R v Bong [2017] NZDC 15871 (19 July 2017)

Last Updated: 11 December 2017

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT NORTH SHORE

CRI-2016-044-004634 [2017] NZDC 15871

THE QUEEN

v

JUNG-MIN BONG (AKA) JIMMY BONG

Hearing:	19 July 2017
Appearances:	R Willox for the Crown P Heaslip for the Defendant
Judgment:	19 July 2017

_{NOTES OF JUDGE J C DOWN ON SENTENCING}

[1] Jimmy Bong, you have pleaded guilty previously to 10 charges: possession for supply of methamphetamine, possession for supply cocaine and possession for supply of GBL. Those are the most serious and lead offences in this case. There are further guilty pleas that were entered in March of this year for unlawful possession of a firearm, ammunition and a restricted weapon, and also on the same date you pleaded guilty to cultivating cannabis, possession of cannabis for supply, another cultivating cannabis for a different address and also possession for supply of cannabis in relation to that second address.

[2] The circumstances are as follows. At around 6.30 am on Wednesday

21 December 2016 police and Customs executed a search warrant at [address 1 deleted]. You provided the combination to a safe in bedroom 3 and police located there

R v JUNG-MIN BONG [2017] NZDC 15871 [19 July 2017]

a book entitled Secrets of Methamphetamine Manufacture, $170,000 in cash, an electronic cash counting machine; in bedroom 3, on the floor in that bedroom, 20 litre plastic jerry cans containing 20 litres and 17 litres respectively of the drug GBL, and further a bottle containing just under a litre of GBL. In totality, 36.77 litres or 46.45 kilograms of GBL. The street value is said to be around $250,000, the wholesale or top end dealer value in the region of $73,000.

[3] You have pleaded on the basis that you were holding that GBL for someone else and that seems to be accepted for the purposes of this sentencing, but you were a significant link in that supply chain.

[4] Further located in the drawers in the kitchen, four plastic snap lock bags containing 29 grams, 27 grams, 28 grams and 7 grams respectively of methamphetamine, and four snap lock bags containing approximately one gram of methamphetamine, a total combined weight of 92.6 grams with a street value of around

$40,000. Also in a drawer in the kitchen, five snap lock bags containing one gram of cocaine and a further snap lock bag containing 24 grams of cocaine, a total of around

25 grams of cocaine with a total street value of around $20,000. It was clear that the drawers in the kitchen had been arranged in such a way to be consistent with the dealing of drugs.

[5] Whilst at [address 1] police also discovered two grow rooms with grow tents within them. In bedroom 1, 32 cannabis seedlings between 10 and 25 centimetres, 24 seedlings of around 22 centimetres in height, and 26 seedlings of six centimetres in height. The growing equipment included a timer, a grow lamp, a fan, a heat lamp, LED light box, carbon air filter and extension cords. In bedroom 3, a grow room with

14 mature plants between 28 and 91 centimetres in height with, also, cannabis growing equipment similar to what was found in bedroom 1.

[6] Also located under the house was a cannabis growing setup which contained similar items that had been found in those two bedrooms. Also located in the kitchen were 22 grams of dried cannabis and in three snap lock bags, 33 grams of dried cannabis. In the kitchen was also found a .22 calibre bolt action rifle with a scope, five .22 calibre rounds and a combined knuckle duster and taser.

[7] There was then a search carried out of [address 2 deleted], the address of your parents. The downstairs area had been converted into cannabis growing in three separate rooms. There was a seedling room, a budding room and a mature plants and drying room. The total number of plants at that address was 748. This was a commercial style cannabis growing operation similar to the one at your address.

[8] In the processing room approximately half a kilogram of dried cannabis ready for distribution was found and $3415 in cash. The total street value of drugs found at both addresses was in the region of $400,000.

[9] You have previous convictions but they are largely for driving matters and alcohol-related matters, nothing for offending of this sort, so this clearly demonstrates very significant escalation in your offending and it arises out of your own addiction in particular to methamphetamine. That is, of course, a pernicious drug which quite often leads people into much more serious offending, and that is what has happened in this case. You have got onto the slippery slope by using methamphetamine and as a result of that you have slid your way down to the bottom where you have offended in multiple different ways relating to different forms of drugs at the most serious level.

[10] As a result of that you have lost your good name, you have lost many aspects of your life, and you have put your parents in an invidious position where they are also now facing serious charges.

[11] The Crown say that the appropriate overall start point in this case is nine years’ imprisonment, and that you would be entitled to a credit for your guilty pleas with a sentence somewhere in the region of six and a half years.

