that the shipment was being examined by Customs officers, who found 40 kilograms of methamphetamine concealed in the queue barrier poles in four of the 40 boxes. They removed the majority of the drugs and substituted a placebo.

[5]    On 22 March 2015 Ms Sze returned to Hong Kong and you stayed at the Stonefields property. The next day you took delivery of the shipment, extracted what you believed to be methamphetamine and re-packaged it into 40 snaplock bags. The day after that, 24 March 2015, you met another man, Jinsong Feng,4 at a café and handed him a bag that was later found to contain one kilogram of what you and he believed to be methamphetamine but which was, in fact, mostly placebo. Police

1      Misuse of Drugs Act 1975, s 6(1)(a).

2      Misuse of Drugs Act 1975, s 6(1)(f) and 6(2)(a).

3      Misuse of Drugs Act 1975, s 6(1)(c) and 6(2)(a).

4      Ms Sze and Mr Feng are both facing charges arising from these events and their trials are scheduled to begin in the week beginning 23 May 2016.

searched Mr Feng’s residence in Royal Oak and found the one kilogram bag containing the white crystalline placebo. They also found snaplock bags, scales and other items associated with methamphetamine dealing.

[6]    Later the same day the Police searched your property at Stonefields and found three backpacks containing 39 snaplock bags filled with a crystalline substance containing mostly placebo and some methamphetamine. The total weight was approximately 39 kilograms. They also found scales, snaplock bags and handwritten documents recording the weight of each bag.

Sentence

[7]    The objective in sentencing in cases of commercial scale importation and dealing in methamphetamine is deterrence and denunciation.5 The relevant principles to be applied include the need to take into account the gravity of the offending, the offender’s culpability and the seriousness of the type of offence as indicated by the maximum penalty.

[8]    It is evident from the facts that you accepted when you entered your guilty plea that the methamphetamine you imported was a part of a very large commercial operation. It was well planned and typical of many such importations that New Zealand courts see. You were by no means the mastermind of this importation and not a prime mover, but were nevertheless crucial to its success. You played a critical role by taking delivery of the shipment, extracting the methamphetamine or what you thought to be methamphetamine and re-packing it, then delivering it to Mr Feng for distribution. It is suggested that you had limited knowledge of the quantity of the methamphetamine that would be imported and its ultimate value but I do not accept that. You knew you were involved in drugs and you knew that you would be paid the equivalent of about NZ$190,000, and if you did not know exactly how much methamphetamine you were importing before you drilled the holes in the pipes then you must at least have known when you extracted the amounts and put them into the bags.

5      Sentencing Act 2002, ss 7 and 8.

[9]    I begin the sentencing process by finding the appropriate starting point for the most charge of importing methamphetamine. The Court of Appeal has given sentencing judges guidance for such cases in its decision R v Fatu.6 In that case the appropriate starting point is generally reached by reference to the amount of the importation, the nature of the offending and the culpability of the offender. In cases involving very large commercial quantities, being 500g or more, the starting point is somewhere in the range of 12 years to life imprisonment. In this case Ms Woolley, for the Crown, has submitted that an appropriate starting point would be in the range of 25 – 30 years, whereas your lawyer contends for a starting point between 20 and 22 years.

[10]   In pinpointing the appropriate starting point within the available range I have considered sentences imposed in other similar cases. In particular, I note the Court of Appeal’s comments in R v Chen which involved a significantly greater amount of methamphetamine, approximately 96 kilograms.7 The Court of Appeal considered that the relevant principles of the Sentencing Act required it to “convey the message that large scale importation and sale of methamphetamine into and in New Zealand will attract a stern maximum penalty”. Those involved in the importation and distribution of the drugs in that case, undertaking tasks similar to what you did were sentenced on starting points of 25 years. However, I am conscious that there are differences. The defendants in Chen undertook a somewhat wider range of tasks and of course the amount of the methamphetamine was very much greater.

[11]   I have also considered the more recent case of R v Kam, which concerned the importation of 60.9 kilograms of methamphetamine.8 A starting point was taken of 25 years for the defendants who took delivery of the drugs in New Zealand. I refer, too, to R v Connor, in which a starting point of 18 years was taken for an importation of approximately 4.3 kilograms of methamphetamine by a defendant whose role was to monitor the shipment, direct the collection and provide support in transferring the drug to the local distributor. I have also considered the cases that your lawyer has referred to but because they mostly involve much lower amounts of methamphetamine they are not as helpful.

6      R v Fatu [2006] 2 NZLR 72.

7      R v Chen [2009] NZCA 445.

8      R v Kam [2016] NZHC 110.

[12]   I am satisfied that the offending in this case is not quite at the level in Chen and because of that and because of the fact that the amount of the drug imported was much less than either Chen or Kam I consider that a starting point of less than 25 years is appropriate. I am conscious also that you face three separate charges, all very serious, so that any sentence must reflect the totality of the offending. I therefore take a starting point of 22 years on the importing charge and increase it by one year to reflect the overall offending, which makes a starting point of 23 years.

[13]   From this starting point I must recognise the mitigating factors that exist in this case. You are now 58 years old. Before this offending you lived in Hong Kong with your wife and your step children and you worked in the construction industry and as a taxi driver. You have no previous convictions. You speak little English. (I record here that the sentencing has involved an interpreter in court to assist you in understanding what I am saying).

[14]   In this country Judges have frequently emphasised that the personal circumstances of a drug offender are of limited relevance because of the seriousness of this kind of offending and the harm that it does to our communities. Moreover, although a person in your situation will find prison life in a foreign country difficult, more difficult than a local person, it is important to send a message to those contemplating offending here that that is the risk they take, of being imprisoned far from home.

[15]   In your case, however, I accept that the fact you speak very little English will make prison life particularly hard for you. I also accept your offending will greatly affect your family, who will be left to fend for themselves. Your wife and your stepson and stepdaughter have written letters in your support. They speak of your kindness, your long devotion to them and your constant support, especially of your wife and stepson who both have medical conditions that mean they cannot work. Your wife has serious mental health issues and your stepson has a serious physical medical condition. I note that your wife is also about to face trial on similar charges. If she is convicted she, too, will find prison life very hard. If she is acquitted she worries about what life will be like in Hong Kong for a poor, old woman.

[16]   I note, too, at this point the explanation in your letter to me which I accept, that you were motivated to become involved in this offending to try and help your family, not for personal greed to assist yourself. I am prepared to recognise these aspects and your previous good record and the efforts that you have made in prison to adjust your life and undertake rehabilitation courses. I allow a discount for these factors of 5 per cent which brings the sentence to 20 years 10 months.

[17]   From that you are entitled to a 25 per cent discount for your early guilty plea which makes a final sentence on the importing charge of 15 years seven months. There will be a concurrent sentence of the same length on the charge of possession for supply. There will be a concurrent sentence on the conspiracy charge of 12 years9 so that the final sentence is 15 years seven months.

[18]   The Crown has asked me to impose a minimum period of imprisonment of half of that sentence. I am able to impose that if I consider that the usual minimum period of imprisonment of one third would be insufficient to denounce and deter this kind of offending.10

[19]   The importation of methamphetamine into New Zealand is regarded with enormous concern by New Zealand courts. In this case, which involves an extremely large quantity of methamphetamine, a minimum period of imprisonment of 50 per cent, would in my view ordinarily be required. But I do accept your lawyer’s submissions on this point. I accept that you are unlikely to offend again. I accept that you have extremely limited English and that prison life will be very difficult for you. I accept that you were not the major player in this importation even though you did play a critical role. I therefore do not impose a minimum period of imprisonment in this case. Thank you, you can stand down Mr Yuen.

P Courtney J

9      Taking the approach discussed in R v Haarhaus HC Auckland CRI 2007-004-018646, 24 July 2009 at [39] and applied in R v Reihana HC Whangarei CRI 2010-027-143, 12 December 2011.

10     Sentencing Act 2002 s 86(2).