R v Tang HC Auckland CRI-2009-004-13439 [2011] NZHC 1198 (6 October 2011)

Last Updated: 22 October 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2009-004-13439}

THE QUEEN

v

ZHONG JIE TANG, TERRENCE ARTHUR SIMS, STEVEN JOHN BAIRD, ROBERT JONES,

WENBIN GU AND JIALIN WU

Hearing: 6 October 2011

Counsel: Y Yelavich and P Carter for the Crown

P Tomlinson for Mr Tang

M Dyhrberg and O Hintze for Mr Sims

A Speed for Mr Baird

S Tait for Mr Jones M Edgar for Mr Gu D Niven for Mr Wu

Judgment: 6 October 2011

_{SENTENCE OF WOODHOUSE J}

Solicitors:

Ms Y Yelavich, Meredith Connell, Office of the Crown Solicitor, Auckland

Mr P Tomlinson, Solicitor, Auckland

Ms M Dyhrberg, Barrister, Auckland

Mr A Speed, Barrister, Auckland

Mr S Tait, Barrister, Auckland

Mr M Edgar, Barrister, Auckland

Mr D Niven, Barrister, Auckland

R V TANG, HC AK CRI-2009-004-13439 6 October 2011

[1] Zhong Jie Tang, Terrence Sims, Steven Baird, Robert Jones, Wenbin Gu and Jialin Wu – you appear today for sentence having been convicted on a number of charges of manufacturing and supplying methamphetamine and related charges. This conviction was by a jury following a three week trial.

[2] I would normally summarise the offences for which you are to be sentenced and provide a summary of the facts. And because you are to be sentenced for manufacturing and supplying methamphetamine, and for some related offences, it would also normally be necessary to explain the conclusion I have reached as to the quantity of methamphetamine involved. However, all of this information is contained in my disputed facts judgment delivered on 4 October 2011 – a few days ago. I do not intend to repeat what is contained in that judgment. The judgment is to form part of my reasons for the sentences I will now impose. However, in the transcript of the comments I am now making I will add at the beginning a summary of the offences.

[3] I have, of course, read all the written submissions from your counsel, letters from some you, and on your behalf in some cases, submissions for the Crown and the pre-sentence reports. I have also heard further submissions at the disputed facts hearing and I have heard further oral submissions this morning. And, of course as you know, I then stood the matter down to reflect on some particular issues. All of this has been taken into account but I will refer only to some of these matters to a limited extent.

The offences

[4] The summary of the offences (added in the transcript) is as follows:

(a) Count 1 – Mr Tang and Mr Sims – manufacturing methamphetamine between 6 April and 24 April.

(b) Count 2 – Mr Tang, Mr Sims and Mr Baird – supplying methamphetamine between 25 April and 25 May.

(c) Count 3 – all accused – manufacturing methamphetamine between 26

May and 28 May.

(d) Count 4 – five accused (excluding Mr Gu who was not charged) –

supplying methamphetamine between 28 May and 30 May.

(e) Count 5 – all accused – manufacturing methamphetamine between 2

June and 4 June.

(f) Count 6 – five accused (excluding Mr Gu who was not charged) –

supplying methamphetamine on 5 June.

(g) Count 7 – all accused – manufacturing methamphetamine between 8

June and 11 June.

(h) Count 8 – Mr Tang, Mr Gu and Mr Wu – possession of methamphetamine for supply on 11 June – particulars: “the white powder weighing 34.5 grams found in the restaurant’s kitchen at 189

Manukau Road, Epsom”.

(i) Count 9 – Mr Tang, Mr Gu and Mr Wu – possession of methamphetamine for supply on 11 June – particulars: “the crystalline material weighing 40.9 grams found in the restaurant’s kitchen at 189

Manukau Road, Epsom”.

(j) Count 10 – Mr Tang, Mr Gu and Mr Wu – possession of equipment for manufacture of methamphetamine – particulars: “hot plates, pH strips, protective face masks and gloves, respiratory gas masks, scales, funnels, conical flasks and other glassware found at 189 Manukau Road, Epsom”.

(k) Count 11 – Mr Tang, Mr Gu and Mr Wu – possession of precursor substance for manufacture of methamphetamine – particulars: “pseudoephedrine found at 189 Manukau Road, Epsom”.

(l) Count 12 – Mr Sims – possession of equipment for manufacture of methamphetamine – particulars: “reaction flasks, glass condensers, par bombs, hot plates, pH strips, pH strips, pH meter, steam distillers and assorted glassware found at 528 Makarau Road, Kaukapakapa”.

