Lu v R [2011] NZCA 151 (13 April 2011)

Last Updated: 20 April 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA485/2010 [2011] NZCA 151

BETWEEN SAY TSUONG LU Appellant

AND THE QUEEN Respondent

Hearing: 10 March 2011

Court: Ellen France, Courtney and Clifford JJ

Counsel: J J Brandts-Giesen and A M McCormick for the Appellant K A L Bicknell and A D King for the Respondent

Judgment: 13 April 2011 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

REASONS OF THE COURT
(Given by Clifford J)

Introduction

[1] Mr Lu was convicted at trial on one charge of conspiring to supply the Class A controlled drug methamphetamine and on one representative charge of supplying methamphetamine. Judge Farish, the trial Judge, sentenced Mr Lu to twelve years imprisonment and imposed a minimum period of imprisonment (MPI) of seven years. Mr Lu appeals against his conviction and sentence.

Facts

[2] Mr Lu’s convictions followed a Police investigation into a conspiracy organised by Dean Waka Nathan, then a serving prisoner at Christchurch Men’s Prison. Mr Lu had met Mr Nathan when he had also been serving a term of imprisonment in Christchurch Men’s Prison, for earlier methamphetamine supply offending.
[3] Mr Nathan and six other conspirators pleaded guilty to conspiring to supply methamphetamine. In broad terms, the conspiracy involved Mr Nathan, through the agency of his co-conspirators, obtaining methamphetamine in Auckland from Mr Lu for delivery to and supply in Christchurch. One of these co-conspirators, a Ms Hurring, entered her plea on the basis she had travelled to Auckland and actually obtained methamphetamine on at least seven occasions and returned with that methamphetamine to Christchurch.
[4] Mr Lu stood trial with one other alleged co-conspirator who had also pleaded not guilty.
[5] The Crown case against Mr Lu was that he was able to source commercial amounts of methamphetamine in Auckland. Ms Hurring was the “mule”. She obtained methamphetamine from Mr Lu.
[6] The case against Mr Lu was circumstantial, and relied upon intercepted communications between Mr Lu and each of Mr Nathan and Ms Hurring and between Mr Nathan and Ms Hurring and other co-conspirators.
[7] Those intercepted communications related particularly to an occasion in and around 18 January 2009 when Ms Hurring organised to purchase ten ounces of methamphetamine for $130,000 from Mr Lu. Mr Nathan was short $30,000. The arrangement was that Mr Lu would supply the methamphetamine on the basis of $100,000 cash, and $30,000 on credit or “tick”. Ms Hurring travelled to Auckland with $100,000, but the transaction was aborted because both Ms Hurring and Mr Lu became suspicious that the Police were aware of their activities. Intercepted calls and text messages showed Mr Lu and Ms Hurring discussing the proposed transaction, and those concerns.
[8] In a pre-trial ruling on 31 May 2010 the Judge had ruled admissible as propensity evidence Mr Lu’s previous convictions (for methamphetamine supply). The Crown relied on that evidence to negate the defence that the intercepted phone conversations between Mr Lu and Ms Hurring related to loan arrangements, rather than drug deals.
[9] Mr Lu appeals against his conviction on the basis that that propensity evidence was improperly admitted.
[10] Ms Hurring was sentenced by Judge Moran following her guilty plea to eight years imprisonment, with no MPI. Mr Lu appeals against his sentence first on the basis of what he says is the improper disparity between the sentence imposed by Judge Farish on him and the sentence imposed by Judge Moran on Ms Hurring.
[11] At sentencing Judge Farish concluded, based on the representative charge of supply on which the jury returned a verdict of guilty and the evidence she had heard at trial, that Mr Lu was the sole supplier of methamphetamine to Ms Hurring, and had therefore supplied Ms Hurring on seven trips that Ms Hurring had made to Auckland prior to the aborted transaction in January 2009. Between seven and eight ounces of methamphetamine, worth close to $100,000, had been supplied by Mr Lu to Ms Hurring on each trip.[1]
[12] Mr Lu appeals against his sentence secondly on the ground that that factual conclusion was not one which was open to the Judge on the evidence in his trial, and that therefore the sentence of 12 years imposed on him is manifestly excessive.
[13] Finally, Mr Lu also appeals against his sentence on the basis that the MPI of seven years imposed by the Judge was itself manifestly excessive.

