R V CHIT HEI CHAN HC AK CRI 2008-092-11192 [2009] NZHC 496 (5 May 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                     CRI 2008-092-11192



                                      THE QUEEN



                                             v



                        
          CHIT HEI CHAN



Appearances: B Finn for the Crown
             D Young for the Prisoner

Sentence:       5 May 2009


                     SENTENCING NOTES OF PRIESTLEY J




Counsel
B Finn, Meredith Connell & Co, P O Box 2213, Auckland 1140. Fax:
09 336 7629
D G Young, P O Box 105 310, Auckland 1143. Fax: [phone]




R V CHIT HEI CHAN HC AK CRI 2008-092-11192 5 May 2009
[1]
   Mr Chan I am sentencing you today on a charge of importing
methamphetamine. This is a charge to which you pleaded guilty on 3
December last
year during a depositions hearing. As your counsel will have told you this is a
serious offence. It carries a maximum
possible term of life imprisonment.


[2]    You and an associate, a friend of yours, Ms Lau, were co-offenders. Both of
you resided
in Hong Kong. Although there was some suggestion by Ms Lau that
you and she were living in a de facto relationship you have disputed
that and, for the
purposes of sentencing, I accept your explanation.


[3]    On 28 January 2008 you and your co-offender arrived
at Auckland
International Airport on a flight from Hong Kong.        You were searched in the
customs area. A personal search of
your body revealed that there were packages of
methamphetamine hidden in the soles of each of your shoes and you also had packets
of methamphetamine strapped around your body. The total number of packages
involved, so far as you were concerned, was five.    
        The total amount of
methamphetamine strapped to your body or hidden in your shoes was 537.4 gms.


[4]    Your co-offender,
for what it is worth, also had five packages on her. The
weight of the methamphetamine she was carrying was slightly higher, 572.6
gms.


[5]    The street value of the total importation brought into the country by you and
your co-offender was approximately $1.1
million.         If I were to look at the
methamphetamine which you alone were bringing into New Zealand it would be
somewhat over
half a million dollars.


[6]    Significantly Wylie J sentenced your co-offender Ms Lau to a term of 7½
years imprisonment on 26
September last year. I have read his sentencing notes. In
sentencing you I am obliged to keep the term of imprisonment I impose on
you
within much the same range.


[7]    I say something now about your personal circumstances and the information
contained in the
presentence report. You were born and raised in Hong Kong. You
are 33 years of age. You graduated from high school. You apparently
have a young
daughter aged 2 being the product of the relationship between you and your former
wife. You do not seem to have had
a significant employment history being in the
main employed as a casual waiter. During the course of the marriage you apparently
incurred debt. I have read a police job sheet which was the result of an interview
between you and the police approximately two weeks
ago. Somewhat belatedly, and
at the sensible urging of your counsel, you decided to give some information to the
police.     You
stated to the police that you initially borrowed approximately
NZ$10,000. Interest charges on that sum, however, soared within six
months to
$26,000. You decided that the only way out of this financial dilemma was to offer
your services as a drug courier. You
said in your statement to the police that the
person from whom you had borrowed this money was responsible for taking you to
mainland
China and giving you the drugs. The same person apparently escorted you
and your co-offender to Hong Kong airport and made the necessary
arrangements for
the flight. Your reward for being a drug courier was that your loan, so you say, was
to be forgiven or wiped.


[8]       In your interview with the probation officer you held yourself out to be very
much the pawn in the middle of somebody else's game. You said that although you
knew the drugs you were
bringing into New Zealand were illegal you had no idea
what those drugs were. Rather you thought they were some form of influenza
medication. Your association with Ms Lau, so you say, was of approximately 12
months duration. In your interview with the probation
officer you have in large
measure tried to blame Ms Lau and the person who lent you money in Hong Kong as
being the major offenders.


[9]       Despite the fact that you have been reluctant to assume full responsibility for
your criminal actions the probation service
assesses your risk of re-offending as low.
I accept that assessment.


[10]      The presentence report also has further information
on it in the form of letters
from friends and your family in Hong Kong. Your parents plead for leniency. They
are concerned. There
was originally some concern that your daughter might become
an orphan. However, it would appear that your mother is prepared to look
after your
daughter. I accept the fact she is old and somewhat infirm.
[11]   For your family and for your daughter, Mr Chan, your
stupidity has brought
about tragic consequences. I am sure you now accept that. You do not appear to
have had any previous convictions.