(m) Count 13 – Mr Sims – possession of precursor substances for manufacture of methamphetamine – particular: “pseudoephedrine, toluene and hydrochloric acid found at 528 Makarau Road, Kaukapakapa”.

(n) Count 14 – Mr Sims – possession of materials for manufacture of methamphetamine – particulars: “sodium hydroxide, iodine, fuelite, hypophosphorous acid and acetone found at 528 Makarau Road, Kaukapakapa”.

(o) Count 16 – Mr Jones – possession of materials for manufacture of methamphetamine – particulars: “isopropyl alcohol and iodine”.

Starting point

[5] I will proceed directly to assessment of a starting point relating to the lead offence of manufacture of methamphetamine. There were four convictions for manufacture in total but I will assess this in relation to the total quantity of methamphetamine that I have found was manufactured on four occasions – that is, between 375 and 500 grams of methamphetamine. This brings this offending within

the upper half of band 3 of the Court of Appeal decision in Fatu[1] with a range of

12 ½ to 15 years imprisonment. The starting point, taking a precise midpoint, would be 13 years nine months. I fix it at 13 years. Taking a starting point in the upper half of band 3, and then adjusting it down in the way I have just done, provides all of you

_{with a substantial benefit of the doubt as to the total quantity manufactured, for}

reasons recorded in my disputed facts judgment. And the law is, of course, that you are entitled to the benefit of the doubt.

[6] Mr Tang and Mr Sims – you were found guilty on all four counts of manufacturing methamphetamine. The rest of you were found guilty on three counts. The starting point of 13 years applies to Mr Tang as the principal offender on all four counts.

[7] I will now consider your individual circumstances, both in relation to your involvement in the offences for which you have been found guilty and in respect of matters personal to each of you. Some matters relevant to the assessment of your roles in the offending have also been covered in the disputed facts judgment and generally will not be repeated now. This includes the reason why I consider Mr Tang to be the principal offender of the six of you.

Mr Tang

[8] Coming to Mr Tang specifically. Mr Tang, the starting point of 13 years needs to be increased to take account of the other offences for which you have been found guilty. There are five convictions for supply or possession for supply of methamphetamine. The two offences of possession for supply relate to the total of

75.4 grams of methamphetamine found on 11 June 2009. These should be treated as one offence. There are the two further convictions for possession of the equipment and the precursor substance found at the motel. These offences, for which Mr Wu and Mr Gu were also found guilty, are in large measure contained in the manufacturing offences.

[9] Your central role in the supply of methamphetamine as well as manufacture could justify an increase to the starting point of three years or more. However, I take account in particular of one or two intercepted conversations indicating reasonably clearly that you had to account to another person for money – and this is another person who, it seems, has not been identified. I consider that the starting point should be increased by two years – to a total of 15 years imprisonment – to take account of the further offending.

Personal circumstances

[10] I next need to consider any increase or decrease having regard to matters personal to you.

[11] Mr Tang, you are aged 30. You were born in China. You came to New Zealand in 2000 aged 19. You have been married for approximately 20 months. You have one child aged 11 months.

[12] You have no previous convictions.

[13] There is evidence that you have contributed constructively to society in various ways – especially in helping other people. I have received a substantial number of very supportive and positive testimonials.

[14] You acquired the lease of the Jacaranda Motel in 2005 with money lent by your parents. You expanded to the adjoining restaurant in 2007. This money will be gone.

[15] You say that you started using methamphetamine because of your hours of work at the motel – from 6:00 am to 11:30 pm every day. You say you were then influenced by people involved in drug dealing to get involved yourself in manufacturing methamphetamine and being actively involved in supplying it.

[16] I have read two letters from you. I do accept that you have remorse and that you fully accept the criminality of your actions. What you have done has also had a devastating effect on your wife, child and parents.

[17] The Court of Appeal has said that positive personal circumstances cannot be given great weight by way of discount for serious offences involving drugs such as these. This, of course, is an observation that applies in the case of all of you. You are nevertheless, Mr Tang, entitled to some credit for the matters that I have referred to. Mr Tomlinson also submitted that there should be a further discount because of what he described as likely hardship from deportation at the end of your sentence. In

my judgment this is not a matter justifying a reduction. And the cases Mr Tomlinson referred to – Tanakura[2] and Takiguchi[3] – do not support the submission.

[18] Nevertheless, in my judgment there should be a reduction to take account of the positive personal matters I have referred to. This reduction should be two years. This results in an end sentence for manufacturing methamphetamine of 13 years imprisonment.

