R v Yau [2015] NZHC 2939 (24 November 2015)

Last Updated: 5 June 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-004-003100 [2015] NZHC 2939

THE QUEEN

v

_{KAKIT YAU}

Hearing:	24 November 2015
Appearances:	D Johnstone for Crown L D Burns for Prisoner
Judgment:	24 November 2015

_{SENTENCING NOTES OF GILBERT J}

Solicitors:

Meredith Connell, Auckland

_{L D Burns, Auckland}

R v YAU [2015] NZHC 2939 [24 November 2015]

Introduction

[1] Mr Yau, you appear for sentence on one charge of supplying methamphetamine on or about 22 March 2015 and one charge of possessing methamphetamine for the purposes of supply on or about 25 March 2015. The maximum penalty for these offences is life imprisonment.

The facts

22 March 2015 - supply

[2] You are a Hong Kong national living in New Zealand. You first came to New Zealand on a student visa in 2010. You are an only child and have no family in New Zealand. Since your arrival in New Zealand, you have returned to Hong Kong at the end of each year to visit your parents.

[3] Four or five years ago you met a person in Hong Kong who sells drugs. Late last year while on a visit to Hong Kong, this person asked you whether you knew of any people in New Zealand who might be interested in buying methamphetamine. You agreed to become involved as a distributor of methamphetamine in New Zealand.

[4] Your subsequent offending came to the attention of the police during the course of Operation Wand, an investigation into large scale importation and supply of methamphetamine.

[5] On 17 March 2015, after being advised by your contact that a consignment of methamphetamine had arrived in New Zealand, you told him that you had found a buyer interested in purchasing four kilograms of methamphetamine at $190,000 per kilogram. On 22 March 2015, you arranged for three samples of methamphetamine to be delivered to this buyer.

[6] The following day, you reported to your contact in Hong Kong that two of the samples were found to be “wet” and asked if further “dry” samples could be supplied. You indicated that there were two buyers, one of whom you described as

being “very professional” and wanting to conduct “lab tests”. You advised that if the samples were satisfactory, this buyer would purchase the methamphetamine immediately.

[7] You had a number of conversations with your contact in Hong Kong concerning the procedure to be followed when supplying the order.

[8] On 25 March 2015, before any further supply occurred, Operation Wand terminated and you admitted your involvement to the police.

25 March 2015 – possession for supply

[9] On 23 March 2015, you discussed the possible supply of methamphetamine at $220,000 per kilogram to another buyer who required four or five kilograms of methamphetamine a week. Following negotiations between you, your contact in Hong Kong and the buyer, it was agreed that you would initially supply one kilogram of methamphetamine for $230,000 and then a further kilogram in two

500 gram lots a few days later, after the buyer had arranged the rest of the money.

[10] You were apprehended by the police shortly after you took possession of the first kilogram of methamphetamine for the purposes of on-supply on 25 March 2015. The methamphetamine was contained in two plastic snap lock bags concealed beneath other items in a carry bag.

Starting point

[11] The quantity of methamphetamine involved, at least one kilogram, has a street value of approximately $1 million. You played an important role in that you found the buyers, negotiated pricing and arranged collection and delivery. However, the offending took place over a short period and, because of police intervention, only a small quantity of methamphetamine was actually supplied.

[12] The Crown submits that your offending falls in the middle of band 4 in

R v Fatu for which starting points between ten years and life imprisonment are

appropriate.¹ That is a guideline decision of the Court of Appeal. The Crown submits that a starting point of 13 to 15 years is warranted in this case.

[13] Mr Burns accepts that the amount of methamphetamine involved places you in band 4 of Fatu. However, he submits that you should be placed at the bottom of the band because you served only as a middleman between the buyer and the overseas contact who controlled the supply. He argues that a starting point of ten years’ imprisonment should be adopted. That is the very bottom of the band.

[14] You played an important role in locating buyers and arranging pricing, collection and delivery of a very significant quantity of methamphetamine. Although I accept that your offending falls towards the lower end of Fatu, band 4, I do not consider that it can be seen as being at the very bottom of that band. Having regard to the starting points adopted in a number of broadly comparable cases, I consider that the appropriate starting point is 12 years’ imprisonment.²

Personal factors

[15] You agreed to become involved in the supply of significant commercial quantities of methamphetamine purely for personal gain. The probation officer reports that you have demonstrated a sense of entitlement and appear to be indifferent to your role in the offending and the wider implications of becoming involved in the distribution of methamphetamine, a particularly addictive drug that causes great harm in our community. The probation officer nevertheless assesses you as having a low risk of re-offending.

[16] I have read the letter that you have presented to me today for the purposes of sentencing and I note that your involvement in this activity seems to have been in part caused as a result of your isolation from family and friends in New Zealand, and I note that you consider that you now do understand the very harmful effects of

_{methamphetamine and regret very much the role that you played in this.}

¹ _{R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72.}

² Wei v R [2012] NZCA 54; R v van Niekerken [2012] NZHC 3546; R v Tarm [2015] NZHC 930.

[17] You were 24 years of age at the time of this offending. You came to New Zealand in 2010 as I have said, and you completed your secondary schooling in Rotorua. You then studied from 2012 to 2014 at AUT University and graduated with a Bachelor of International Hospitality Management.

[18] I take into account that you were still at school when you came to New Zealand and have not had the advantage of family support in New Zealand. As I have said, this may have been a factor that led you into this offending.

[19] You have no relevant previous convictions. The Crown accepts that you are entitled to a modest credit for previous good character, as was approved by the Court of Appeal in Wei v R.

[20] I also take into account that you were subject to a 24 hour curfew from

28 March 2015 until you were convicted, a period of seven months.

[21] I allow a discount of 15 months to take account of these personal factors.

Guilty plea

[22] You immediately admitted your involvement to the police after being apprehended. However, you did not enter a guilty plea at the first available opportunity and therefore do not qualify for the full 25 per cent discount that would have been available had you done so. Taking into account the overwhelmingly strong case against you, I consider that a discount of 20 per cent should be allowed for your guilty plea.

[23] This results in an end sentence of eight years and seven months’

imprisonment.

Minimum period of imprisonment

[24] Minimum periods of imprisonment are commonly imposed for serious drug offending. In my view, a minimum period of imprisonment equating to 50 per cent of the end sentence is required to meet the statutory purposes identified in s 86(2) of

the Sentencing Act 2002, particularly those of denunciation, deterrence and protection of the community in a case such as this involving large scale commercial dealing in methamphetamine.

Sentence

[25] Mr Yau, would you please stand. On each of the charges of supplying methamphetamine and possession of methamphetamine for the purposes of supply I sentence you to a term of imprisonment of eight years and seven months and order that you serve a minimum period of imprisonment of four years and three months.

_{These sentences are to be served concurrently.}

M A Gilbert J