R v Mingsisouphanh [2018] NZHC 532 (26 March 2018)

Last Updated: 22 May 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-004-002723 [2018] NZHC 532

THE QUEEN

v

THAMMANOUN MINGSISOUPHANH

Hearing:	26 March 2018
Appearances:	F Culliney for Crown A Holland for Defendant
Judgment:	26 March 2018

SENTENCING NOTES OF VENNING J

Solicitors: Crown Solicitor, Auckland Counsel: A Holland, Auckland

R v MINGSISOUPHANH [2018] NZHC 532 [26 March 2018]

[1] Mr Minsisouphanh you have pleaded guilty to a number of serious drug offences. You have pleaded guilty to possession of material (t-boc methamphetamine) with intent to manufacture methamphetamine; possessing equipment with intent to manufacture methamphetamine; conspiring to manufacture methamphetamine; possession of ephedrine for supply; and possession of cocaine for supply.

[2] You are for sentence this morning following your acceptance of a sentence indication of the Court. At the outset Mr Holland sought an adjournment to enable you to attend a residential course at Odyssey House to address a gambling addiction. After hearing from counsel I declined that request. I did so for a number of reasons. There was no mention of such an addiction in the pre-sentence report and it was not a matter you raised. However, I accept from counsel that that is an issue and that you do have a gambling addiction. Notwithstanding that, the offer of a place in Odyssey House is not yet confirmed, and even if was, given the lengthy term of imprisonment that you will face the Court would not necessarily be prepared to grant bail for you to attend the course. Given the length of term of imprisonment you face there is a real risk of flight, particularly because you have no connection with New Zealand at all. You have real incentives to leave the country. Further, given the lengthy term of imprisonment that you face such a course could be undertaken at a more appropriate time during the course of your sentence if it is still necessary. It is not a case where completion of such a course at this stage would make a marked difference to the sentence the Court will impose.

[3] The background to your offending is this. On 14 January 2017 a consignment of cargo containing an estimated 160 litres of t-boc methamphetamine, labelled as dishwashing liquid, left Hong Kong. It arrived in New Zealand on 28 January 2017. A Customs examination revealed the t-boc methamphetamine. T-boc is added to methamphetamine that has already been manufactured to mask the methamphetamine. It can be removed through a chemical process enabling the remainder to be supplied as methamphetamine. Environmental Science and Research (ESR) estimate that with the addition of hydrochloric acid and the completion of an evaporation process the 160 litres seized was capable of producing 46 kgs of pure methamphetamine.
[4] A controlled delivery was made. On 18 February 2017 you and a co-offender, Mr Wong, uplifted the consignment and put it into storage in a storage unit at New Lynn. You had rented the storage unit the previous day.

[5] Later in the day on 18 February you left Auckland for Sydney. The police installed an audio and visual surveillance device in the storage unit at New Lynn. Mr Wong and a further co-offender, Mr Chan, were observed at the storage unit. You arrived back in Auckland on 23 February 2017.

[6] The next day, 28 February, you and Mr Wong went to the storage unit again. You took samples from one of the containers with the placebo inside it and you placed that into two small bottles. You put them in a plastic bag and then put that in the boot of the car, and went to Mr Wong’s address.

[7] On 2 March you and Mr Wong were again observed uplifting two boxes and placing them in yours and Mr Wong’s car. You then both travelled to Mr Wong’s address. Later that same evening you went to the storage unit again where you placed further items into the storage unit along with the t-boc methamphetamine that was there.

[8] Between 27 February 2017 and 13 March 2017 three parcels containing a rotary evaporator, an agitator and various other items of glassware and equipment arrived in New Zealand. They arrived under false descriptions.

[9] On 14 March you, together with Mr Wong and Mr Chan collected those packages containing the agitator and glassware and took them to an address in Lynfield where you unloaded them into a garage. You had previously collected the rotary evaporator and taken it to the storage unit. All three of you then went to the storage unit and loaded the contents of the unit into a rental van. You then went back to the address in Lynfield.

[10] Shortly afterwards you were located and arrested when the operation was closed down. The property you were living in at Newmarket with Mr Leung, another accused, was searched. A substantial amount of crystalline substances in plastic bags,
a crystalline substance in the process of being dried by a fan, brown liquid in numerous trays in a fridge and other items that could be used for the purpose of producing or manufacturing methamphetamine were located at the address. In your bedroom a plastic bag containing 962.8 grams of cocaine and two plastic bags containing a total of 1,551.6 grams of ephedrine were located.