Minimum period of imprisonment

[19] Mr Tang, the Crown submitted that there should be a minimum period of imprisonment. There are reasonable grounds for this having regard to s 86 of the Sentencing Act and observations of the Court of Appeal in a case called Wong[4] and earlier cases which are referred to in the Wong case. However, and as I have already indicated, assessing all relevant matters I have come to the conclusion that in your case there should not be a minimum period of imprisonment. I emphasise that this conclusion has full regard to the matters referred to in s 86, and in the Court of Appeal cases. It takes into account all matters that I have referred to and which are

otherwise contained in the information available to me.

Mr Sims

[20] Mr Sims, the starting point for your conviction on the four counts of manufacturing methamphetamine could be close to, if not the same as, the starting point for Mr Tang of 13 years. You had a very active involvement in manufacturing methamphetamine on four occasions. However, it was overall a lesser role than that of Mr Tang. For that reason I fix the starting point in your case, on the four offences of manufacturing methamphetamine, at 10 years and six months.

[21] There needs to be an uplift for the other offences. There are three convictions for supply of methamphetamine. There is direct evidence of supply of 10 grams on

one occasion to one person. Otherwise I accept Ms Dyhrberg’s submission that the jury will have found you guilty for supply as a party to that offending. And in any event that is my conclusion.

[22] There are three further convictions for possession of equipment, possession of precursor substances and possession of materials for manufacture of methamphetamine. This relates to the very large quantity of items found at your home and referred to in the disputed facts judgment. The sheer volume of this material, including large quantities of expensive chemicals essential for manufacture of methamphetamine, makes these offences more serious, in relative terms, than the similar offences for which Mr Tang and some others were found guilty. There needs to be some uplift for this offending, rather than treating it as effectively absorbed in the sentence for manufacture.

[23] The uplift in your case will be one year to 11 years six months. And I would record that that is perhaps the absolute minimum.

Personal circumstances

[24] I come to your personal circumstances. You are aged 49. You have four children from two previous marriages.

[25] You have no previous convictions. I have received a number of positive and supportive references, including from your former wife. And the fact that she is willing to support you speaks for itself. In earlier years you were constructively involved in employment with obvious skills.

[26] However, over a 10 year period to 2009 you were heavily addicted to methamphetamine. Over six of these years you manufactured methamphetamine. You made a lengthy statement following your arrest on the present matters outlining your involvement in manufacture. I accept that your addiction to methamphetamine is a contributing factor to the present offending. More importantly, you have made commendable efforts to get free of the addiction since your arrest in June 2009 and

you have made commendable efforts in turn to rehabilitate yourself. And it is relevant that you have been assisted by your former wife and your children.

[27] In 2005 – and I am bound to state this in your interests – you were diagnosed with cancer. It is in remission. I accept Ms Dyhrberg’s submission that this is a matter that I can take into account when assessing the length of a prison sentence – and other matters relating to sentence – although it is not something to which I can attach undue weight.

[28] You have expressed remorse, which I accept as genuine, together with acceptance of your criminality.

[29] In my judgment the sentence should be reduced by two years to take account of these matters personal to you. This produces an end sentence of nine years six months imprisonment.

Minimum period of imprisonment

[30] There is again the question of a minimum period of imprisonment. I have concluded that in your case, as with Mr Tang, there should not be a minimum period of imprisonment. My reasons are, in broad terms, the same. I have also taken account of your cancer which is presently in remission.

Mr Baird

[31] Mr Baird, you were found guilty on three counts of manufacturing methamphetamine and on three counts of supplying methamphetamine. You were not directly involved in manufacturing methamphetamine, but I am satisfied you actively assisted as a party. You were directly involved, as a principal, in supplying methamphetamine. I do not consider there is any basis for drawing any significant distinction between your role and that of Mr Tang in the supply of methamphetamine.

[32] In your case I consider that the supply of methamphetamine should be treated as the lead offence. It is not possible to determine how much you directly supplied, compared with supplies by others where you were guilty as a party. The offending certainly comes within band 3 of Fatu, dealing with supply – I emphasise supply – dealing with supply of large commercial quantities between 250 and 500 grams. The starting point for a principal offender is between eight to 11 years. I fix the starting point at eight years – which is at the bottom – for the three offences of supplying methamphetamine. This gives you the benefit of the doubt substantially as to quantity. This should be increased by two years for the three offences of manufacturing methamphetamine, where you were guilty as a active party but not directly involved in the manufacturing process.

Personal circumstances

[33] I come to your personal circumstances. You are aged 42. You have been married for 17 years. You have two teenage children.

[34] Some years ago you established a sound and lighting business for entertainment events and have operated that successfully for a number of years.

[35] However, at the time you committed these offences you were on bail on three other drug dealing charges as follows: