R V HUANG AND WEI HC AK CRI 2006-019-8458 [2009] NZHC 515 (8 May 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                        CRI 2006-019-8458



                                        THE QUEEN



                                                v



                   
   HUANG CHEN-WEI AND WEI ZHONG



Hearing:        8 May 2009

Appearances: R Burns and K Cato for the Crown
             S Bonnar
and J Cheng for Mr Huang
             R Mansfield and E Chan for Mr Wei

Judgment:       8 May 2009


                         SENTENCING
OF WOODHOUSE J




Solicitors / Counsel:
Mr R Burns, Meredith Connell, Office of the Crown Solicitor, Auckland
Mr S Bonnar, Barrister,
Auckland
Mr R Mansfield, Barrister, Auckland


R V HUANG AND WEI HC AK CRI 2006-019-8458 8 May 2009
[1]    Mr Wei and Mr Huang,
you may remain seated until I come to impose
sentence at the end of these comments.


[2]    You are both to be sentenced for offences
of dealing in large quantities of
methamphetamine. The maximum penalty for your offences, which were supplying
methamphetamine or
having it for supply ­ and to all intents and purposes there is no
real difference ­ that applies to Mr Wei ­ the maximum penalty
for these offences is
life imprisonment. It is perhaps worth reflecting in the case of both of you, because
of your relatively young
ages, that what that would actually mean ­ if there was a
sentence of life imprisonment and you served it to its full term ­ it would
be at least
40 years in prison. And I think you should reflect on that.


[3]    Before I deal with your individual cases I have
some general comments.


[4]    Firstly, I have received extensive and helpful written submissions from your
counsel ­ your lawyers.
     Although I do not intend to refer in detail to these
submissions, and the further submissions made this morning, they have been
taken
into account.


[5]    Secondly, as the submissions for both of you recognise, you are to be
sentenced for drug dealing at
a serious level of criminality. You were both actively
involved in organised crime with important parts of this controlled from China.
And
I think that is quite clear, whether or not Xiao Pang was in China, and the indications
are that he probably was. It is accepted
that you must receive lengthy terms of
imprisonment. That is accepted by you through your counsel. I need to take account
of the
prospects of your rehabilitation and reintegration into the community at the
end of a prison sentence, and I must impose a prison
sentence that is the least
restrictive outcome in the circumstances. I will have regard to those matters. But as
the law makes clear,
what needs to be given particular emphasis in cases of
commercial drug dealing is denunciation and deterrence.         And that is
not just
deterrence of you from doing this again, but deterrence of others.
[6]    Another principle that I must give full weight
to, and which your counsel
recognise, is that the sentence imposed on you must bear a proper relationship to the
sentences imposed
on others involved in your drug dealing activities. I will come
back to that.


[7]    A further general point concerns comparison
with other cases beyond your
co-offenders. Regard must be had to sentences in broadly comparable cases, but
there are limits to the
extent of the comparison. Amongst other things, and relevant
to submissions made on your behalf, and also in fact by the Crown, comparison
of
amounts involved in other cases cannot be done as some form of mathematical
exercise. I do not want to overstate this, but there
is a point at which the quantities
become less significant in relation to the sentence and with both of you we are
dealing with large
amounts of methamphetamine.


Mr Wei


[8]    Mr Wei, I will deal with your sentence first. You may remain seated.


[9]    You pleaded
guilty to one charge of supplying methamphetamine and one
charge of possession of methamphetamine for supply.


[10]   Following
a disputed facts hearing I found that the total of methamphetamine
on the two charges was almost 5.4 kilograms. The street value of this, sold at retail
which was the end result of what you were doing, may have been well in excess of
$5 million.


[11]   The facts relating to this
are fully set out in my judgment related to the
disputed facts. I do not intend to repeat what is recorded there but it is all relevant.


[12]   The essential point is that I am satisfied that you were involved in drug
dealing on a large scale for personal gain. You
made a calculated decision to handle
bulk sales of methamphetamine to make money through crime.
[13]    Mr Mansfield has submitted,
in essence, that you were simply a middle man
between Xiao Pang probably in China and Zhou Ri Tong in Auckland. I do not
accept that
you can be classified simply as a middleman or a courier. You have
actually admitted, as recorded in Mr Mansfield's submissions,
that you had a
significant hand in initiating the drug dealing. At paragraph 2.23 of that submission
it is said:

        Zhou later
requested the prisoner [that is you] to source methamphetamine.
        The prisoner raised the request with Xiao Pang. Xiao Pang
indicated that he
        had some acquaintance in New Zealand who might assist.

[14]    You handled large sums of money in the
dealings involving Xiao Pang in
China and Zhou Ri Tong in Auckland. In relation to those dealings you played a
very important role
well beyond that of a courier.


[15]    But in addition to that, by late October or early November ­ as I have found ­
you were
operating beyond the framework initially established between you, Xiao
Pang and Zhou Ri Tong, and some of which also involved Mr
Huang. The earlier
dealing you were involved in related to a stockpile of 152 ounces of
methamphetamine ­ about 4.3 kilograms. There
was new dealing by you involving a
further kilogram.    You had a pivotal and controlling position in this Mr Wei,
notwithstanding
the fact that with some of it you may have been subject to direction
from others.


