R v Feng [2016] NZHC 1333 (17 June 2016)

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Counsel:	SL McColgan for Crown MJ Dyhrberg QC and PJ Barrowclough for defendant
Sentenced:	17 June 2016
Charges:	Conspiracy to possess methamphetamine for supply
Plea:	Guilty
_Sentence:	_{6 years 9 months}

Introduction ............................................................................................................[1] Facts .......................................................................................................................[2] Co-offenders...........................................................................................................[4] Personal circumstances ..............................................................................................

Character References [9] Purposes and Principles of Sentencing ................................................................ [11]

Submissions................................................................................................................

Sentencing ..................................................................................................................

Analysis ......................................................................................................................

Adjusting the Starting Point [33] Minimum Period of Imprisonment.......................................................................[41] Conclusion............................................................................................................[43]

[1] Mr Feng, you appear for sentence today having pleaded guilty to one count of conspiring to possess methamphetamine for the purpose of supply for which the maximum penalty is 14 years imprisonment.¹Your trial on this charge was set down to begin on 23 May 2016; you entered your guilty plea at callover on 18 May 2016.

[2] The facts of your offending can be shortly stated. Prior to 24 March 2015, you communicated with Mr Yeun, a Hong Kong national who was visiting New

24 March 2015, you met Mr Yeun on Karangahape Road in Auckland and took a white crystalline substance from him. You thought the substance was methamphetamine but in fact most of the methamphetamine had been replaced with rock salt by the New Zealand Customs Service.

[3] Later that day, police executed a search warrant on your house. In your lounge area, they located one kilogram of the rock salt as well as snap lock bags, scales and other items associated with dealing methamphetamine.

[4] Your co-offender, Mr Yeun pleaded guilty to importing and possession for supply of 40 kilograms of methamphetamine, and one charge of conspiring to supply one kilogram of methamphetamine. He was sentenced on 5 April 2016 to 15 years seven months’ imprisonment by Justice Courtney.²For the charge of conspiring to supply, he was sentenced to 12 years to be served concurrently. Justice Courtney did not impose a minimum period of imprisonment.³

[5] Your, co-offender, Ms Sze was convicted following trial of importing, possessing for supply, and conspiring to supply methamphetamine. She has not yet been sentenced.

[6] Mr Feng, you have six previous convictions which are, in comparison with your current charge, for minor offending. There are two convictions for driving with excess breath alcohol, one for wilful trespass, one for failing to answer District Court bail, one for obstructing/hindering police and one for driving while your licence was suspended or revoked. You have never received a sentence of imprisonment.

[7] The pre-sentence report states that it is concerning that you have progressed to serious offending from a baseline of what could be considered nuisance offending.

[8] There appears to have been some confusion during your interview for the pre-sentence report which was carried out through an interpreter. In the report it stated that you continued to maintain your innocence. However, I accept that this was a miscommunication. The report writer wrongly believed that you were facing multiple charges and so, when she discussed other charges with you, you maintained your innocence towards those charges. Accordingly, I put to one side the contents of the pre-sentence report as it relates to your feelings of remorse and acknowledgement of your offending.

[9] Mr Feng, you are 38 years old. You have a wife and two teenage sons and your parents live in your home with you. You have a house painting business which employs four people.

[10] You have provided the Court with seven character references from your wife, employees, church chairman, neighbours and business acquaintances. All of these references are glowing. They say that you are a diligent worker who manages his team well and that you are a trustworthy and caring person. Your employees say that your imprisonment will cause hardship for both them and their families. It will also cause hardship for your family including your teenage sons and elderly parents.

[11] In sentencing you today I am required to take account certain purposes and principles set out in the Sentencing Act 2002. The relevant purposes which I must take into account are to promote in you a sense of responsibility for, and acknowledgement of, the harm that methamphetamine causes the community, denounce the conduct which you are involved in, and deter and denounce both you and others from supplying or possessing methamphetamine in the future.

[12] When deciding on your sentence I am required to take into account the gravity and seriousness of your offending and your culpability. Offending involving methamphetamine is always serious, but I must also have regard to the role you played in that offending. I must also endeavour to ensure that your sentence is comparable with sentences given for other like offending.

[13] Finally, I must impose the least restrictive sentence that is appropriate in the circumstances.

[14] The Crown submits that a starting point of between 10 and 11 1/2 years’ imprisonment is appropriate, with a discount of up to 20 per cent for your guilty plea. The Crown does not request that the Court impose a minimum period of imprisonment.

[15] Your counsel has submitted that a starting point between 8 years, 3 months and 9 years is appropriate with discounts of 20 to 25 per cent for guilty plea and five to 10 percent for previous good character and remorse.

[16] The tariff case for offending involving methamphetamine is R v Fatu.⁴In that case, the Court of Appeal adopted the following bands for cases involving the sale or supply of methamphetamine:⁵

(a) Band one — low level supply (less than five grams) — two years to four years imprisonment.

(b) Band two — supplying commercial quantities (five grams to 250 grams) — three years to nine years imprisonment.

(d) Band four — supplying very large commercial quantities (500 grams or more) — ten years to life imprisonment.

[17] The Court also stated that “Where an offender fits within any particular band will depend not just on the quantity and purity of the drugs involved but also the role played by the offender.”⁶Of course in this case the charge is one of conspiring to possess for supply rather than the charge of possession for supply. This means that the maximum penalty is 14 years’ imprisonment rather than life imprisonment and the bands must be adjusted accordingly. One of the leading cases on conspiracy to commit methamphetamine related offending is R v Te Rure which involved charges of conspiracy to manufacture methamphetamine.⁷In that case the Court stated:

[25] It has been accepted by this Court that a reduction of these levels is appropriate where an offender faces a conspiracy charge rather than one of manufacturing methamphetamine (Bryan at [57]). This is consistent with the different maximum penalties for those offences, and with the fact that planning something illegal is logically less serious than actually doing it. However, it is equally logical that, the closer a conspiracy comes to execution, the closer it becomes in seriousness to the actual illegal act being planned.

[26] In Fatu, this Court said that, as a matter of principle, the manufacture of methamphetamine necessarily involved criminality at two levels, the possession of precursor equipment and the use of that equipment to manufacture methamphetamine (at [41]). Where the charge is conspiracy to manufacture methamphetamine, there is a different kind of criminality involved; the making of such an agreement is itself inimical to the public good, whether it goes further or not (R v Henry [1997] 1 NZLR 151 at 152).

[27] Where a conspiracy to manufacture methamphetamine proceeds no further than a theoretical plan, only the third level of criminality requires to be addressed in sentencing. In such cases, offenders should expect a substantial reduction of the Fatu sentencing levels. However, where a plan has been developed to the point of action, the first two levels of criminality must be addressed as well. Where all three levels of criminality are present, offenders should expect a very small discount indeed (see R v Emirali CA 177/06 12 December

2006 at [35]). Sentencing judges should continue to be guided by the proviso that this Court articulated in Fatu (at [40]) that:

As a matter of principle, an offender should only be sentenced in relation to offending which he or she admits or which the

Crown can prove. It is not right for an offender to be sentenced on the basis of offending that he or she would or could have committed had the police not intervened. On the other hand, the Courts must take a realistic view of the dynamics of this particular form of offending. Those who gear up to manufacture methamphetamine are not likely to be content with a single

‘cook’. As was recognised in Worth v R [2001] WASCA 303 at para [50], the ‘practical potential of the operation’ must be a relevant consideration.

[18] In that case the District Court Judge had found that the offenders had “geared up in a significant way to manufacture methamphetamine” and that the offending was “scarcely inchoate”. Accordingly, on appeal, the Court of Appeal found that the discount for the fact that the charge was conspiracy should be small, no more than five to 10 percent.

[19] The approach take in R v Te Rure was later approved by the Supreme Court in

Mr Jarden is not, on the present facts, assisted by having been convicted on a charge of conspiracy to supply rather than supply itself. As the Court of Appeal pointed out in R v Te Rure, the seriousness of the offending may well increase as a conspiracy comes closer to execution. Indeed upon execution, and while weight must be given to the higher penalties for supply rather than conspiracy to supply, the element of conspiracy in some circumstances may be seen as aggravating the seriousness of the offending rather than mitigating it.