The appeal against conviction

The propensity evidence

[14] Mr Lu’s explanation of the intercepted communications between Ms Hurring and him, which he accepted had occurred, was that he operated a money lending business, and that a loan from him to Mr Nathan was being discussed.
[15] The propensity evidence, as reflected in the statement of admitted facts provided to the jury, was as follows:

On 9 March 2006 the accused Say Tsong Lu was convicted in the High Court at Christchurch of the following charges:

(a) Supplying methamphetamine; and

(b) Conspiracy to supply methamphetamine.

This offending arose from a Police operation in 2005, codenamed Operation Tsunami.

Operation Tsunami was a well organised syndicate with six principal members, including the accused Lu. Methamphetamine was brought to Christchurch by Lu and another; distributed through another associate, and also sold in commercial quantities.

Upon termination of Operation Tsunami, the accused Lu’s address was searched. In his car was found two ounces of methamphetamine.

The accused Lu admitted that he had bought the methamphetamine for $16,000 on the weekend of 3 and 4 December 2005. He admitted that he had made three or four such trips previously and on-sold it for $5,500 for half an ounce or $450 for half a gram.

He stated that he sold methamphetamine to support his family but stated he had only made $10,000 to $15,000 profit.

A co-conspirator in Operation Fudge, Angie Lee Hurring, was also involved in Operation Tsunami.

[16] The Police sought to rely on that evidence in support of their case that the conversations between Mr Lu and Ms Hurring were about a proposed methamphetamine deal, and that – as reflected in intercepted communications not involving Mr Lu directly – Ms Hurring had previously dealt with Mr Lu to obtain methamphetamine. Mr Lu denied having dealt with Ms Hurring on any previous occasion on any matter.
[17] Judge Farish found that that evidence showed a propensity to “source large amounts of methamphetamine, commercial amounts of methamphetamine from Auckland”.[2] Her conclusion was that that evidence was relevant to the issue of whether Mr Lu would enter into an agreement for methamphetamine supply with his co-conspirators, Mr Nathan and Ms Hurring, and counted against his contention that in the intercepted communications with Ms Hurring he was not talking about drugs. The Judge found the propensity evidence to have a high probative value, and that its prejudice was legitimate and not insurmountable.
[18] In reaching her conclusion on admissibility, the Judge referred to the decisions of this Court in R v Taea and R v Healy.[3] On the question of prejudice she noted the direction she would give. That direction, as given, was in line with this Court’s judgment in R v Stewart.[4] She also noted the analysis in Taea that, on a subsequent charge of methamphetamine offending, an earlier single conviction for the same or similar offending constituted admissible propensity evidence. She referred to the closeness in time between Mr Lu’s earlier offending, and that for which he was facing charges – particularly given Mr Lu had been in prison until a short time before these alleged events. She noted similarities between the offending. She considered the fact that Mr Lu was involved in two conspiracies within a reasonably short timeframe of each other, both dealing in commercial quantities of methamphetamine, was unusual.

Case on appeal

[19] For Mr Lu, Mr McCormick made the principal submission that the prejudice associated with the evidence of the earlier convictions was so great that it would, in effect, overwhelm the jury. Moreover, Mr McCormick challenged aspects of the Judge’s analysis of the matters referred to in s 43(3) of the Evidence Act 2006. In particular he challenged the Judge’s reliance on the frequency of the offending (s 43(3)(a)) and whether any of the acts or circumstances which were the subject of the evidence could be regarded as being unusual (s 43(3)(f)). In contrast to Taea, Mr McCormick said there was little or no direct evidence against Mr Lu. Therefore the propensity evidence here was more central to the Crown’s case against Mr Lu than had been the case with Mr Taea. He noted the observation of O’Regan J in that decision:[5]

The jury will not be asked to infer ongoing sales merely by virtue of the fact that a previous sale has occurred: the Crown case will depend also on the evidence of preparedness to supply again and the evidence found on the two searches that occurred on 27 May 2006.

[20] Mr McCormick’s submission, with regard to the possibility of illegitimate prejudice, was that the Court would not have the “comfort” that had been provided in Taea by the wider range of evidence available against the accused.
[21] The Crown essentially submitted, by reference to her decision, that the Judge had taken a proper approach and had reached a correct decision.