Starting point and parity


[16]    I need to
fix what is called a starting point and there have been submissions
on this. This is the length of your prison sentence taking account
of all features of
your offending before considering personal matters.


[17]    The Crown has submitted that the starting point
should be around 25 years ­
or at least up to 25 years. In support of that submission the Crown has referred to
sentences imposed
on others who were involved in your drug dealing chain. You
supplied a large quantity of methamphetamine to Zhou Ri Tong. He was
sentenced
for supplying about 3.7 kilograms of methamphetamine, although not all of it was
obtained from you. The starting point
for his offending, fixed by the Judge, was 20
years.     This was calculated as 15 years for supply of 1.5 kilograms of
methamphetamine
to a man called Alan McQuade, and a further 5 years for other
drug dealing.


[18]     The starting point for Mr McQuade's sentence,
related principally to the 1.5
kilograms obtained from Zhou, was 17 years.


[19]     Mr Mansfield, on your behalf, has submitted
that the starting point should be
15 to 17 years. He recognised that it is important in sentencing that there is proper
parity between
co-offenders ­ a proper relationship between sentences imposed on
others involved in your same offending. But in relation to the
starting point for Zhou
he submitted that it was manifestly excessive. In support of that submission Mr
Mansfield referred to a number
of other cases, as did the Crown. In this regard I
refer back to my general comments about comparing cases.


[20]     I have had
regard to these other cases, and to some more not referred to by
the Crown or by your counsel. I will not go into the details of
those cases, but I
simply note the names of the main ones: R v Gollop & Ors (HC AK, CRI 2006-092-
016424, 13 February 2009, Winkelmann
J); R v Chen & Ors (HC AK, 2006-004-
010505, 10 December 2008, Courtney J); R v C (HC AK, CRI 2006-004-25638, 17
August 2007, Lang J); R v Lau (HC AK, CRI 2005-92-2600, 16 December 2005,
Allan J); R v Shaida and Graaf (HC AK, CRI 2004-004-006330, CRI 2004-004-
006746, 21 September 2004, Williams J); R v Graaf (CA383/04,
6 March 2007); R
v Shaida (CA398/04, 6 March 2007); R v Wong (HC AK, CRI 2005-004-15296, 8
September 2006, Winkelmann J); R v Ang
(HC AK, CRI 2008-004-012540, CRI
2008-004-010768, 18 November 2008, John Hansen J); R v Huang (CA577/07, 5
March 2008).


[21]  
  In regard to those other cases, and relating them to the extent that one can to
the level of your offending, I am not persuaded
that the starting point for Zhou Ri
Tong was manifestly excessive.
[22]   In any event Mr Wei, having regard to all relevant principles,
including
sentences imposed in cases other than co-offenders, I am satisfied that the starting
point in your case should be at least
20 years. The Crown submitted that it should be
20 years for the dealing in the 152 ounces ­ that is to say approximately 4.3
kilograms
­ which involved Xiao Pang and, as to 72 ounces, Mr Huang your co-
offender. There is the additional 1 kilogram which you had in
your possession for
supply, and half of which you were trying to supply when you were arrested. The
Crown submitted that a further
5 years should be added for that.


[23]   I am prepared to give you the benefit of the doubt as to how you became
involved in this
drug dealing, based on Mr Mansfield's submissions on your behalf.
And, in relation to the 4.3 kilograms, I also accept that you were
subject to directions
from Xiao Pang.


[24]   I do consider that the starting point of 25 years submitted by the Crown is too
high.
Having regard to all the matters that I have referred to, and some that I have
not gone into detail about including other cases,
I consider that the appropriate
starting point is 20 years.


Personal circumstances


[25]   Mr Wei, I now come to your personal
circumstances. There are no personal
factors which should increase your sentence. There are personal factors which
should reduce
the sentence. The most significant, in terms of reduction, is the fact
that you pleaded guilty. You pleaded guilty two weeks before
the trial was due to
start. The Crown submitted that the discount for your guilty plea should be between
15-20% or perhaps a bit
lower at the starting point. Mr Mansfield submitted that it
should be between 20-25%.


[26]   I also take account of the fact that
you have no previous convictions in New
Zealand and there is evidence that you have no previous convictions in China. I take
account
of the supporting letters that I have received not only from your parents but
from friends and others who know you.             I
am prepared to accept ­ and
notwithstanding the submission from the Crown for Mr Burns ­ that there is genuine
remorse on your part,
notwithstanding the fact that you still apparently dispute part
of my finding as to the 1 kilogram ­ or half of it. Mr Wei, I have
also read the letter
from you to me. I also give weight to the fact that you are 26 years old ­ and about
three years younger at
the time obviously ­ and I do compare your age, favourably to
you, with Zhou Ri Tong, who was almost 50.


[27]   Having regard to
these matters, and in particular the guilty pleas, I consider
that the starting point of 20 years should be reduced to 15 years.
That compares with
a final sentence of 12 to 14 years submitted on your behalf by Mr Mansfield.


