R V WANG JIA HC AK CRI-2006-019-008458 [2009] NZHC 241 (3 March 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                          CRI-2006-019-008458



                                       THE QUEEN



                                                v



                    
                    WANG JIA



Appearances: A R Burns for Crown
             M J Dyhrberg for Prisoner

Judgment:      3 March 2009
at 2:15 pm



                    SENTENCING NOTES OF COURTNEY J




Solicitors:    Meredith Connell, P O Box 2213, Auckland
   
           Fax: [phone]

Counsel:       M J Dyhrberg, P O Box 47-867, Ponsonby
               Fax: [phone]


R V WANG
JIA HC AK CRI-2006-019-008458 3 March 2009

[1]    Jia Wang, you appear for sentence today having pleaded guilty on the
following
charges:


       a)     Four charges of possession of methamphetamine for supply, the
              maximum penalty for which is
life imprisonment;


       b)     One charge of conspiracy to supply methamphetamine, the maximum
              penalty for which
is 14 years imprisonment;


       c)     One charge of conspiracy to manufacture methamphetamine, the
              maximum penalty
for which is 14 years imprisonment.


[2]    These charges follow a lengthy investigation during 2006 into the
importation and distribution
of methamphetamine throughout the North Island
through an Asian organised crime syndicate.      You were involved in this very
substantial
commercial operation. Although not involved in the importation or the
higher level distribution, you acted in concert with other
members of this ring by
purchasing methamphetamine for the supply to others. You conspired with others to
supply and you conspired
to manufacture methamphetamine. Much of the evidence
against you was gathered through intercepted conversations that showed an extensive
pattern of dealing between October and November 2006 and some offences,
although you do not face charges in respect of them, occurred
after you were bailed
in December 2006.


[3]    In your lawyer's submissions and in the letters that I have received from you
and
your supporters it is apparent that you became involved in the drug scene in
Auckland through bad judgment. Now aged 23, you have
lived in New Zealand
since you were 16. Your mother sent you here to study and to try and improve your
rebellious behaviour at home.
After leaving school you attended polytechnic and it
seems to be at that time that you became involved in gambling and using
methamphetamine.
Having lost substantial money gambling and having become
addicted to methamphetamine you became drawn into dealing in order to provide
an
income.

[4]        It is notable from your pre-sentence report, your own letter and letters from
your supporters that you have
made significant changes in your life since your arrest.
You have become a practicing Christian. You have reconciled your differences
with
your mother who has come with other members of your family to New Zealand to
support you and you have many friends and supporters
in court today.


[5]        You are assessed as being at low risk of re-offending and I accept that you
are genuinely remorseful
for the bad judgment that you showed and the poor choices
that you made. Your letter to me shows maturity and a commitment to put
your
involvement with drugs behind you.


[6]        In sentencing in cases involving drug dealing the main objective is deterrence
and denunciation1. Over the last several years New Zealand has been plagued by
organised crime groups based in Asia.          They
cynically embark on large scale
offending through the importation of methamphetamine or precursor substances and
distribution of
these through local gangs. The cost to our community is immense on
a personal level and in financial terms in costs of court, prison
and medical services,
not to mention the loss of productivity to the community. I know you understand
this now from your own addiciton.
These gangs depend significantly on recruits,
usually young Asian students like you who are foolish enough to get involved.
Sadly, there always seem
to be young people willing to get involved. Whilst I have
a certain level of sympathy for young, naïve students finding themselves
enmeshed
in this lifestyle, sufficient numbers have now been imprisoned that young people can
hardly be ignorant of the risks. It
is a risk that you chose and, as you now recognise,
you must pay the penalty for the conduct.


[7]        In identifying an appropriate
sentence I am required to take into account the
gravity of the offending, your culpability, and the desirability of consistency in
sentencing levels2. Although I am bound to impose the least restrictive outcome that
is appropriate there is a presumption under
the Misuse of Drugs Act 1975 that a term
of imprisonment will be imposed and in this case there is no question that that will
happen.

1
    s 7(1)(e) and (g) Sentencing Act 2002
2
    s 8 Sentencing Act 2002

[8]    I turn then to the charges that you face. I am
going to impose concurrent
sentences in respect of all the charges. That means that all the sentences will be
served at the same
time rather than one after another. However, on one of the
possession for supply charges I will increase that so that the final sentence
that you
serve properly reflects the whole of your offending.


