R v Lia [2016] NZHC 2157 (13 September 2016)

Last Updated: 18 November 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-004-005841 [2016] NZHC 2157

THE QUEEN

v

_{KET CHUN LIA}

Hearing:	13 September 2016
Appearances:	K C Chang for Crown P F Wicks QC for Prisoner
Judgment:	13 September 2016

_{SENTENCING REMARKS OF PALMER J}

Solicitors/Counsel:

Meredith Connell, Auckland

P F Wicks QC, Auckland

R v LIA [2016] NZHC 2157 [13 September 2016]

Introduction

[1] Mr Ket Chun Lia, on 27 July 2016 you were convicted by a unanimous jury, under s 6 of the Misuse of Drugs Act 1975, of supplying the class A drug methamphetamine.

[2] Methamphetamine was reclassified as a class A drug in New Zealand in 2003 to reflect its very high risk of harm. The Health Select Committee of the House of Representatives which reviewed the order noted that methamphetamine “appeals to vulnerable populations, has a high physical and psychological dependence potential, and can lead to long-term adverse physical and psychological effects.”¹ It had been linked to deaths and poses significant risk to public health. Its classification was said by the Committee to “serve as a signal that methamphetamine is one of the most dangerous of drugs”. Those dealing in methamphetamine are causing human misery.

[3] Classification of methamphetamine as a class A drug means the maximum sentence that may be imposed is life imprisonment. Parliament has decided there must be a presumption that a person convicted of supplying methamphetamine will receive a sentence of imprisonment.² I now have to decide what sentence should be imposed for your conviction.

Facts

[4] You were convicted of supplying 54.2 grams of methamphetamine to

Mr Ryan McLaren for $9,500 on 3 April 2015.

[5] Mr McLaren pleaded guilty to, and was convicted of, supplying 19.15 grams of methamphetamine over 29 instances between 1 August 2014 and 3 April 2015. The quantities ranged between 0.25 and 2.5 grams. He also pleaded guilty to possession for supply of the 54.2 grams he acquired from you. Mr McLaren is a street level dealer – a retailer. Your supplying of 54.2 grams was more at the wholesale level.

¹ Health Committee Misuse of Drugs (Changes to Controlled Drugs) Order 2003 (April 2003) at

_3.

² Misuse of Drugs Act 1975, s 6(4)(a).

[6] The Police intercepted Mr McLaren’s phone conversations. There were a number of telephone calls between you and him on 2 and 3 April 2015, some of which used code common in drug dealing. The content of those calls suggests Mr McLaren negotiated to buy methamphetamine from you for $9,500. The Police followed him. They watched him meet you around 8.45 pm in a Nando’s restaurant, in a carpark in Albany, Auckland. You met him, then left. At 9.30 pm you returned to the same place, where Mr McLaren had stayed. You had a further brief interaction and then you both left. The Police arrested Mr McLaren when he got home and found two packages of methamphetamine on him.

[7] The jury decided that you gave the packages of methamphetamine to Mr McLaren and you knew that what was in it was a controlled drug. The jury found you guilty of supplying it.

Approach to sentencing

[8] Under New Zealand law there are three parts to the process of imposing a sentence:³

(a) First, I set a starting point based on the offending here compared with previous similar cases.

(b) Second, I consider your personal circumstances and adjust the starting point based on any aggravating or mitigating factors.

(c) Third, where an offender has pleaded guilty, there would usually be a discount. But that does not apply in your case.

[1] Sentencing is conducted according to the principles in ss 7 and 8 of the Sentencing Act 2002. In particular I have regard to the need to hold you accountable for the harm your offending has done to the community, the need to promote in you a sense of responsibility for, and acknowledgement of, that harm, and the need to denounce the conduct in which you were involved. I am particularly mindful of the need to deter others from committing the same or a similar offence. That is an

³ R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

important consideration with drug-related offending. I also take into account the need to help you with rehabilitation and reintegration into society once you have served your sentence. I have regard to the relative gravity of your offending, your culpability, the seriousness of the offence, and the need to ensure your sentence is consistent with other sentences for this type of offending, including that imposed on Mr McLaren, as well as the requirement to impose the least restrictive outcome appropriate in the circumstances.

Starting point

[9] In a case called R v Fatu the Court of Appeal categorised methamphetamine dealing into four bands of seriousness.⁴ The quantity you supplied places your offending in band 2 – supplying commercial quantities of methamphetamine between five and 250 grams. The starting point is to be between three and nine years’ imprisonment.

[10] The Court of Appeal requires that I look at the role you played in the overall offending. I accept you acted as a wholesale supplier of methamphetamine. The quantity you supplied was at a wholesale level. You drove the interactions with Mr McLaren and directed the arrangements for the meeting. You used code in your communication with him and were found to have several cell phones. You were not just a street level dealer like Mr McLaren. The starting point for Mr McLaren’s sentence was four and a half years’ imprisonment – having been reduced by six

months because his offending was considered to be driven by his drug addiction.⁵

[11] In your case, the Crown submits the appropriate starting point is between four and a half and five years’ imprisonment. It points to the commercial nature of your drug dealing indicated by the cash you were paid, the involvement by others suggested by the telephone intercepts and the relatively sophisticated nature of the offending – using multiple locations and using code in communications.

[12] On your behalf, Mr Wicks QC submits that the starting point should be no

_{more than four and a half years’ imprisonment. He submits this is consistent with}

⁴ R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).