[20] Counsel for the Crown has referred the Court to the cases of Hohipa v R,¹⁰

Banaba v R,¹¹and Nathan v R.¹²In Hohipa v R, Mr Hohipa pleaded guilty to one charge of conspiracy to supply methamphetamine. In the Court of Appeal, it was held that the District Court Judge had misinterpreted the agreed summary of facts and so the Court of Appeal undertook again the exercise of selecting a starting point. The Court proceeded on the basis that the methamphetamine involved was at least

imprisonment). Taking into account the offender’s role and the nature of the offence,

[21] In Banaba v R, the offender was charged with three counts of conspiring to import methamphetamine along with a representative charge of selling cannabis. The Court noted that the conspiracy was well advanced, stating:

[31] The methamphetamine involved in Counts 1 and 2 was intercepted by Canadian authorities at the final stages of being transported to New Zealand. The methamphetamine involved in Count 3 arrived in New Zealand.

[32] In these circumstances, the appropriate approach when sentencing Mr Banaba was to allow a small discount to the sentence that would otherwise be imposed under Fatu to reflect the fact Mr Banaba pleaded guilty to charges involving conspiracies. A discount in the range of five to 10 per cent was appropriate.

[22] In that case, the methamphetamine involved in the first two charges alone was 6.75 kilograms of methamphetamine. The District Court Judge had adopted a starting point of 15 years’ imprisonment. The Court of Appeal determined that a

13 year starting point was more appropriate. Also relevant to this case is the Court of Appeal’s approval of a 12 per cent discount for a guilty plea which had come the week before trial.

[23] In Nathan v R, the offender pleaded guilty to supplying methamphetamine and conspiracy to supply methamphetamine which occurred whilst he was in prison serving a life sentence for murder. In relation to the charge of conspiracy to supply methamphetamine, which involved two kilograms of methamphetamine, the Court of Appeal held that sixteen years would be the appropriate starting point to reflect the amount of methamphetamine and Mr Nathan’s central role. The Court then made an uplift to reflect the fact that the offending happened from prison.

[24] Your counsel has referred to a number of cases in which the court has reduced the Fatu tariffs by 30 per cent to reflect the difference in maximum sentence.

[25] In the 2006 High Court case of R v Johnson, the offender had pleaded guilty to conspiracy to supply methamphetamine.¹³The methamphetamine involved placed

_{the offending at the bottom of band two. Justice Asher considered that
“...a starting}

point of a little over three years would have been appropriate. Given that this is the lesser charge of conspiracy. I consider that penalties of one-quarter to one-third lower should be considered.”¹⁴

[26] In another 2006 High Court case R v Savage, the offender had pleaded guilty to seven charges under the Misuse of Drugs Act 1975.¹⁵Three of these were conspiracy charges for conspiring to manufacture methamphetamine, conspiring to supply methamphetamine, and conspiring to supply equipment. The first two charges were taken as the lead charges. Justice Lang noted that there was no clear authority as to how starting points should be set for conspiracy charges. The Judge applied the Fatu bands noting that the culpability of the offender, the nature and scope of the conspiracy, and the extent to which the offender participated in it will also be relevant.¹⁶The Judge then went on to say:¹⁷

30 per cent to reflect the fact that a maximum sentence of 14 years imprisonment is roughly 70 per cent of 20 years (being a nominal figure for

[27] R v Haarhaus is a later decision, being delivered by Stevens J in 2009.¹⁸In that case the offender pleaded guilty to 12 drug related charges, four of which related to methamphetamine. In that case the Judge stated:

[37] I have had regard to the various cases involving conspiracy offending; R v Savage HC WHA CRI 2005-029-1267 21 July 2006, R v Te Rure [[2007] NZCA 305; 2008] 3 NZLR 627. I note that the usual approach is that the High Court will revise down the Fatu tariffs for supply by around 30 percent to reflect the approximate 30 percent difference in maximum penalty: see R v Johnson HC WHA CRI 2006-088-

[28] When the police carried out a search on your house, they located one kilogram of placebo. You have accepted that you thought that this was methamphetamine. Accordingly, I must sentence you on the basis that you engaged in a conspiracy to possess one kilogram of methamphetamine. This places you in band four of Fatu, being twice the amount at which band four starts.

[29] However, the starting point cannot be set only by considering the amount of methamphetamine involved. I must also consider the role that you played in the offending. I have no doubt that you were not the principal offender or even a major player in the operation, which was large scale and involved importing methamphetamine into New Zealand from overseas. However, nor am I convinced that you were merely a courier, in the sense that the word is ordinarily used in cases such as these. Your role justifies a starting point at the lower end of band four. If this was a charge of possession for supply I would adopt a starting point of 10 years’ imprisonment.

[30] I now need to take into account that you have pleaded guilty to conspiracy to possess for supply rather than possession for the purposes of supply. In my view, while a reduction of 30 per cent may be appropriate in some, if not most conspiracy cases, a reduction based solely on the difference in maximum penalties has the potential to be clumsy. The bands in Fatu reflect the role of the offending and the gravity of the offence based on the amount of methamphetamine. In the case of a conspiracy charge, there needs to be further flexibility to reflect the variation in culpability and offending that may exist within the conspiracy charges. This is the position adopted by the Court of Appeal in Te Rure and the Supreme Court in Jarden.

[31] In your case, the conspiracy only failed to eventuate into possession for supply because customs officials had swapped the methamphetamine for rock salt. Any reduction in your culpability is minimal. I consider that a discount of 10 per cent from the Fatu bands is the most that I can afford you in the circumstances.

[32] Therefore, after taking into account the amount of methamphetamine you conspired to possess, your role in the operation, and the fact that the charge you face is for conspiracy, I adopt a starting point of nine years’ imprisonment.

[33] There are no aggravating features relating to you personally which warrant an uplift in the starting point. While previous convictions can be an aggravating feature, your previous convictions are minor and sufficiently far removed from your current offending that they do not justify an uplift.

[34] Your counsel has submitted that you should be entitled to a meaningful discount for previous good character, remorse and supportive friends and family. Previous good character and remorse are recognised as mitigating factors under s 9 of the Sentencing Act.

[35] As stated by the Supreme Court “... in sentencing those convicted of dealing commercially in controlled drugs the personal circumstances of the offender must be subordinated to the importance of deterrence. But this does not mean that personal circumstances can never be relevant.”¹⁹A Judge may take into account the offender’s circumstances because they contributed to the offending, or on purely compassionate grounds.²⁰In this case, there are no personal circumstances that have contributed to your offending.

[36] I have read the letter that you have written to the Court. In it, you express your regret for what you have done. You say that you pleaded guilty because you understand that your behaviour was wrong. You say that you love New Zealand, which has given you a beautiful living environment, and that you understand that P does a lot of harm in New Zealand communities, not only to people who use it but also to their families. I consider that you are truly remorseful and have gained some insight into your offending and the harm that methamphetamine causes the

Methamphetamine is currently the most serious illegal drug in New Zealand in terms of the harm caused by its use and the value generated in the unlawful industry of its manufacture and sale. Those dealing in methamphetamine are trafficking human misery.

I accept that you appreciate this now and that you are genuine in your intentions never to make the same mistakes again.

[37] I also acknowledge that while you have minor previous convictions you have generally lived a positive and productive life. You have a business which provides employment and you are well regarded in the community. Those who have written letters in support of you express their shock about the charge you face.

[38] As stated above, there is a limit to the extent to which I can take into account your personal circumstances. In this case, I discount your sentence by five per cent for these factors.

[39] Your counsel has submitted that a discount of 20 to 25 per cent for your guilty plea is appropriate while the Crown contends that up to 20 per cent is the appropriate figure. I understand that you had a communication breakdown with your original counsel and that once you appointed Ms Dyhrberg matters progressed ‘very rapidly to a sensible resolution.’ Nonetheless, in my view, a discount by the full

25 per cent is not appropriate when all the circumstances are considered. I consider that you are entitled to a discount of 20 per cent.

[40] A discount of 25 per cent from 9 years’ imprisonment leads to sentence of six years and nine months’ imprisonment.

[41] The Crown has not sought a minimum period of imprisonment in your case, a position which, of course, is shared by your counsel. It would, nonetheless, be open to me to impose a minimum period of imprisonment if I thought it was necessary pursuant to s 86 of the Sentencing Act.

[42] I do not consider a minimum period of imprisonment is required here given the length of the sentence I am imposing. I also note that no minimum period of imprisonment on your co-offender, Mr Yuen, whose offending was far more serious than yours was imposed. If I impose a minimum period of imprisonment on you it would likely create a disparity meaning that your sentence would be manifestly excessive.

[43] Mr Feng, please stand. On the charge of conspiracy to possess methamphetamine for supply I sentence you to six years, nine months’ imprisonment.

High Court of New Zealand Decisions

R v Feng [2016] NZHC 1333 (17 June 2016)

High Court of New Zealand

R v Feng [2016] NZHC 1333 (17 June 2016)