Analysis

[22] We do not consider it necessary to refer in great detail to the relevant provisions of the Evidence Act relating to propensity evidence. Suffice to say that, in terms of the inclusive range of factors listed in s 43(3), we conclude that, as identified by the Judge, the following support her decision on admissibility:

• (a) When due account is taken for the time Mr Lu spent in prison on account of his earlier offending, the alleged offending involved in his part of the conspiracy with Mr Nathan and others occurred reasonably close in time to that earlier offending.
• (b) There were, in terms of Mr Lu’s role in sourcing significant quantities of methamphetamine in Auckland and making it available for distribution in Christchurch as part of an overall conspiracy, considerable similarities between the earlier proven offending and the later alleged offending. Mr Lu played a similar role on both occasions.

[23] We would place less weight on the factor of unusualness relied on by the Judge. Whilst methamphetamine offending of this type is unusual in that not many people engage in it, it is not clear to us that that consideration is what s 43(3)(f) has in mind.
[24] We note further that the propensity evidence is relevant to the essential issue in the case against Mr Lu, namely whether his conversations with Ms Hurring were about the supply of methamphetamine, or about loans. His earlier involvement in methamphetamine supply offending counts significantly against his explanation that his conversations with Ms Hurring were about loans.
[25] In these circumstances, and noting the authority of Taea, where a single earlier offence of methamphetamine supply following a guilty plea was held to constitute admissible propensity evidence on a subsequent charge, we conclude that the Judge’s decision as to the admissibility of the evidence of Mr Lu’s earlier offending was correct.
[26] As part of Mr Lu’s appeal against conviction, Mr McCormick also argued that, when Mr Lu had been questioned in his evidence-in-chief about his earlier offending, he had been unfairly prevented from answering a line of questions designed to lay the foundation for the argument that because he had only recently been freed from prison for methamphetamine supply offending, he was well aware of the risks of that offending and not at all inclined to engage in it again. In our view, and as we think Mr McCormick ultimately accepted, at the hearing of Mr Lu’s appeal, Mr Lu put that point of view clearly before the jury in answers to questions in both cross-examination and re-examination. We do not think there is anything in that point.
[27] Mr Lu’s appeal against conviction is therefore dismissed.

The appeal against sentence

The sentencing decision

[28] Having set out the factual basis upon which she was sentencing Mr Lu, namely supplying methamphetamine on seven occasions and conspiring to supply methamphetamine on the occasion of the aborted transaction, the Judge concluded that Mr Lu fell clearly within band 4 of this Court’s decision in R v Fatu.[6] On that basis, she identified a starting point of “slightly less than that of 14 years’ imprisonment”. She uplifted that starting point by two years to take account of the aggravating features that Mr Lu was on parole at the time of the offending for which he was being sentenced, and that he was on parole for exactly the same type of offending. Having found there were no personal mitigating features, the Judge then considered the question of totality. She noted that if that sentence of 16 years was accumulated on the sentence of six years Mr Lu was then serving as a recalled prisoner, there would be an effective end sentence of 22 years’ imprisonment for the two sets of offending. She considered that such a sentence would be manifestly excessive, and therefore reduced the end sentence she was to impose on Mr Lu to one of 12 years. The Judge imposed that sentence concurrently on the sentence of six years’ imprisonment that Mr Lu was still serving. Mr Lu was sentenced to a concurrent term of imprisonment of seven years on the charge of conspiring to supply. The Judge then ordered that Mr Lu serve a minimum term of seven years’ imprisonment on the charge of supplying methamphetamine.

The challenge based on disparity

[29] Mr Lu’s first challenge to the sentence imposed upon him is that there is an inappropriate level of disparity between his sentence of 12 years, and Ms Hurring’s sentence of eight years. It is therefore necessary to understand the basis upon which Ms Hurring received that sentence.
[30] In sentencing Ms Hurring, Judge Moran identified a starting point, in effect, of 12 years’ imprisonment. That starting point responded to what Judge Moran described as Ms Hurring’s “pivotal role” in the conspiracy and her involvement in making at least seven return trips by air, obtaining up to ten ounces of methamphetamine on each occasion and her involvement in the final aborted trip, when she took $100,000 to Auckland to buy methamphetamine. From that effective starting point of 12 years, the Judge applied an uplift of two years on account of Ms Hurring’s earlier offending and the fact that she was still subject to release conditions on a sentence of imprisonment for conspiracy to deal in methamphetamine. He then allowed her a discount of two years for personal factors – she was in his words “still bedevilled by long-term addiction to hard drugs” and was “vulnerable and able to be taken advantage of by people who were really controlling” the drug distribution network and was “not a leader in this enterprise but a follower”.[7] From the 12 year sentence that would on that basis otherwise have been imposed, the Judge allowed a one third discount on account of Ms Hurring's early guilty plea. Hence the effective end sentence of 8 years’ imprisonment.
[31] Ms Hurring’s sentence in relation to the lead charge of supply of methamphetamine was subsequently upheld by this Court.[8]
[32] The difference, therefore, between the sentences imposed on Mr Lu by Judge Farish and on Ms Hurring by Judge Moran relate to:

