R v Lee [2015] NZHC 976 (8 May 2015)

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Charges: Plea:	Mr Ma: Supplying pseudoephedrine x43 Mr Lee: Supplying pseudoephedrine x2; Possessing pseudoephedrine for supply x1 Guilty
Appearances:	S L McColgan for Crown S D Cassidy for Prisoner Lee M N Pecotic for Prisoner Tran B L Sellars for Prisoner Ma
Sentenced:	8 May 2015 Mr Ma: 9 years, 4 months’ imprisonment (concurrent); minimum non-parole period of 4 years, six months; _{Mr Lee: 2 years, 8 months’ imprisonment (concurrent)}

[1] Van Thanh Tran, Ziyang Ma and Yoke Kee Lee, you are for sentence for dealing in the Class B controlled drug pseudoephedrine.

[2] In your case Mr Tran you have pleaded guilty to one charge of importing pseudoephedrine, 38 charges of supplying pseudoephedrine, and two charges of possessing pseudoephedrine for supply. Mr Ma, you have pleaded guilty to 43 charges of supplying pseudoephedrine. Mr Lee you have pleaded guilty to two charges of supplying pseudoephedrine and one charge of possessing it for the purpose of supply. The maximum penalty for each of the charges is 14 years’ imprisonment.

[3] All charges were laid at the conclusion of large-scale police investigations into methamphetamine and pseudoephedrine distribution in the Auckland area. The investigation included a special duties undercover police officer, interception warrants, observation, and search and seizure.

[4] Mr Tran, although you have pleaded guilty, in an affidavit you have sworn for sentencing purposes and in counsel’s submissions you have challenged a number of facts alleged by the Crown in the summary of facts. To enable you to consider your position further, and for counsel to prepare for a hearing to resolve those issues you are remanded in custody for a disputed fact hearing on 18 and 19 May in this Court. You will be sentenced after that hearing.

August 2013 and 23 November 2013 you supplied 74 sets of ContacNT containing pseudoephedrine for Mr Tran’s customers. On a further 27 occasions, between 18

August and 30 November 2013, you supplied at least 155 sets of ContacNT containing pseudoephedrine for another dealer, Mr Zhang’s customers. It is not possible to determine the exact amount supplied because on 27 October while 30 sets were provided a number were possibly returned and while the transactions on 30

October and 9 November were observed by physical surveillance there was no intercepted communication to specify the amount supplied.

229 sets amounted to 51 kgs of ContacNT or around 20.6 kgs of pure pseudoephedrine.

[7] When the police operation was terminated on 4 December 2013, the police found you in possession of $8,000 cash.

[8] Mr Lee, you obtained consignments from overseas and then assisted Mr Tran by taking custody of amounts of the pseudoephedrine that Mr Tran then set about selling by instalment.

[9] In the course of that, on two occasions, 15 and 17 October 2013, you supplied pseudoephedrine at the direction of Mr Tran. On 22 October when the police executed a search warrant at your home they found boxes labelled as potato starch. In each box were 12 silver foil packets, each containing 1.5 kgs of ContacNT. There were also three loose bags containing 46.4 kgs of ContacNT. In total there were around 203 sets of ContacNT in your possession. At a street value this equated to controlled drugs with a value of about $1.6 million. The Crown however accepts you held them at Mr Tran’s direction for the purpose of supply to others.

[10] In sentencing you both Mr Ma and Mr Lee, the Court is required to have regard to the purposes and principles of the Sentencing Act 2002. Of primary importance in this case is the need to deter you and others from being involved in the supply of drugs such as pseudoephedrine. Pseudoephedrine is used to produce the pernicious and harmful drug methamphetamine. The authorities in New Zealand have taken steps to restrict the availability of pseudoephedrine in New Zealand. The operation you were involved in undermines those steps and enables the more serious drug methamphetamine to be manufactured and distributed in our community. The sentence must denounce offending of this nature, and promote in each of you a sense of responsibility for and acknowledgement of the harm caused by the supply of pseudoephedrine.

[11] In fixing the appropriate sentence the Court must also consider the gravity of the offending reflected by the maximum penalty for the offending, your individual culpability and sentences passed on other prisoners for similar offending.

[12] In the recent case of R v Wang the Court of Appeal confirmed the three categories for serious Class B drug offending.¹They are applicable in this case.

[13] A further factor in your case Mr Ma particularly is the need for the sentence to reflect the totality of your offending. In R v Xie²the Court of Appeal confirmed the totality principle applies in cases such as these.

[15] Mr Lee, in your case the Crown submit a starting point of between five and five years, six months’ imprisonment is appropriate before taking account of mitigating factors.

[16] Your counsel Mr Cassidy submits that initially at least you believed the drugs were legal Chinese medications as Mr Tran had told you. When you learnt the true nature of the drugs, you turned a blind eye to what you were involved in. Mr Cassidy submits that given your limited culpability a start point of four years’ imprisonment would be appropriate.

[17] Mr Lee I accept you can be categorised as a storeman who had a limited involvement in supply on only two occasions.

[18] A number of your co-offenders have already been sentenced by the Courts. Most relevantly Mr Ha was sentenced on two charges of supplying pseudoephedrine. The Judge took a starting point of four years in that case, although I note that was

_{based on a sentence indication given prior to the Court of Appeal
decision in Wang.}

[19] I agree with the Crown submission that a start point of more than the four years taken in Mr Ha’s case is required to reflect the level of your involvement and in light of the comments of the Court of Appeal in Wang. You supplied more than Mr Ha, and you have pleaded guilty to a further charge of possession for supply. I take a start point of four and a half years’ imprisonment.