[11] A search of the Lynfield address disclosed the t-boc methamphetamine and placebo and the various items of equipment that had been imported.

[12] When you were spoken to you initially declined to comment.

[13] Mr Minsisouphanh, in sentencing you the Court is required to take account of the purposes and principles of the Sentencing Act 2002. You engaged in this drug dealing with full knowledge of what you were involved in. You did so because of the financial return available to you and the others that you were associated with from such offending.

[14] The sentence the Court imposes must be sufficient to deter those who choose to engage in commercial drug dealing for profit. The sentence should make offenders such as you consider the risks of such offending. New Zealand should not be seen as having a weak response to such offending which is commercial in nature. Parliament has fixed a maximum penalty of life imprisonment for the possession of cocaine for supply and 14 years’ imprisonment for the conspiracy to manufacture methamphetamine and possession of ephedrine for supply charges.

[15] The sentence should also denounce offending of this nature. In a variety of ways this Court sees on a regular basis offending arising from or related to the dependence on drugs that you were involved with and which were to be sold to others.

[16] I take into account your personal culpability.

[17] Your offending and involvement involved a level of sophistication greater than simply compiling the ingredients for the manufacture of the methamphetamine or for dissolving methamphetamine in water to produce liquid methamphetamine. I accept
the Crown submission that on the conspiracy to manufacture charge it is appropriate to approach the sentence on the basis that the conspiracy was advanced, and bearing in mind the likely yield of methamphetamine that would have been available once the masking agent was dissolved away. The methamphetamine had been acquired, dissolved into t-boc and imported into New Zealand. All that remained was for the t- boc to be reconverted back into its solid form. This could have been done by simply adding hydrochloric acid. I note there were two five litre containers of hydrochloric acid located at the storage unit.

[18] In R v Te Rure & Watson¹ the Court of Appeal considered the application of sentencing levels in R v Fatu² for conspiracies to manufacture. The Court said the closer a conspiracy comes to execution the closer it becomes in seriousness to the actual illegal act being planned. The Supreme Court have confirmed that approach as appropriate.³

[19] There was a great deal of planning involved in this operation. You played an important and significant part in it. You were directly involved in the collection of the t-boc methamphetamine, and the rental of the storage unit. You were also directly involved at various times with your co-offenders in collecting, checking and shifting the materials and the t-boc methamphetamine. I do not find it helpful to attempt to seek to categorise your role with a label. It was an active and central role in the conspiracy.

[20] I also take into account the sentence imposed on Mr Chan, a co-offender. That is a relevant consideration. Gordon J took a starting point of 13 years and 10 months’ imprisonment for him. Mr Chan faced three charges, the three charges you face in relation to t-boc methamphetamine, whereas you also face sentence in relation to the possession of the ephedrine and cocaine for supply. However, in relation to the t-boc methamphetamine offending, I am prepared to infer from the summary of facts, which disclose Mr Chan’s repeated travel to and from Hong Kong, from where the t-boc

¹ R v Te Rure & Watson [2007] NZCA 305, [2008] 3 NZLR 627.

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

³ Jarden v R [2008] NZSC 69.

originated, that he had a more significant role in the conspiracy than you, and for that reason I take a lower start point on those charges for you.

[21] Counsel have both referred to a number of cases.⁴ I have had regard to these cases but do not propose to discuss them in detail.

[22] In relation to the methamphetamine offending, a starting point in the region of 12½ years would be appropriate. In relation to the cocaine, starting points of 10 to 11 years and on the ephedrine, five to six years would be sustainable on their own.

[23] Standing back and looking at the matter from a totality point of view, I take a starting point for all offending of 18 years’ imprisonment.

[24] From that I turn to your personal circumstances.

[25] You are 48 years old. You have lived the majority of your life in Australia. You have no children. While you were in a relationship prior to the offending, that no longer appears to be the case. Your mother is unwell, and your father is elderly.