[12] It is clearly the case that in sentencing of this sort the primary purpose of sentencing for commercial drug involvement and dealing is deterrence, not only to you but also to other members of the community, and I bear that very much in mind in imposing the sentence that I do today.

[13] The Crown have suggested that the appropriate way to deal with this sentencing exercise is to adopt the GBL offending as the lead offence. It does not

carry the highest maximum penalty; in other words, it carries 14 years as opposed to life which applies in the Class A drugs, but because of the sheer volume of it, it can be taken as the lead offence. However, it must be borne in mind in relation to the GBL that you have pleaded guilty on the basis that you were holding for someone else. I proceed on the basis that you were an important part of the supply chain for GBL but were not supplying it yourself, and in that sense you were holding it for another person.

[14] Both the Crown and your counsel accept that for that lead offence a start point of five years is justified. Where the parties diverge is whether there is a need to uplift that start point to reflect the other drug offending. The Crown propose uplifts for the Class A offending, that is methamphetamine and cocaine, and also uplifts for the cannabis offending and a discrete sentence for the firearms offending.

[15] The aggravating features pointed to by the Crown are relevant and I accept them. The extent of the commerciality here is very significant. It was to a large extent quite sophisticated, although it was so blatant that in the end you were always going to be caught. Your role in both the cannabis offending and the Class A drug offending is very significant, and I have already outlined the basis on which I will sentence you in relation to the GBL offending.

[16] I have approached the setting of start points in the final sentence in the following way. Although both counsel agree that an overall starting point for the GBL offending is five years, it seems to me, given the restrictive basis on which you have pleaded guilty, that in fact the appropriate start point for GBL, which is charge number

3, is four years’ imprisonment. If you were being sentenced separately for methamphetamine and cocaine possession for supply a starting point of perhaps four or five years would have been justified, but I have to have a mind to the totality of the sentence that I impose, and therefore I am going to deal with all of this offending on a concurrent basis by imposing moderated uplifts to reflect the additional offending.

[17] So to that four years start point I would uplift it for Class A offending, both methamphetamine and cocaine, by a sum of 18 months’ imprisonment. The firearms offending is serious. It is clear, following the authorities provided to me by counsel from the Court of Appeal, that there should be a significant uplift to the sentence to

reflect the possession of a firearm in connection with the dealing of drugs, and I do so by uplifting the sentence by six months.

[18] For the cannabis offending, this was all down to you. It is very significant and commercial. On its own it would fit within band 2 of R v Terewi1, but again, having a mind to totality, I would uplift the sentence by one year. That results in a final start point of seven years’ imprisonment, or 84 months.

[19] I believe that you have shown significant remorse and you have taken significant steps towards your rehabilitation, and that justifies a discount of five percent, or in this case four months, reducing the sentence to six years and eight months, or 80 months overall. You are then entitled to a significant and maximum discount for your guilty plea of 25 percent, which would equate to a

20 month discount from 80 months and a final sentence of 60 months or five years’

imprisonment.

[20] The further matter that I must consider is the submission made by the Crown that you should be subject to a minimum period of imprisonment. That arises from s 86 Sentencing Act 2002. I accept the submission made by the Crown that very often serious drug dealing offences do justify a minimum period of imprisonment. If a minimum was not imposed here it is feasible that parole would be considered at the one-third mark of your sentence, and I must consider under s 86 whether that is sufficient to meet the gravity of the offending. I have concluded that it is not and that it is necessary to impose a minimum period of imprisonment from the point of view of punishment, and when I refer to punishment I am referring to deterrence, both of a specific and general type, and also protecting the community.

[21] The Crown urge me to impose a 50 percent minimum period and that is what I am going to do. I accept of course that your counsel argues against a minimum period of imprisonment, but I have found that the grounds are made out. Therefore the minimum period of imprisonment that you will serve is two and a half years, or

_{50 percent of that five year sentence of imprisonment.}

1 R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 (CA)

[22] The sentences are made up in the following way. On charges 1, 2 and 3, the most serious charges, you are convicted and sentenced to imprisonment for five years; that is concurrent on each. You will also be subject to a minimum period of imprisonment for 50 percent of 50 percent for a period of two and a half years.

[23] On charges 7 to 10 you are sentenced to imprisonment for three years on each of those four charges. They will be concurrent on each but also concurrent to the above sentence of five years.

[24] On charges 4, 5 and 6, the firearms charges, you are convicted and sentenced to imprisonment for 18 months. Again, that is concurrent on each of the sentences and concurrent to the five years.

[25] So the overall sentence is five years with that minimum period of 50 percent. There will be destruction of the drugs, paraphernalia, firearm, ammunition and prohibited weapon.

J C Down

District Court Judge