R v Sze [2016] NZHC 1703 (26 July 2016)

Last Updated: 26 December 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-004-003038 [2016] NZHC 1703

THE QUEEN

v

FUNG CHU WINNIE SZE

Hearing:	26 July 2016
Appearances:	S McColgan for the Crown M Kan for the Defendant
Sentencing:	26 July 2016

SENTENCING NOTES OF WOOLFORD J

Counsel: Michael Kan Law, Barristers and Solicitors, Auckland Solicitors: Meredith Connell (Crown Solicitor), Auckland

R v SZE [2016] NZHC 1703 [26 July 2016]

Introduction

[1] Ms Sze, you are here today for sentence having been convicted following a jury trial before me on three charges of class A drug offending. Those charges were one count of importing methamphetamine, one count of possessing methamphetamine for supply, and one count of conspiracy to supply methamphetamine.¹ The maximum penalty in respect of the importation and the possession for supply charges is life imprisonment.² The maximum penalty in respect of the conspiracy charge is 14 years imprisonment.³

Facts

[2] All the charges against you relate to approximately 40 kilograms of methamphetamine which was imported into New Zealand by way of a single cargo shipment by sea in early 2015.

[3] The shipment arrived at Auckland from Shenzhen, China, on 13 February 2015. It was labelled as containing 40 cartons of metal queue barriers. Inside the cartons were solid metal bases for the barriers and hollow metal pipes to be inserted into them. The methamphetamine was concealed within these hollow pipes. On arrival the shipment was forwarded to a logistics company to await delivery to the consignee.

[4] You and your husband, Mr Yuen, arrived in Auckland from Hong Kong on 1 March 2015. You are both Hong Kong Chinese nationals and informed customs officers that you had come for a holiday.

[5] Once here, you initially stayed in an apartment and then arranged to rent a detached house and garage at Stonefields in Mount Wellington. You arranged payment of the storage fees with the logistics company and organised delivery of the shipment to the Stonefields house. On 13 March 2015 you both went shopping and purchased a drill to be used for extracting the methamphetamine from the queue barrier poles.

¹ Misuse of Drugs Act 1975, s 6(1)(a) and (f) and s 6(2A).

² Section 6(2)(a).

³ Section 6(2A)(a).

[6] At this same time an investigation by New Zealand Customs led to an examination of the imported shipment. Approximately 40 kilograms of methamphetamine was discovered concealed in the queue barrier poles in four out of the 40 cartons. Customs personnel replaced the majority of the drugs with a placebo for the purposes of completing a controlled delivery.

[7] Between 13 March and 22 March 2015 you had a number of communications with an unknown male in Hong Kong who was obviously involved in the importation. You updated him on the receipt of the consignment and discussed what would be required by the New Zealand recipient for collection. You also expressed concern that the entire shipment should be uplifted as one because of the risks to you and Mr Yuen and complained that the transaction was already well outside the expected timeframe.

[8] On 22 March 2015 you returned to Hong Kong. Mr Yuen remained in New Zealand and the shipment, now containing only a small amount of methamphetamine and a large amount of placebo, was delivered to the Stonefields house the following day. Mr Yuen extracted the methamphetamine/placebo mix and repackaged it into 40 large snap-lock bags. He then organised a meeting to deliver a sample to the New Zealand based recipient, Mr Feng. This resulted in him delivering one snap-lock bag to Mr Feng while parked on Karangahape Road on 24 March 2015.

[9] Later that same evening a search warrant was executed at the Stonefields house where Mr Yuen was found. Inside the house were three backpacks containing 39 snap- lock bags of the methamphetamine/placebo substance, which together weighed approximately 39 kilograms. Also located were a set of scales, further snap-lock bags and handwritten documents detailing the weight of each bag.

[10] When spoken to by the Police, Mr Yuen said he had been approached by a male in Hong Kong and offered money to participate in the importation. He subsequently pleaded guilty to the same charges on which you have now been convicted and was sentenced on 5 April 2016.⁴

⁴ R v Yuen [2016] NZHC 571.

[11] You were arrested at the airport when you returned to New Zealand from Hong Kong on 27 March 2015. You acknowledged that you had helped to arrange the shipment on behalf of Mr Yuen’s boss in Hong Kong, but said that you believed the consignment to consist of building materials. That was the position you adopted at trial.

[12] The convictions entered against you demonstrate that the jury found that not to be the case. In light of the evidence at trial, I am also satisfied that you were a largely equal participant in the offending carried out by your husband. I do not assess the role you played as being significantly less important than his. For instance, even when back in Hong Kong, Mr Yuen sent you the weights of each of the 40 snap-lock bags into which he had repackaged the methamphetamine/placebo mix. You then met the organiser in Hong Kong and passed that information on to him.

Personal factors

[13] In sentencing you Ms Sze I will also have regard to your personal circumstances. You are 52 years old and a Hong Kong Chinese National. This is your first criminal offence of any real seriousness, and it appears that for most of your life you have been a productive member of society.⁵ You worked for many years as an administrator and safety manager in the construction industry, and you say in the letter that you have written to the Court that you enjoyed your job very much.

[14] You have two children living in Hong Kong, a son and a daughter. Your son suffers from a serious autoimmune condition and this is a cause of great worry and concern for you. You yourself have a history of mental illness and spent time in hospital for chronic depression and other psychiatric issues in 1994. It appears that for quite some time thereafter you were relatively well, but your difficulties worsened again when your son’s illness was diagnosed in 2014. At that point you were again referred to psychiatric services in Hong Kong and have been diagnosed with a major depressive disorder. You have not recently been able to cope with work. It is clear that these issues along with your worry for your son and your unfamiliarity with New

5. I note that Ms Sze informed the writer of the pre-sentence report that she was convicted of unlawfully using a neighbour’s electricity approximately 20 years ago in Hong Kong.

Zealand’s language and culture are likely to make a term of imprisonment particularly onerous for you. I will take that into account to the extent that I am able to today.

[15] Given the serious impact of methamphetamine, the pre-sentence report prepared on you by the Department of Corrections assesses your risk of harm as medium. Your risk of re-offending is, however, assessed as being low. When interviewed for the report you continued to deny the offending. For this reason it cannot really be said that you show insight or genuine remorse.

Approach to sentencing

[16] Sentencing involves a three step approach.⁶ The first step is to set a starting point based on the features of the offending itself, the second step is to adjust that starting point for the offender’s personal factors, and the final step is to apply a discount if one is available for a guilty plea.

[17] Throughout this process the Court will also have regard to the purposes and principles of sentencing in ss 7 and 8 of the Sentencing Act 2002. It is well established that the primary emphasis in cases of commercial scale importation and dealing in methamphetamine is on denunciation and deterrence. However, other relevant principles include the need to take into account the gravity of the offending and the particular offender’s culpability.

Starting point

[18] Beginning with your starting point Ms Sze, I take the lead offending to be the charge of importing methamphetamine. The guideline judgment for offending of this kind is R v Fatu.⁷ Under that decision, importing quantities of methamphetamine in excess of 500 grams falls into the fourth of four bands and requires the Court to set a starting point between 12 years and life imprisonment.

[19] In pinpointing the precise starting point within this band, the first considerations are the quantity of methamphetamine imported and the role played by

⁶ R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA) and Hessell v R [2010] NZSC 135.

⁷ R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72.

the offender.⁸ Other factors include the extent of the commerciality involved, the sophistication of the operation, and the period or duration of the offending. Parity with any co-offenders is likewise important.

[20] The Crown submits that the appropriate starting point in respect of your offending is between 22 and 23 years imprisonment. Twenty-three years imprisonment was the starting point adopted by the Judge who sentenced Mr Yuen and the Crown says that, as an equally culpable participant in the same offending, you should be treated in a like manner. It also emphasises the high level of commerciality involved, the crucial role played by you in the offending, and the large-scale sophisticated nature of the operation.

[21] Defence counsel, on the other hand, submits that the appropriate starting point for you is between 20 and 21 years imprisonment. He highlights, that unlike Mr Yuen, you were not involved in the actual unpacking of the drugs or in their supply to Mr Feng. Counsel says that these acts were more sophisticated than the aspects of the offending in which you actively participated. He characterises your role as assisting Mr Yuen by acting under his instructions and on his behalf due to his inability to speak English.

[22] The quantity of methamphetamine you imported, 40 kilograms, is obviously well into band 4. The evidence at trial also demonstrated that this was a very large scale commercial operation carried out with a significant element of sophistication. I do, however, take into account the fact that you yourself would not have received anywhere near the street value of the methamphetamine. It was accepted at Mr Yuen’s sentencing that he expected to receive a sum of a million Hong Kong dollars, or about NZ$190,000.

[23] As to your role in the offending, I do not agree with counsel’s characterisation of you as an assistant to Mr Yuen acting under his instructions only to the extent necessary. You were not a peripheral or secondary player. While neither of you were the masterminds or prime movers of the importation, you both played crucial roles. You travelled from Hong Kong to New Zealand in order to receive a consignment of

⁸ At [36].

class A drugs. Your participation included organising the delivery of the consignment in New Zealand as well as taking responsibility for communicating with those higher up the chain of offending in Hong Kong to organise the logistics of the operation. I consider, therefore, that while you were in New Zealand you and Mr Yuen were equal players.

[24] However, I do take account of the fact that you left New Zealand at an earlier stage and were not actively engaged in the later parts of the offending, including repacking the drugs and transporting a sample to Mr Feng. At Mr Yuen’s sentencing, Courtney J noted that if he had not previously known exactly how much methamphetamine was involved it would have been apparent when he extracted the drugs from the queue barrier poles. Because you were no longer present during this phase of the operation it is possible you did not have the same degree of knowledge. Given what you must have known about the scale of the operation, however, this cannot make a large difference to the starting point. But it does, in my view, justify a slightly lower starting point than that adopted for Mr Yuen.