[26] Mr Holland submits you are of previous good character, and have made efforts to rehabilitate yourself and that you are genuinely remorseful. He urges the Court to take account of the fact that you will be serving your sentence in prison in New Zealand, away from your family in Australia. I note his submission regarding the state

⁴ Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607; R v Clifford [2011] NZCA 360, [2012] 1

NZLR 23; R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 (CA); R v Gaylor HC Hamilton H25487, 14 October 2004; R v Fatu, above n 2; R v Chun Kit Yung [2017] NZHC 608; R v Wallace [1999] NZCA 89; [1999] 3 NZLR 159; R v Te Rure & Watson, above n 1; Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612; R v

Adams [2008] NZCA 171; R v Nguyen [2009] NZCA 239; R v Chan [2017] NZHC 2924; R v

Man [2017] NZHC 1197; Chea v R [2016] NZCA 207; R v Yuen [2016] NZHC 571; R v Sze

[2016] NZHC 1703; R v Graaf [2007] NZCA 43; R v Chin [2009] NZCA 445; R v Chan [2016]

NZHC 2376; R v McGoldrick HC Christchurch CRI-2007-009-7608, 14 August 2008; R v Peric HC Auckland CRI-2006-092-16557, 8 June 2007; R v Trebilco HC Auckland CRI-2006-092- 9502, 3 April 2007; R v Knox HC Auckland CRI-2006-004-020994, 14 February 2007; R v Seguel HC Auckland CRI-2006-092-010540, 24 August 2006; R v Peric HC Auckland CRI-2006-092- 16557, 8 June 2007; Clarke v R [2013] NZCA 473; R v McFarlane [1992] 3 NZLR 424 (CA);

R v Wickremasinghe HC Auckland T013408, 28 March 2003; R v Clarke [2012] NZHC 1692; R v Davis CA440/04, 20 October 2005; R v Ali CA371/05, 20 June 2006; R v Murphy HC Auckland CRI-2004-004-9111, 3 June 2005; R v Ogaz [2007] NZCA 45; R v da Silveria [2014] NZHC 791;

Agwu v R [2015] NZCA 619; R v Wang [2014] NZCA 409; R v Wallace [1999] NZCA 89; [1999] 3 NZLR 159

(CA); R v Yap [2016] NZDC 7859; R v Cavanagh [2015] NZHC 2498; R v Xie [2007] 2 NZLR

240 (CA); R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612; R v Zhou [2009] NZCA 365; R v

Anslow CA182/05, 18 November 2005; and R v Manuel [2013] NZHC 150.

of your parents’ health, which will mean that it is unlikely you will see your parents again.

[27] This is your first criminal conviction. I note you have no previous convictions in New Zealand, which is perhaps not remarkable, but there is no information to suggest you have any previous convictions in Australia either. I accept you have taken some positive steps to address the gambling addiction, which counsel has referred to.

[28] While you have also expressed remorse I do not consider it to be the genuine remorse discussed by the Supreme Court in Hessell v R.⁵ The report writer notes that you said your poor decision put your liberty at risk. It seems to me that your regret is directed at your own situation.

[29] I do however accept that it is appropriate to take into account that you will be serving your sentence in New Zealand away from your family and any support base. Against that you went into the offending fully aware of what you were doing. I note according to the pre-sentence report you thought it was easy money that you intended to use to help support yourself and your family.

[30] Overall, I reduce the starting point by six months for all personal factors, and then applying a 20 per cent discount, that reduced sentence leads to an end sentence of 14 years.

[31] I then turn to consider the minimum non-parole period which I note is not opposed. Before imposing such a sentence however, I take into account a number of factors, including the personal factors I have just referred to. They are again relevant at this stage of the consideration. However, having regard to those factors, but also having regard to ss 7 and 8 of the Act, I consider the standard non-parole period would be insufficient to address the need for denunciation and deterrence. I also note that Mr Chan received a minimum non-parole period of 50 per cent.

[32] Mr Mingsisouphanh would you please stand. On the lead charge of conspiracy to manufacture methamphetamine you are sentenced to 14 years’ imprisonment. On

⁵ Hessell v R, above n 4.

the possession of cocaine for supply, six years. On the possession of ephedrine for supply, four years. On the charges of possession of material and equipment, two years in each case. The sentences are concurrent. The effective sentence is 14 years’ imprisonment.

[33] In drug offending of this kind, deterrence is a significant factor. In your case a minimum non-parole period of 50 per cent is required for the reasons I have given. You are to serve a minimum non-parole period of seven years.

[34] You are discharged in relation to the remaining outstanding charges. Stand down.






Venning J