Srinongkung v Police HC Wellington CRI 2010-485-92

[2010] NZHC 2332

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2010-485-92

BETWEEN  YINGPRATTANA SRINONGKUNG Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         12 October 2010

Counsel:         B Crowley for Appellant

M W Snape for Respondent

Judgment:      15 October 2010

JUDGMENT OF MILLER J

[1]      Ms Srinongkung appeals against concurrent sentences of two  years three months imprisonment for importing pseudoephedrine and two years for possessing it, maintaining that she ought to have been sentenced to home detention.

[2]      The facts are that Ms Srinongkung was approached by an acquaintance in Thailand who suggested she could make easy money by importing drugs.   She agreed.  On 25 October 1999 a package containing 2.16kg of a powder containing pseudoephedrine was intercepted at the International Mail Centre.  The summary of facts recorded that it might produce between 437.1 and 611.9gm of methamphetamine, with a street value of between $437,000 and $611,000.

[3]      The   package   was   delivered   to   an   address   and   thence   taken   to Ms Srinongkung’s place of work, a brothel called Asian Haven.   She checked the contents,  then  contacted  the  person  in  Thailand,  who  instructed  her  to  fly  to

Auckland with it.  She was apprehended after checking in at the airport.

YINGPRATTANA SRINONGKUNG V NEW ZEALAND POLICE HC WN CRI 2010-485-92  15 October

2010

[4]      She is a Thai national, aged 25, who emigrated to New Zealand in 1999 and now has permanent residency.  She is married to a New Zealand citizen and has two young children.   There are no previous convictions.   She admitted that she knew what the drug was for and was co-operative with the police.  She pleaded guilty at the first reasonable opportunity.  There has been considerable delay in brining her appeal, but no point is taken about that.

[5]      In interview with the probation officer she exhibited no remorse, her only concern being for her ability to support her family.  Home detention was canvassed but inquiries into the proposed address were incomplete at the time of sentencing.

[6]      By reference to the leading case, R v Ho, the Judge adopted a starting point of four  years  imprisonment.[1]    That  was  based  on  the  drug  being  Class  C  and Ms Srinongkung not being an instigator of the offending.  A reduction to 40 months was made for her good previous record, and a 33 per cent discount was then given for the guilty pleas, resulting in the end sentence for the lead offence of importing the drug.  The Judge examined R v Ha, a case in which home detention was imposed for attempting to import pseudoephedrine, but that was only an attempt and there was significant co-operation with authorities, while Ms Srinongkung had actually participated in importing the drug and then taken possession of it.[2]

[1] HC Auckland CRI 2005-092-567, 12 April 2005.

[2] [2010] BCL 32.

[7]      On appeal, Ms Srinongkung’s case is that the sentence ought to be changed to home detention.  She argues that home detention would allow her to get her life back on track, with a view to regaining the care of her children.   She has served six months of the sentence, so she has suffered a very significant penalty.

[8]      The principal difficulty with this submission is that it is not right to reduce an otherwise appropriate sentence of imprisonment to bring it within the two-year maximum for which home detention might be substituted.

[9]      Further, the sentence was if anything lenient.  Deterrence and denunciation are the principal sentencing considerations in offending of this kind, as the Judge

recognised.   From time to time leniency is extended to drug offenders, usually addicts who have made a substantial commitment to rehabilitation, but this is an all too familiar case of importing for profit.  Unquestionably her imprisonment is hard on her family, but her personal circumstances can carry little weight.

[10]     If matters ended there, the appeal would be dismissed.  However, Mr Snape has properly drawn my attention to a jurisdictional problem.   Ms Srinongkung pleaded guilty before committal, so she was convicted summarily notwithstanding that she had been proceeded against indictably.  Under s 6(3) of the Misuse of Drugs Act 1975 the maximum penalty was one year’s imprisonment.   There is room to debate whether the District Court may impose a sentence up to the maximum on

indictment in these circumstances;  I refer to the discussion in Mathias.[3]   However,

from my perspective the position was settled by the judgment of the Court of Appeal in R v Hoe.[4]     The District Court Judge was without jurisdiction to impose the sentence that she did.  Mr Snape acknowledged that she was misled by the Crown, which had submitted that a trial warranted Judge may sentence up to the maximum penalty.   That appears to have been based on the former commentary to Adams, since corrected.

[3] Misuse of Drugs, Wellington, Brookers, 1998 at [1106].

[4] [2001] 2 NZLR 633.

[11]     It is not within my power in turn to quash the sentence and substitute a sentence of two years and three months imprisonment.  Section 121 of the Summary Proceedings Act cannot I think reasonably be read as allowing me to pass a sentence that the District Court could not.

[12]     Nor would there be any point in remitting the matter to the District Court if that Court could not decline jurisdiction and remand Ms Srinongkung to the High Court for sentence under s 28G of the District Courts Act.  It is necessary not only to quash the sentence but also to quash the conviction, so that when she appears in the District Court it will not be on the basis that she is already summarily convicted. That Court will then have the option of declining jurisdiction or sentencing her

pursuant to s 6(3) of the Misuse of Drugs Act.   Following Scully v Police, I am satisfied that jurisdiction exists to take that course.[5]

[5] HC Invercargill AP 28-02, 6 December 2002.

[13]     Accordingly,  Ms  Srinongkung’s  sentence  and  her  conviction  are  both quashed.  She is remanded to appear in the District Court at Wellington on Friday,

22 October 2010 for that Court to determine whether to accept or decline jurisdiction and, if the latter, to remand to this Court for sentence.

[14]     I appreciate that Ms Srinongkung has already served a significant part of her sentence, but having regard to her previous guilty plea and the views expressed earlier in this judgment, it would not be right to admit her to bail.  The remand will be in custody.

Miller J

Solicitors:

Luke, Cunningham & Clere, Wellington for Respondent