[20] I then turn to your personal circumstances and mitigating factors. You are almost 70 and have no previous convictions and have been in New Zealand since

1990. You also appear remorseful and you are entitled to a credit for those factors. I fix that at eight months. Also you offered some assistance to the Police and, as counsel submits, were prepared to give evidence. Ultimately, however, your assistance was not required and was of limited value to the police. Nevertheless, bearing in mind that offer and counsel’s submissions I apply a further reduction of eight months for that factor.

[21] The last relevant factor by way of reduction of sentence is your guilty plea. You were initially arrested and charged in October and December 2013. You only entered your guilty pleas in late March 2015 ahead of the trial scheduled to commence 13 April 2015. In the circumstances and given the Crown evidence against you an allowance of 15 per cent as conceded by the Crown is the most that could be applied. Before imposing the final sentence I will deal with Mr Ma.

[22] Mr Ma, in your case the Crown submit an appropriate starting point for the totality of your offending is 14 years’ imprisonment before taking account of mitigating factors.

[23] Your counsel submits your role was limited to that of courier and you only received small cash payments each delivery. You did not share in the profits and she submits you were a courier operating at the direction of others who could have been replaced. She submits a starting point of nine to 10 years’ imprisonment is appropriate.

[24] On the summary of facts I accept that you are to be categorised as a courier who facilitated the supplies of pseudoephedrine for both Mr Tran and Mr Zhang.

[25] However even though a courier, in your case Mr Ma the extent of your involvement affects your culpability and supports a starting point towards the maximum penalty for an individual case of supplying pseudoephedrine. Given the number of charges you have pleaded to and the quantity of the drug that you were involved in supplying your case can properly be categorised as falling within the most serious of cases for such offending. Your role, while that of a courier, was an integral part of these substantial drug dealing operations.

[26] The sentences imposed on other prisoners associated with these operations are relevant. Mr Collier was sentenced for the supply of 21 ounces of methamphetamine.³The Judge took a start point of 10 years’ imprisonment. Ms Li

supplied 24.65 kgs over 16 transactions.⁴The Judge took a start point of seven

years, six months. Mr Davies was sentenced for supplying 25 ounces of methamphetamine and just under two kilograms of ContacNT.⁵The Judge took a start point of 12½ years’ imprisonment.

[27] The sentence imposed by Lang J on Mr Tarm is particularly relevant.⁶Mr Tarm pleaded guilty to eight charges of supplying methamphetamine, two charges of possessing methamphetamine for supply, one charge of conspiring to supply methamphetamine, 14 charges of supplying pseudoephedrine and one charge of possessing pseudoephedrine for supply. Although the offending involved Class A drug offending as well so that the maximum sentence available to the Court was life imprisonment it is relevant, taking into account totality principles, that the Judge considered a starting point of 17 years’ imprisonment was appropriate. I also note the Judge’s comments as to the starting point if the offending had been limited to the pseudoephedrine. Ms Sellars has properly submitted that Mr Tarm was found with

_{consider that to be a particularly compelling distinction given the
extent of your}

personal gain is only one feature. You were an integral and important part of the distribution network as is evidenced by the number of transactions you were involved in.

[29] I turn to your personal circumstances. You are 37 years old. You came to New Zealand from Vietnam with your family in 1997. You have four children, although you are separated from their mother. You had worked as a tiler but due to liver cancer were no longer able to perform a physical job. You are related to Mr Tran, who employed you as a courier.

[31] You have expressed sincere remorse for your involvement which the pre- sentence reporter accepts is genuine.

[32] The report writer assesses you as having a low risk of reoffending and posing a low risk of harm to others. You are assessed as having good insight into your offending and a willingness to change.

[33] I accept that a sentence of imprisonment will be particularly difficult for you due to your lack of English and the medical problems referred to in submissions.

[34] Counsel also refers to the restrictive bail conditions you were on, particularly the 24 hour curfew for 14 months which was relaxed from February this year. I accept some allowance should be made for that.

[35] I allow a reduction of 18 months to take account of those personal mitigating factors I have referred to.

[36] A further relevant mitigating factor is your guilty plea. You were arrested and charged on 4 December 2013 and your guilty plea was entered on 8 April, shortly before the trial was due to commence on 13 April. I accept counsel’s submission,

pleas were entered in relation to two sets of offending, the Tran and Zhang offending.

[37] In the circumstances and bearing in mind the evidence against you, however, I consider the reduction for the guilty plea can be no more than approximately 15 per cent. That leads to an end sentence of nine years, four months’ imprisonment.

[38] The Crown argue for a minimum period of imprisonment of 50 per cent. Ms Sellars submits a minimum period is not required noting that no MPI was imposed in cases of a number of other offenders involved in these operations. However the offending of those particular offenders was not as extensive as yours and two of them received substantially lesser sentences.

[39] The offending in your case Mr Ma is serious. The extent of your offending, the amounts involved, the value of the drugs involved, and the drugs themselves are directed at producing significant profits for those involved in the offending and seriously damage the community by making more harmful drugs available. I am satisfied it is necessary to impose a minimum non-parole period greater than one- third to hold you accountable for your actions, to denounce your offending and to the extent it is able, to deter you and others from engaging in similar conduct in the future, importantly also to protect the community from offending of this nature.

[41] Mr Lee, the end sentence for you is two years, eight months’ imprisonment. There is no minimum term. On the charges of supplying pseudoephedrine and possessing pseudoephedrine you are in each case sentenced to two years, eight months’ imprisonment. The sentences are to be served concurrently.

[42] Mr Ma, on the 43 charges of supplying the Class B controlled drug pseudoephedrine you are sentenced to imprisonment for nine years, four months. The sentences are concurrent. You are to serve a minimum non-parole period of four years, six months.

High Court of New Zealand Decisions

R v Lee [2015] NZHC 976 (8 May 2015)