R v Yung

[2017] NZHC 895

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-004-5389 [2017] NZHC 895

THE QUEEN

v

CHUN KIT YUNG

Hearing:	5 May 2017
Appearances:	R McCoubrey for Crown G Vear for Defendant
Judgment:	5 May 2017

SENTENCING REMARKS OF LANG J

R v YUNG [2017] NZHC 895 [5 May 2017]

[1]      Mr Yung, you appear for sentence today after pleading guilty to a charge of importing methamphetamine into New Zealand.   The maximum sentence for that offending is life imprisonment.   You pleaded guilty after I gave you a sentence indication on 30 March 2017.1   You accepted the indication, and I therefore need to sentence you in accordance with it.

[2]     Your offending arises out of the importation of 2.81 kilograms of methamphetamine in May 2016.  The facts giving rise to the charge are set out in full in my sentence indication remarks.   Those remarks will be attached to these sentencing notes and will form part of them.  For that reason I do not propose to go through the facts of the offending again.

[3]      In my sentencing indication remarks, I explained why I considered a starting point of 14 and a half years imprisonment was appropriate.  I also said that I would provide a discount of two years 11 months to reflect guilty pleas entered shortly before your trial was due to begin.  This produced an end sentence of 11 years seven months imprisonment before taking into account other mitigating factors.

[4]      It is now necessary to  consider the extent to which  I should reduce the sentence further to reflect other mitigating factors.

[5]      In the cases of serious drug offending, personal circumstances count for less than they do in other areas of the criminal law.   Nevertheless, I am prepared to provide you with a further discount to reflect three factors.  The first of these is that you  have been  of  previously good  character.    I am  not  aware of  any previous convictions either here or in China.  You are, however, only 24 years of age so the credit to be given for this factor is not as great as it would be in the case of an older person.  I would apply a discount of four months to reflect that factor.

[6]      Another mitigating factor is that you will be obliged to spend several years in a New Zealand prison environment.  This means that a prison sentence will be more difficult for you than it would be in the case of a prisoner born and raised in New

Zealand.  You do not speak the English language and you are not familiar with New

1      R v Yung [2016] NZHC 608.

Zealand food, customs or culture.  For that reason you will be somewhat isolated in the prison environment and will find it more difficult to serve your sentence.  I make an allowance of seven months to reflect that factor.

[7]      The pre-sentence report identifies that you have a problem with gambling. This led to the money issues that persuaded you to become involved in the importation of methamphetamine.   I note that  you have completed two courses whilst in prison on remand to deal with your gambling issue.  I propose to make an allowance of two months to reflect that factor.

[8]      The pre-sentence report says that you expressed remorse “along with a sense of regret for the offending”.  That expression must be viewed against the fact that you maintain  you did not know that drugs were being imported.   You say you believed you were bringing illegal cigarettes into New Zealand.   I discussed this issue with your counsel at the sentence indication hearing.  I did so because I was concerned that you might be considering entering a guilty plea when you had a defence to the charge.   You counsel advised me that you nevertheless wished to continue with the sentence indication.

[9]      The entry of a guilty plea means I am required to sentence you on the basis that you knew you were importing drugs, because that is an essential element of the charge.  The relevance of this issue in the present context is that I do not consider I can give you any discount for remorse when you do not accept responsibility for the offending.   Remorse requires insight into both the nature of the offending and its effects.  The approach you have taken means that you demonstrate neither.  For that reason, I am not prepared to give you any credit for remorse.

[10]     It follows that I am prepared to give you a total credit of one year one month from the sentence indicated on 30 March 2017.  This brings the end sentence down to ten years six months.

[11]     In my sentence indication I also told you that, given your relatively limited role in the offending, I was prepared to make an order that you are required to serve

40 per cent of your sentence before being eligible to apply for parole.  In cases of

serious drug offending such as this, offenders are usually required to serve one-half of their sentence before being able to apply for parole.  In your case, I order that the minimum term of imprisonment will be four years one month imprisonment.

[12]     You are therefore sentenced to ten years six months imprisonment.  I make an order under s 86(1) of the Sentencing Act 2002 that you are required to serve a

minimum term of four years one month before being eligible to apply for parole.

Lang J

NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT

2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-004-5389 [2017] NZHC 608

THE QUEEN

v

CHUN KIT YUNG

Hearing:	30 March 2017
Appearances:	J Murdoch for Crown J Scott and G Vear for Defendant
Judgment:	30 March 2017

SENTENCE INDICATION OF LANG J

[1]      Mr Yung faces a charge of importing methamphetamine into New Zealand. The  maximum  penalty  for  that  offence  is  life  imprisonment.    He  now  seeks  a sentence indication in relation to that charge.

[13]     A sentence indication is an indication of the sentence that would be imposed in the event that Mr Yung was to enter a guilty plea shortly after the indication is given.  If he does not accept the indication, he will go to trial.  If he is found guilty, the Judge who presides at the trial will impose sentence based on his or her view of the facts as they emerge at trial.  The sentence indication would be of no relevance in that context.

The facts

[14]     The sentence indication is given on the basis of a summary of facts that has been accepted for today’s purposes.   This reveals that on 23 May 2016, the New Zealand Customs Service intercepted a package sent from China.  When the package was opened, it was found to contain boxes of face masks and marker pens.   The marker pens were subsequently found to contain approximately 513 grams of methamphetamine crystals.  The face masks contained foil packages that housed a total  of 2.3 kilograms  of liquid  methamphetamine.    In  all,  therefore,  the boxes contained methamphetamine having a total weight of 2.81 kilograms.

[15]     Customs and police officers then arranged to have the address to which the package was to be sent placed under surveillance.   Over the next few days, they observed Mr Yung at or around the address.   He had arrived in New Zealand on

16 May 2016 from Hong Kong on a visitor’s  visa.   Subsequent analysis of his cellphone showed that, throughout the period when he was in the vicinity of the address in question, he was in contact with his co-defendant Mr Man. Text messages sent between the two show that they were awaiting the arrival of a package at the address.   The package was delivered to the address on 26 May 2016.   The next morning  Mr  Yung  was  again  observed  maintaining  a  vigil  in  the  immediate proximity of the address.  He and his co-defendant were arrested at that point.

Starting point

[16]     The starting point for the sentence to be imposed is guided by the judgment of the Court of Appeal in R v Fatu.2   In that case the Court identified starting points to be adopted in respect of different forms of methamphetamine offending.  In cases involving the importation of more than 500 grams of methamphetamine, the starting point will be between 12 years and life imprisonment.

[17]     In selecting where the starting point should be placed, the Court must have regard to the offender’s overall role in the importation.   Mr Yung provided the services of what is commonly known as a “catcher”.   His role was to uplift the package of methamphetamine once it had been delivered to the address to which it was to be sent.  He was then to pass the package on to his co-defendant.  This would begin the distribution process in New Zealand.

[18]     The summary of facts makes it clear that Mr Yung had no managerial role in the  operation.    He  did  not  make  any  arrangements  in  relation  to  the  actual importation of the drug or the manner in which it was to be distributed.  Nor did he take steps such as the renting of premises, as is commonly done by catchers who receive importations of drugs from overseas.  Instead, his role was to maintain a vigil at the address to which the package was to be sent.

[19]     The Crown submits that a starting point of around 15 to 15 and a half years imprisonment is appropriate.  It relies on cases such as R v Nguyen and R v Wong in which the starting points of 15 and 16 years imprisonment were upheld in relation to similar offending, but involving lesser amounts.3    Reading those cases, however, I am satisfied that Mr Yung played a lesser role than the offenders in those cases. Nevertheless, the quantity of methamphetamine imported in the present case was greater than in the other cases.

[20]     I bear in mind the fact that Mr Yung would be entering his guilty plea on the basis that he was wilfully blind to the contents of the package.  Having taken that

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

3      R v Nguyen [2009] NZCA 239; R v Wong [2009] NZCA 332.

factor into account, however, I consider that a starting point of 14 and a half years imprisonment is appropriate.

Aggravating factors

[21]     It is not necessary to add an uplift to reflect aggravating factors personal to Mr Yung because, to the best of the Court’s knowledge, he has no previous criminal convictions.

Mitigating factors

[22]     The only mitigating factor in respect of which I would indicate a discount at this stage is that for a guilty plea.  The guilty plea comes at a very late stage because Mr Yung’s trial is due to commence on 3 April 2017.

[23]     Ordinarily, a guilty plea at such a late stage would not attract a discount of more than 15 per cent.  The Crown is prepared to accept a discount of 20 per cent, however, and I am prepared to be guided by the Crown in this responsible.  I would therefore apply a discount of 35 months, or two years 11 months, to reflect a guilty plea.  This would produce an end sentence of 11 years seven months imprisonment before taking into account other mitigating factors.  These might include remorse, good character and the fact that Mr Yung will find it more  difficult to serve a sentence of imprisonment than would otherwise be the case because he will be a prisoner in a foreign land in which he does not speak the language.  I would not be prepared to indicate a discount in respect of those issues at this stage, because I would first need to see a pre-sentence report.

Minimum term of imprisonment

[24]   The only other issue is whether I should impose a minimum term of imprisonment.   Ordinarily, an offender who serves a sentence of two years imprisonment or more will be eligible to apply for parole after serving one-third of his or her sentence.  The Court has the power to increase that minimum term if it is satisfied that the principles referred to in s 86 of the Sentencing Act 2002 could not be met by the usual parole provisions.

[25]     In cases of serious drug offending, issues of general deterrence arise.   In virtually every case of serious class A drug offending the criteria in s 86 will be met. In particular, it is necessary to ensure that the sentence serves as a warning to others who  might  be  prepared  to  travel  to  New  Zealand  from  overseas  to  carry  out offending such as this.   For that reason, as Ms Vear acknowledges on Mr Yung’s behalf, the courts in this country often impose a minimum term of 50 per cent in cases of serious drug offending.

[26]     I am satisfied that a minimum term of imprisonment is required in the present case to reflect principles of general deterrence.  However, I consider that a departure from the usual 50 per cent term is warranted.  This reflects the very limited nature of the role that Mr Yung played in this particular importation.  For that reason, I would impose a minimum term requiring Mr Yung to serve 40 per cent of any end sentence

that the Court might impose.

Lang J

Solicitors:

Crown Solicitor, Auckland