[12]   The aggravating and mitigating factors of your offending are clear as are the
relevant sentencing principles. There was
a high degree of premeditation on your
part so far as this drug importation was concerned. Mitigating factors which I am
entitled
to weigh are the fact that you pleaded guilty in December 2008. This was
not at the earliest opportunity but it was prior to trial.
I also give some very small
weight to the fact that two weeks ago you volunteered some assistance to the police.
You would be given
much more credit for that, Mr Chan, had you done it earlier.


[13]   Counsel are speaking with one voice, almost, so far as their
submissions are
concerned. In the circumstances Mr Finn, for the Crown, accepts a start point in the
range of 12 ­ 13 years. He does
not quarrel with a start point of 12 years. Nor does
your own counsel consider a start point of 12 years is inappropriate. The only
difference between counsel's approach is Mr Young's understandable submission I
should sentence you to a slightly lower term of imprisonment
than that imposed on
your co-offender, Ms Lau.


[14]   In any drug importation case denunciation and deterrence are dominant for
sentencing purposes. This is particularly the case with importations such as your
own.    You have no connection with New Zealand.
               You saw importing
methamphetamine into New Zealand for financial gain as a solution to the financial
problems you
have incurred in Hong Kong. You deliberately took the risk for
personal financial reward. The suggestion that you thought the contents
of the
packages you had in your shoes and strapped around your body were some benign
influenza remedy is patent nonsense.       You
must have known, because of the
elements of secrecy involved and the briefings you undoubtedly got, that you were
dealing with an
illegal substance and the risks were high.


[15]   I have considered the relevant authorities cited to me by counsel. Having
regard
to R v Fatu  [2006] 2 NZLR 72 and its importation band, you sit slightly above
the 500 gram floor of that band. The start point needs to sit in the 12 years to
life
imprisonment range. In terms of the classification of your involvement in drug
importation, having regard to R v Wallace  [1999] 3 NZLR 159 at [25] and R v
Wickremasinghe (HC AK T013408, 28 March 2003, Chambers J), you are not an
instigator, mastermind, or prime mover.
But you are a vital part of the importation
and distribution chain. You were a mule or courier bringing methamphetamine into
New
Zealand for personal reward.


[16]   I have considered the authorities cited by counsel - R v Araki (HC AK CRI
2008-004-2758, 10
June 2008, Allan J), R v Hadfield CA337/05, 14 December 2006,
Chambers J, R v Reynecke (HC AK CRI 2004-004-009111, 29 July 2005,
Winkelmann J), and R v Tahir (HC AK CRI 2005-004-000844, 20 September 2005,
Venning J) - with their respective start points and volumes.


[17]   Importantly too, so there is no significant disparity between the sentence
imposed on you and your co-offender Ms Lau, I
have considered the end sentence of
7½ years imposed by Wylie J on 26 September last year, he having adopted a start
point of 12
years.


[18]   Both counsel agree that you fit towards the lower end of the band 4 Fatu
range. Your own counsel suggests 12 years.
Although the Crown have tentatively
suggested a higher start point of 13-15 years, Mr Finn has modified that having
reconsidered
the matter and having factored in your recent co-operation with the
police. He too does not quarrel for the start point. I consider
a 12-year start point
reflects your culpability and also includes the aggravating feature of premeditation.


[19]   The major mitigating
factor, for which you are entitled to a credit, is your
guilty plea in December last year before trial. Some of the personal mitigating
factors, which were available to your co-offender, such as her young age (22); her
historic addiction to methamphetamine; and her
earlier co-operation with the police,
are not factors you can claim. You originally gave the police no helpful information.
You now
have given them some information. You have tended to try to put the
blame on your co-offender and, regardless of your financial difficulties
in Hong
Kong, you are a mature man aged 33 with family responsibilities and unaffected, so
it would seem, by drug addiction.
[20]
  I intend, however, to extend a small degree of leniency to you to reflect the
fact you have responsibilities as a parent towards
a young child; that you are
friendless in New Zealand; and that imprisonment in an alien culture, surrounded by
a strange language,
will make imprisonment a more severe a penalty for you than for
many. I also give you some small credit for the co-operation you
gave to the police
two weeks ago.


[21]   I consider that from the 12-year start point I have adopted, a reduction of a
third is
both appropriate and generous. Taking a step back, I do not consider the fact
that you will serve a term of imprisonment six months
longer than that imposed on
your co-offender a troubling factor. The generous discount given by Wylie J to your
co-offender reflected
matters, as I have said, which are not available to you.


[22]   Accordingly I impose on you a term of eight years imprisonment.


[23]   A minimum term is not sought nor, in my judgment, is it appropriate on the
facts of this case and comparable cases.


[24]
  Thank you Mr Chan You may stand down.




                                                          .............................................
                                                                                      Priestley J