• (a) the higher starting point identified by Judge Farish for Lu’s offending of 14 years, before the two year uplift for previous offending; and
• (b) that Judge Farish did not give Mr Lu any credit for personal circumstances.

[33] Clearly, Mr Lu could have no expectation for any discount for a guilty plea, as he went to trial.
[34] When the more serious nature (by our assessment) of Mr Lu’s offending is taken into account (supply of the drugs rather than Ms Hurring’s role of an informed courier), and on the assumption that Mr Lu’s offending involved the same amount of drugs as Ms Hurring’s, then the higher starting point was appropriate. We also think that the Judge was right to uplift that starting point by two years – the same uplift Judge Moran had applied as regards Ms Hurring. We detect no error in that she did not give Mr Lu a discount for any personal mitigating factors. There were, by our assessment, none.
[35] We dismiss Mr Lu’s appeal against sentence on the basis of disparity.

The challenge to the factual basis of the sentence

[36] It is now necessary to turn to the second ground of the appeal against sentence, namely that the Judge erred in concluding – as she set out in her sentencing notes – that not only was Mr Lu culpable as regards the final conspiracy charge, but that in terms of the representative supply charge his culpability was to be assessed on the basis that he had supplied Ms Hurring with between seven and eight ounces of methamphetamine on seven occasions. The Judge recorded the factual basis upon which she sentenced Mr Lu as follows:[9]

Mr Nathan organised for you to supply methamphetamine to him and Ms Hurring over a relatively short period of time between 20 October 2008 and 20 January 2009. Within that time frame, however, I accept, on the evidence that I heard, that there were at least seven trips made by Ms Hurring to Auckland. Prior to the aborted trip in January 2009 you were the sole supplier of methamphetamine to Ms Hurring. She would either fly to Auckland or, on one occasion, she drove. The amount of methamphetamine you were supplying on each trip was between seven and eight ounces, close to $100,000 on each trip. That is a considerable amount of methamphetamine and clearly puts you in the top band of offending in relation to the bands set out in the Court of Appeal judgment in R v Fatu [2006] 2 NZLR 72. Your involvement was detected because of the police having intercepted communications between yourself, Ms Hurring, Mr Nathan and other co-conspirators.

Your involvement came to an end, however, when there was an aborted attempt by you to supply Ms Hurring with 10 ounces of methamphetamine. You were going to supply two of those ounces on tick to Mr Nathan, he only having come up with $100,000. Ms Hurring travelled to Auckland by car but on her way she became aware or thought she was aware of police tailing her. As a result the meeting between you and Ms Hurring was called off and at that stage you decided that it was too dangerous for you to be continuing to be involved with Mr Nathan. At that point, although you spoke to Mr Nathan and said that you would continue to deal with him, there needed to be some time out because of your concerns as to the police involvement. That supply was aborted. Mr Nathan had to scramble to get, firstly, the money back to Christchurch by safe means but he then scrambled to find another supplier in Auckland and that is where Mr Thorne became involved.

One of the last transcripts, or intercepted communications, that the jury and I heard however was Mr Nathan urging Mr Thorne to come and find you at the Casino because you were the person who had “meth on tap” or “had it on tap”. He, that is Mr Nathan, referred to you being able to supply eight ounces on a regular basis and that you were always able to get methamphetamine.

[37] In summary, the essential facts found by the Judge were that, in terms of actual supply offending, Ms Hurring made at least seven trips to Auckland, that Mr Lu was the sole supplier of methamphetamine to her and that he would supply between seven and eight ounces, worth approximately $100,000, on each occasion. In arguing this aspect of Mr Lu’s appeal, Mr Brandts-Giesen disputes that there was an evidential basis at Mr Lu’s trial upon which the Judge could properly reach those conclusions.
[38] The starting point for analysing that contention is the statement of admitted facts introduced at Mr Lu’s trial pursuant to s 9(2) of the Evidence Act. As relevant, that statement recorded the following matters:

1. The accused in this trial, Say Tsong Lu and Paula Lambert, are charged along with Dean Waaka Nathan, Angie Lee Hurring, Storm Harley Curran, Carina Anne Cairns, Julie Pateman, Jon Philip White and Shane William Thorne, with conspiracy to supply methamphetamine. Nathan, Hurring, Curran, Cairns, Pateman, White and Thorne have pleaded guilty to conspiring to supply methamphetamine.
2. The Police investigation into the conspiracy is codenamed Operation Fudge. The investigation commenced in January 2009.
3. Police intercepted private communications which centred around Dean Waaka Nathan, a prison inmate in possession of an unauthorised cellphone. He has pleaded guilty to the charge of conspiracy to supply methamphetamine.
4. Dean Waaka Nathan masterminded the supply of methamphetamine from Auckland to Christchurch, by arranging wholesale purchase of methamphetamine in Auckland for on-selling in Christchurch.
5. Nathan operated his money through a TAB account and also in cash. The TAB account was opened by Carina Anne Cairns, who had moved to Christchurch from Blenheim to assist Nathan. She agreed to act as a “middle-man” by holding the methamphetamine for a few days before it was distributed in Christchurch. Carina Anne Cairns has pleaded guilty to her role in the conspiracy.
6. Angie Lee Hurring’s role was to travel to Auckland and purchase methamphetamine to bring back to Christchurch. During October to December 2008, Angie Hurring made at least ten return trips to Auckland.
7. On 19 January Angie Lee Hurring, her partner and two children drove from Christchurch to Picton, caught the Interislander ferry under a false name, and then drove to Auckland. She took with her $100,000 in cash hidden in her vehicle.
8. During this trip to Auckland Dean Nathan phoned his step-daughter Storm Harley Curran. She agreed to replace Carina Cairns’ role and to hold drugs for a few days.
9. The January purchase in Auckland did not take place. Angie Hurring delivered money she was going to use for the purchase to Jon Philip White, an associate of Dean Nathan’s. Angie Lee Hurring has pleaded guilty to her role in the conspiracy.

[39] At Mr Lu’s trial, the Crown opened its case on the basis that:

... Mr Lu, was a supplier in Auckland who Mr Nathan dealt with. Nathan organised with the accused Lu to supply him with eight to 10 ounces of methamphetamine at a time. To give you an idea of the scale of this operation end users of methamphetamine will generally use point one of a gram at a time, that is called a point. There are 28 grams in an ounce and this operation was dealing with eight to 10 ounces at a time. This would be purchased physically through a woman called Angie Hurring who has pleaded guilty to her role in Operation Fudge which was essentially as Mr Nathan’s number two. She travelled to Auckland at least 10 times on short trips from late October to December 2008 and it is alleged she met the accused Lu and purchased methamphetamine in large amounts, paying between $12,000 and $13,000 an ounce and this was in cash.

[40] The evidence at trial from the prosecution largely comprised intercepted telephone conversations from 15 January 2009 onwards, shortly prior to which the Crown had obtained interception warrants. As recorded at [7], those intercepted communications related particularly to circumstances in and around 18 January 2009, on the basis of which the conspiracy charge was laid. In addition, evidence of intercepted conversations subsequent to those specific events include comments by Mr Nathan which throw light on Mr Lu’s participation in the conspiracy more generally.
[41] The starting point for our analysis of this part of Mr Lu’s appeal is that, in terms of the jury’s verdict of guilty on the charge of conspiracy, Mr Lu was part of a conspiracy over the period 20 October 2008 to 3 February 2009 in which his role was to supply methamphetamine.
[42] Further, and as recorded in the memorandum of admitted facts, it was accepted that Ms Hurring had made at least ten return trips to Auckland to purchase methamphetamine and bring it back to Christchurch between October and December 2008.
[43] That statement does not, however, identify seven transactions between Ms Hurring and Mr Lu, nor does it address the amount of methamphetamine acquired by Ms Hurring on each occasion. We also acknowledge that, notwithstanding the basis of the Crown’s opening and the basis upon which – quite separately to that trial - Ms Hurring would appear to have pleaded guilty in terms of her having undertaken seven trips to Auckland and having acquired eight to ten ounces of methamphetamine on each occasion, at Mr Lu’s trial those matters were not the subject of direct evidence. Further, Mr Lu himself denied having dealt with Ms Hurring at all prior to the events of and around 18 January, which he said involved arrangements for a loan.
[44] At the hearing of this appeal, the Crown pointed to a number of intercepted communications adduced as evidence at Mr Lu’s trial which it said provided evidence of earlier transactions between Ms Hurring and Mr Lu. By reference to that evidence the Crown submitted that, based on the jury’s verdict of guilty on the representative charge of supply, the Judge could safely draw the conclusions she did.
[45] Having reviewed those text messages, and a number of others which were not referred to by the Crown but which – in terms of her sentencing notes – the Judge clearly relied on, we are satisfied that the Judge did not err in her assessment of Mr Lu’s culpability.
[46] We reach that conclusion on the following basis:

• (a) Separate conversations on 20 January, between Mr Nathan and Ms Hurring and between Ms Hurring and her boyfriend, in our view provide an appropriate basis for the conclusion that Ms Hurring had dealt with Mr Lu and obtained methamphetamine from him on a number of occasions (excluding the aborted transaction) during the period of the conspiracy, involving what was – in our assessment – a repetitive pattern of dealing in methamphetamine.
• (b) Conversations between Mr Nathan and an unknown male, and between Mr Nathan and Ms Hurring on 18 January – together with a conversation between Mr Nathan and a Mr Thorne on 30 January, support the conclusions that during the period of the conspiracy Mr Lu was Mr Nathan’s sole supplier, and that Mr Nathan dealt with Mr Lu in large amounts – “eights” – which we take to be a reference to eight ounces of methamphetamine. Those conclusions are also supported by the lack of any reference to, or other evidence of, any other supplier.

[47] Given those conclusions, and the admitted fact that Ms Hurring travelled to Auckland at least ten times in the context of the conspiracy for the supply of methamphetamine involving Mr Lu during the period 20 October 2008 to 3 February 2009, it matters little that the basis for the Judge’s specific conclusion as to the seven transactions between Ms Hurring and Mr Lu may not be immediately obvious.
[48] On that basis, we are satisfied that the factual basis identified by the Judge and by reference to which she set a starting point of 14 years was one that was clearly available to her on the basis of the evidence that she had heard.

MPI

[49] The final basis upon which Mr Lu challenges his sentence is that the MPI of seven years was “manifestly excessive by comparison to other contemporary cases involving the supply of methamphetamine”. Mr Brandts-Giesen referred us to a number of MPI sentences involving methamphetamine offending in the Auckland area.[10] These, he submitted, involved MPIs of between 40 and 53 per cent. The seven year MPI imposed by the Judge was equivalent to 58 per cent of Mr Lu’s end sentence of 12 years, rendering it manifestly excessive.
[50] When imposing the MPI on Mr Lu, the Judge emphasised the relevance of the need to protect the community. This arose particularly because Mr Lu had re-embarked on the supply of methamphetamine very shortly (within approximately six months) after his release from prison, whilst he was still on parole for earlier like offending and – in effect – by repeating the essential features of that earlier offending. We think that this aspect of Mr Lu’s offending distinguishes his position from those of the offenders in the cases referred to by Mr Brandts-Giesen on his behalf. This need for protection, when combined with the need to denounce, deter and recognise harm – due to the large quantity of methamphetamine involved and its significant commercial value – means that we do not think it can be said that the MPI imposed by the Judge was manifestly excessive. This aspect of Mr Lu’s appeal is also dismissed.

Result

[51] Mr Lu’s appeals against conviction and sentence are dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Lu DC Christchurch CRI-2009-009-5828, 29 June 2010.
[2] R v Lu and Anor DC Christchurch CRI-2009-009-5828, 31 May 2010 at [21].
[3] R v Taea [2007] NZCA 472; R v Healy [2007] NZCA 451.
[4] R v Stewart [2008] NZCA 429, [2010] 1 NZLR 197.
[5] At [44].
[6] R v Fatu [2006] 2 NZLR 72.
[7] R v Hurring and Ors DC Christchurch CRI-2009-009-5827, 24 July 2009, at [9] and [11].
[8] R v Hurring [2009] NZCA 577.
[9] At [3]-[5] of the sentencing remarks.

[10] R v Zhou [2009] NZCA 365; R v Luo HC Auckland CRI-2007-004-22697, 1 July 2010; R v Voong HC Auckland CRI-2007-004-22697, 1 July 2010.