[9]    In relation to the four possession for supply charges, I note
that each relates
to your purchase of methamphetamine, the first charge being half an ounce and the
others being an ounce each, from
one of your co-offenders. I accept your lawyer's
submission that the proper way to approach these charges is as individual instances
rather than a single instance of possession of the full amount. But the final sentence
that I have to impose has to reflect the fact
that over a period of only a few weeks
you took possession of over 90 grams of methamphetamine for the purposes of
supply. Judges
sentencing in these kinds of cases have guidance from the Court of
Appeal's decision in R v Fatu which indicates ranges of sentences
by reference to the
amount of the drug involved. In this case the amount that you had on each occasion
would put you in the low to
mid-range of what we refer to as band 2, and offending
at that level attracts a starting point of three to nine year's imprisonment.


[10]   On the first such charge of possession for the purpose of supply, Count 2,
which relates to your purchase of half an ounce
from your co-accused, Mr Zhou, on
11 October 2006. I will just describe these counts and then indicate the starting
point that I
am going to use. Count 3 relates to the purchase of an ounce of
methamphetamine from Mr Zhou on 12 or 13 October 2006. Count 4 relates
to a
purchase of another ounce of methamphetamine on 14 October and Count 5 to a
further ounce that was found in your possession
when the police executed a search
warrant on 1 November.


[11]   In fixing the appropriate starting point for these charges I have
considered a
number of recent cases that have been referred to me by both your lawyer and the
Crown lawyer. Most of these cases involve
higher amounts3 but they are all of some
assistance to me in determining what an appropriate sentence is.

3
 R v Wang HC AK CRI-2007-004-015626
8 August 2008 Lang J; R v Man Hon Chau CRI-2007-
009-008275 18 November 2008 Fogarty J; R v Gang Cai HC AK CRI-2006-019-008458 10
February

[12]      In looking at these sentences and these charges I am faced with offending that
is part of a substantial commercial
operation in which you played an integral role.
You provided the interface between those importing and the local distribution which
would on-sell at a retail level. In my view an appropriate starting point is four years
for Count 1, the half ounce of methamphetamine,
and five years on Counts 3,4, and
5, they involving the higher amounts of methamphetamine.


[13]      Count 5, however, I treat
as the lead offence and increase that to reflect the
overall offending, not only on the other possession for supply charges but also the
fact that
you have pleaded guilty to supplying and pleaded guilty to conspiracy to
manufacture. To reflect the overall offending I increase
that five year starting point
by two years.


[14]      Though I recognise that you continued to offend in the sense of acquiring
methamphetamine after you were bailed in November 2006 I have not taken that into
account in increasing the starting point. I think
that Mr Burns has indicated that he
accepts you were motivated by your addiction and at that point not actually dealing.
In any event
you do not face any charges in relation to that period.


[15]      You are, however, entitled to a discount from that seven year
starting point to
reflect the fact that you have pleaded guilty to these charges and I also take into
account when I am fixing a
discount that you very young, or relatively young when
you committed these offences and you have made truly impressive efforts at
rehabilitation. The Court always wants to see that people are going to put drugs
behind them and lead a law abiding life in the future
and if ever I saw a person who
had every prospect of doing that it is you. So I reduce that sentence to one of five
years which will
be the total amount of time you will serve, subject of course to
parole.


[16]      On the charges of conspiracy to supply and conspiracy
to manufacture I
impose sentences of three years each. They, of course, will be served concurrently


2009 Harrison J; R v Underwood
HC TAU CRI-2007-070-003929 2 August 2007 Andrews J; R v
Golding HC AK CRI-2007-057-000715 John Hansen J; R v Yorston CA195/06 21
December 2006;
R v Yao Yon Xia HC AK CRI-2006-092-009456 12 August 2008 Stevens J; R v Yun-Kang Tsao HC
CHCH CRI-2008-009-000667
13 February 2008 Fogarty J

with the other charges. I also make the forfeiture orders that the Crown seeks in
respect of the cash,
drugs and precursor substances that were found. Stand down.




                                                          ____________________


                                                          P Courtney J