[25] In light of these factors, I consider that the appropriate starting point for you is 21 years imprisonment on the lead charge of importing methamphetamine with an uplift to 22 years imprisonment to take account of the additional charges.

[26] In adopting this starting point I have also considered a number of cases involving similar offending. I note in particular R v Chen, in which offenders undertaking similar roles to yours received starting points of 25 years imprisonment for an importation of 96 kilograms of methamphetamine,⁹ and R v Kam in which offending similar to yours, but involving 60.9 kilograms of methamphetamine also attracted a starting point of 25 years imprisonment.¹⁰ Your offending is at a somewhat lower level than in those cases. In terms of offending less serious than yours, I note R v O’Connor in which an importation of 4.3 kilograms of methamphetamine resulted in a starting point of 18 years imprisonment.¹¹ I am therefore satisfied that adopting a 22 year starting point for you is consistent with those cases.

⁹ R v Chen [2009] NZCA 445.

¹⁰ R v Kam [2016] NZHC 110.

¹¹ R v O’Connor [2016] NZHC 440.

Adjusting for personal factors

[27] From this starting point I must now consider whether any adjustments are appropriate to recognise your personal circumstances.

[28] The Courts have repeatedly stated that the very serious nature of commercial methamphetamine offending limits the scope of discounts for personal factors.¹² However, it has also been affirmed that recognition of mitigating factors continues to be available in appropriate cases.¹³

[29] You are 52 years old and this is your first serious criminal offence. The Crown accepts that you are entitled to a modest discount for previous good character.¹⁴

[30] As I have said, there are also a number of factors which will make a sentence of imprisonment unusually difficult for you to serve. You are going to be incarcerated in a foreign country and will have to contend with an unfamiliar language. You will be a long way from your family and any support they could otherwise provide you. This may be particularly hard given your son’s illness and the very real concern you have for his welfare. Finally, prison will be made more difficult by your own health issues. In this respect the Court has been provided with a report from the Department of Psychiatry at the Prince Wales Hospital where you were treated in Hong Kong. It records that even prior to the current offending you were experiencing insomnia, poor appetite, depressive cognition and suicidal ideation. In recognition of the difficulty these factors will cause, I am prepared to discount your sentence by a further 10 per cent. This is greater than the discount allowed to Mr Yuen, but I note that he was in much better health and did not suffer from the same mental health issues.

[31] Finally, I have considered the fact that your offending, while financially motivated, appears to have stemmed from a desire to improve your family’s life in difficult circumstances.

¹² R v Jarden [2008] NZCA 69, [2008] 3 NZLR 612 at [12].

¹³ R v Hill [2008] NZCA 41 at [37]; R v Rawiri [2011] NZCA 244 at [19]- [23].

¹⁴ Referring to Wei v R [2012] NZCA 52 at [36].

[32] For all these factors together I consider that a total discount of 15 per cent is available to you. You did not plead guilty so no discount is available to you on that score. Your end sentence will therefore be one 18 years and eight months imprisonment.

Minimum period of imprisonment

[33] The final issue for me to consider is whether I should also impose a minimum period of imprisonment. The Court may impose such a period if satisfied that the default period would be insufficient for the purposes of holding the offender accountable, denouncing the conduct, deterring the offending or protecting the community.¹⁵

[34] After consideration, no minimum period was set for Mr Yuen. Despite this, the Crown submits that a minimum period of 50 per cent should be imposed in your case. Minimum periods are common for serious drug offending and the Crown says that a beneficent sentence on one co-offender does not necessarily justify the same approach for another. It submits that unlike Mr Yuen you failed to accept responsibility for your offending and highlights the particular importance of general deterrence in the context of methamphetamine dealing.

[35] I have considered these arguments carefully and agree that a minimum period of 50 per cent would usually be appropriate for offending as serious as yours. However, I am not going to impose a minimum period for you today. This is in some respects an unusual case. Although your offending is extremely serious, it is essentially a sole instance of criminal behaviour in an otherwise law abiding life. Like your husband, I consider that you are very unlikely re-offend. You were by no means the major player or king pin in this operation and, as I have said, prison will be particularly difficult for you. Moreover, even without a minimum period of imprisonment, your sentence will be lengthy and, in my view, provides sufficient denunciation and deterrence.

¹⁵ Sentencing Act 2002, s 86.

Sentence

[36] Therefore, on the charge of importing methamphetamine you are sentenced to
18 years and eight months imprisonment. On the charge of possession of methamphetamine for the purposes of supply you are sentenced to a concurrent sentence of the same length. Finally, on the charge of conspiracy to supply methamphetamine you are sentenced to a concurrent sentence of 13 years imprisonment.¹⁶

[37] You may stand down.

.....................................

Woolford J

16. Taking the approach to conspiracy offending in R v Te Rure [2007] NZCA 305; R v Yuen, above n 4; R v Haarhaus HC Auckland CRI-2007-004-018646, 24 July 2009 at [39].