Sun v Police

[2015] NZHC 414

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000428 [2015] NZHC 414

BETWEEN

TAK YIU SUN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	9 March 2015
Appearances:	A G Speed for Appellant Z R Hamill for Respondent
Judgment:	10 March 2015

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 10 March 2015 at 12.00 noon

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

SUN v NZ POLICE [2015] NZHC 414 [10 March 2015]

Introduction

[1]      Tak Yiu Sun pleaded guilty to one charge of possession of methamphetamine for supply, one of equipment for the manufacture of methamphetamine and one of possession of precursor substances.   Judge Treston sentenced him to an effective sentence of two years 10 months’ imprisonment.1    Mr Sun appeals the sentence on the grounds that the starting point taken was too high and the discounts given for time on EM bail, efforts at rehabilitation, remorse and good character were not high enough.

Starting point

[2]      The offending arose from the execution of search warrants on two addresses occupied by Mr Sun.  At one address the Police found a plastic bag containing two sets of scales, a bowl and scoop and some 50 sachets that had been used to package methamphetamine.  All of these items contained methamphetamine residue.  At the same house the Police found 13 grams of methamphetamine in a plastic bag and a separate bag containing 1.5 grams of methamphetamine.  They also found $4,850 in cash.  A further $2,000 in cash and another set of scales were found in Mr Sun’s car. At the second address the Police found precursor substances and equipment, namely hydrochloric acid, caustic soda, an element, a steam distiller and snap-lock bags.

[3]      There was no dispute that the offending fell within band 2 of R v Fatu,2 attracting a starting point of between three and nine years’ imprisonment.  Although not entirely clear, when read in their entirety the Judge’s notes suggest that he took a starting point of three-and-a-half years on the possession charge and imposed an uplift of six months to reflect the totality of the offending.

[4]      Mr Speed accepted that a starting point of three-and-a-half years was within the available range.  His concern was with the extent of the uplift, imposed to reflect the totality of the offending, which the Judge treated as having a commercial flavour. Mr Speed submitted that there was insufficient evidence from which to conclude that

Mr Sun had the intention to manufacture methamphetamine.  Rather, his possession

1      R v Sun DC Auckland CRI-2014-092-003078, 1 December 2014.

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

of the equipment and precursor chemicals was consistent with his claim that he was holding them for others.  None of the precursor substances were essential ingredients that were difficult to obtain but, rather, the more common substances that were readily available.

[5]      I do not think that there can be any criticism of the Judge’s approach on the starting point and uplift. A starting point of four years would have been within range for the 14.5 grams in Mr Sun’s possession even before taking account of the other offences.   Nor could the possession of the equipment and precursor substances be viewed as a minor matter.  The items that Mr Sun held would have contributed to a significant extent to any manufacturing operation and I see no error in the Judge’s approach to an uplift to reflect this aspect.

Discounts

[6]      Mr Sun spent 22 days in custody, four-and-a-half months on EM bail and slightly over three months at Odyssey House.  His time at Odyssey House seems to have been spent well, progressing to level 2 during the period he was there, despite initial concerns about his commitment.  On the day of sentencing Mr Sun provided a letter that expressed his remorse.

[7]      The Judge gave a 25 per cent discount for Mr Sun’s guilty plea.  There is no complaint about that.  The Judge then allowed two per cent for being on EM bail and a further two per cent for his efforts at rehabilitation but nothing further for remorse. The result  was  a total discount  of 29  per cent.   The Judge’s  assessment  of an appropriate discount for time on EM bail and rehabilitative efforts was influenced by

the Court of Appeal’s decision in R v Wang,3  with the Judge noting that personal

circumstances bear little weight.

[8]      Mr Speed submitted that whilst the Court of Appeal has made it clear that personal circumstances are subordinate to issues of deterrence and denunciation on drug sentencing there were circumstances in which such matters could be taken into

account.  I accept this submission.  Whilst personal circumstances are subordinate to

3      R v Wang [2014] NZCA 409.

deterrence and denunciation there may be cases in which it is right to recognise personal  circumstances,  though  in  the  context  of  drug  offending  this  will  most usually be limited to efforts at rehabilitation.   This aspect is significant because, ultimately, the community benefits when drug offenders are prepared to genuinely tackle the issues that led to their offending.

[9]      The present case is one in which Mr Sun’s efforts towards rehabilitation should have been accorded greater recognition.  Mr Sun has no previous drug related convictions  and  only one other conviction  (driving with  excess  breath  alcohol). Because of this and his progress at Odyssey House he was assessed as being at low risk of re-offending, though that risk was said to increase if he failed to complete the Odyssey House programme.  Commensurate recognition of Mr Sun’s effort required something more than a two per cent discount which, on any view, is to be regarded as merely nominal.   I consider that a 15 per cent reduction would have been reasonable.

[10]     The issue of time spent on EM bail is not so clear.   That is an evaluative matter and given the relatively short time on EM bail it could not be said that the Judge erred in giving the discount he did, minimal though it was.   Nor would I interfere with the Judge’s conclusion on remorse.  It was a matter for the Judge to determine whether the apparent remorse in Mr Sun’s letter warranted any additional discount and his view on that aspect is not obviously incorrect.  Similarly, Mr Sun’s previous conviction, thought relatively minor, did not allow for a discount to recognise good character.

[11]     The result would be a sentence of two years four months.  Although Mr Sun seeks to have his sentence reduced to a point where home detention could be considered I am not satisfied that any greater discount could be justified.  Ideally Mr Sun will be released subject to conditions that ensure he continues his rehabilitative efforts.

Result

[12]     There was  no  error in  the starting point  taken  or in  the uplift  imposed. However, the Judge did  err in his approach  to  the discount for efforts towards rehabilitation.   The two per cent discount allowed was too low.   A 15 per cent

discount would have been appropriate.  This would have brought the total discount

(including the allowance for a guilty plea) to 42 per cent.

[13]     The sentence of two years ten months is therefore quashed and substituted with a sentence of two years four months.

P Courtney J