⁵ R v McLaren [2016] NZHC 1431 at [14].

the starting point in the cases referred to by the Crown as well as two other Court of

Appeal cases – R v McPherson and R v Yuen.⁶

[13] I have considered the arguments of the Crown and Mr Wicks and the authorities they cite. I consider an appropriate starting point is imprisonment for four years and nine months. My reasons are:

(a) Your offending dealt in a quantity of methamphetamine at a wholesale level - larger than that in most other convictions in respect of one instance of offending. Similar amounts supplied by street level dealers have incurred a lower starting point. So, in McPherson the Court of Appeal indicated a starting point of four years’ imprisonment for supply was appropriate for a street dealer for 40 grams. The High Court in R v Albert gave supply of 80 grams, in small quantities by a street dealer with an addiction problem, a starting point of four and a half years.⁷

(b) Wholesale supply attracts longer sentences. In R v Mene, supply of

42 grams by a middleman in a larger operation, as well as supply of precursor substances and possession for the purposes of supply, was given a starting point of five years, nine months.⁸ In R v Murray, supply of 64 grams of methamphetamine by Ms Rundberg as a “broker” was given a starting point of five years.⁹ There was clear evidence in both Mene and Murray of involvement in a wider operation supplying large quantities of methamphetamine on multiple occasions over a significant period. Here, the only direct evidence is of supply on one occasion.

(c) I do not consider the nature of the operation was particularly sophisticated. The codes you used were relatively basic and used inconsistently. But to be able to access that amount of

⁶ _{R v McPherson [2009] NZCA 487; Yuen v R [2010] NZCA 521.}

⁷ _{R v Albert [2016] NZHC 241.}

⁸ _{R v Mene [2014] NZHC 1404.}

⁹ R v Murray [2014] NZHC 1843.

methamphetamine in less than an hour indicates organised access to a significant amount of methamphetamine quickly. The Court of Appeal indicated in Yuen four years was “well within the range available” for supply of 51.5 grams of methamphetamine by someone involved in a commercial importation operation. That suggests there was latitude for a higher sentence. Here I consider it necessary to recognise the need for relative consistency with Mr McLaren’s sentence.

(d) Your starting point is similar to, but slightly higher than, the starting point for Mr McLaren of four and a half years. You do not face a representative charge but your offending was higher up the production line. And you do not appear to have been suffering from a serious drug addiction yourself which reduced Mr McLaren’s starting point down from five years.

Personal circumstances

[14] You are 32 years old and, until the offending, were self-employed selling USANA nutritional products. You are originally from Malaysia. You arrived in New Zealand with your family in 1994, when you must have been about 10 years old. In

2014 I am told you divorced your wife in China. You have family in Malaysia and in New Zealand. At the time of the offending you were in New Zealand on a resident’s visa.

[15] In New Zealand you have two previous convictions. One, in 2012, was for possession of methamphetamine for which you were fined. The other was for driving without a licence for which you were discharged. Aside from the previous link to methamphetamine, these offences do not have great relevance to this sentencing.

[16] I have had the benefit of reading the Provision of Advice to Courts report prepared by the Department of Corrections about you. It observes that you have offending-affirming attitudes as well as potential drug use and gambling problems. I note that Corrections recommends, on release, your attendance at an appropriate

alcohol and drug programme and assessment for a gambling programme. No doubt that will be considered by the Parole Board.

[17] Corrections assesses your risk of re-offending as low to medium; increased if you have untreated addiction problems. Your risk of violent harm to others is low. But Corrections records that you continue to deny your offending and are unwilling to accept responsibility for your actions. It says you present yourself as the victim of the actions of others rather than showing any remorse for your offending.

[18] I have also received a number of character references from your family and your friends. They are consistent in expressing surprise and disappointment at your offending, which they consider out of character. Certainly, the picture of your character that they paint is inconsistent with ignoring the misery to individuals and families caused by supplying methamphetamine. They describe you as a loving and respectful son and a kind and dedicated friend. Your Godmother also refers to efforts you have made in your wider community, volunteering to assist and translate for new immigrants at doctor’s visits or immigration appointments. These are positive contributions and I will bear them in mind today to the extent I am able given the seriousness of your offending.

Aggravating or mitigating factors

[19] I agree with the Crown and Mr Wicks that there are no aggravating factors personal to you that warrant any uplift to your sentence. Your two previous convictions do not increase the sentence but neither do they mean I can give you a discount for good character. You do not express remorse so I cannot give you a discount for that.

[20] However, I do agree with Mr Wicks that there should be a modest discount for the restrictive bail conditions you have experienced. For some six weeks you were subject to a 24 hour curfew and for four months a 20 hour curfew. From December 2015 you were subject to a nine hour curfew each day between 10 pm and

7 am. There is no suggestion of any breach of bail in that time or during the rest of your almost 15 months on bail. I consider the six months or so of considerable

restriction on your liberty should result in a discount from your sentence of three months.

Minimum period of imprisonment

[21] The Crown does not seek a minimum period of imprisonment and I do not impose one. You offending falls short of the threshold for very serious drug dealing for which a minimum period of imprisonment would be required.

Sentence

[22] Mr Lia, on the charge of supply of a class A drug, methamphetamine, you are sentenced to imprisonment for four years and six months. You will be eligible for parole after serving a third of your sentence. On release you may be subject to conditions requiring attendance at drug and gambling assessment programmes.

[23] This is an opportunity for you to turn your life around – to make sure you put behind you any drug or gambling problems, and return to a safe and lawful life with your family and friends who support you. Whether you take the opportunity is up to you. That is all. Please stand down.

Palmer J