Minimum term


[28]   The remaining
question for your sentence Mr Wei is whether I should impose
a minimum term of imprisonment.


[29]   Were it not for the personal
circumstances I have just referred to, and one
other, I would have been minded to impose a minimum term. The other factor is that
you are a Chinese national, with a poor command of English, and almost certainly to
be deported. Because of those circumstances I
have decided that a minimum term
should not be imposed and as part of that that the Parole Board should be the people
who determine when you are released from prison subject to the
minimum term
under other legislation.


Huang Chen-Wei


[30]   I now come to your sentence Mr Huang. You may remain seated.


[31]
  You were convicted following a jury trial. The jury found you guilty of six
charges of supplying methamphetamine to Mr Wei. The
total involved in five of
those charges was 72 ounces of methamphetamine ­ that is a little over 2 kilograms.
The street value of
this, distributed through retailers, could have been well in excess
of $2 million.
[32]    The 72 ounces came from what is called
a stockpile which you controlled.
Supply by you to Mr Wei was controlled through Xiao Pang to whom I have referred
­ the man apparently
in China.


[33]    Once this stockpile was exhausted you found a new source ­ and that I
consider is quite clear, whatever the quantity.
This is apparent from the final count
on which the jury found you guilty ­ supply of what was called a sample. The
quantity was not
specified, but I am satisfied that it was around 3 ounces ­ around 85
grams. The quantity involved is relatively small, compared
with the 72 ounces. But
the significance of this is that you, in my judgment, were embarking on what
amounted to a new dealing operation
from a new source ­ the stockpile ultimately
controlled, it seems through Xiao Pang having been exhausted.


Starting point


[34]
   Coming to the starting point. The Crown has submitted that the starting point
for you should be between 18 to 20 years. This is
compared in particular to the
starting point of 17 years for McQuade in respect of the supply of 1.5 kilograms and
some other offending.
The Crown further submits that for a number of reasons that
should be increased to around 22 years.


[35]    Mr Bonnar has submitted
that the appropriate starting point is 15 to 16 years.
That is based on submissions on principles of sentencing and comparative cases
broadly as dealt with by Mr Mansfield in the case of Mr Wei.            Mr Bonnar's
submission is also related, importantly, to submissions
as to the extent of your
involvement and general culpability compared with others who you were dealing
with.


[36]    I consider,
Mr Huang, that the starting point for your sentence should be 17
years. As the Crown said in its submissions, there is a degree of
consistency ­ as
they put it ­ between a starting point at around 18 years and the starting point of 17
years in McQuade's case.
I do not consider that it would be appropriate to increase
your starting point above 17 years having regard to the importance of
parity between
co-offenders. The main quantity in McQuade's case was around 500 grams less than
what you dealt with ­ and these
figures are approximate. But the extent of his
criminal activity and the extent of his control was greater than yours.


Personal
factors


[37]   Coming to personal factors. You are 25 years old ­ 23 at the time of the
offending. You have no previous convictions
of relevance. I have read your letter to
me and those from your parents, sisters and friends. I accept that you have genuine
remorse.
I accept this in spite of the fact that you pleaded not guilty. The reason is
not only the things I have just referred to but also
Mr Bonnar's advice that you
would have pleaded guilty to the six counts on which you were convicted if the
Crown had not proceeded
with the remaining count on which you were acquitted.
The count on which you were acquitted was added at a very late stage and following
a ruling by me that the count could be added notwithstanding Mr Bonnar's objection
on your behalf. At the same time ­ and therefore
also very late in the proceedings
and following an arrest in October or November 2006 ­ at the same time the Crown
got leave to introduce
new and important evidence of intercepted communications
which linked you through those communications with a meeting at the Greenlane
carpark.


[38]   As Mr Bonnar acknowledges, limited credit can be given for personal
mitigating factors that I have referred to. But I do consider
that some allowance is
justified for those factors ­ and that is all of the matters I have just discussed. A
reduction in my judgment
should be 2 years, reducing the end sentence to 15 years.
This compares with an end sentence of 13 to 15 years submitted by Mr Bonnar.


Minimum term


[39]   As to a minimum term I do not intend to impose one. The reasons are
essentially the same as the reasons in
Mr Wei's case, and also because I have not
imposed a minimum term in Mr Wei's case.
Formal sentence ­ Mr Wei


[40]   Mr Wei, if
you would please stand.


[41]   On count 1 ­ supply of methamphetamine ­ you are sentenced to a term of
imprisonment of 15 years.


[42]   On count 2 ­ possession of methamphetamine for supply ­ you are sentenced
to a term of imprisonment for 14 years, to be
served concurrently.


[43]   The total sentence therefore is 15 years. As I have just said, there is no
minimum term imposed by
me.


Formal sentence ­ Mr Huang


[44]   Mr Huang, if you would stand.


[45]   On each of counts 2 to 6, you are sentenced to 15
years imprisonment.


[46]   On count 7 you are sentenced to 5 years imprisonment.


[47]   All of the sentences are to be served
concurrently. Again, as I have already
said, there is no minimum term imposed by me.




__________________________________
Peter
Woodhouse J