R v Liu [2018] NZHC 853 (30 April 2018)

Last Updated: 11 June 2018

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CRI-2014-085-006779 [2018] NZHC 853

THE QUEEN

v

JAMIE LIU

Counsel:	P K Feltham for Crown I M Antunovic for Defendant
Sentence:	30 April 2018

NOTES ON SENTENCE OF COLLINS J

[1] Mr Liu, you appear for sentence in relation to the following charges:

(a) one representative charge of supplying methamphetamine;¹

(b) one representative charge of offering to supply methamphetamine;² and

(c) one charge of participating in an organised criminal group.³

[2] You pleaded guilty to these charges after accepting a sentence indication I gave you on 9 February 2018.⁴

¹ Misuse of Drugs Act 1975, s 6(1)(c) and (2). Maximum sentence of life imprisonment.

² Section 6(1)(c) and (2). Maximum sentence of life imprisonment.

³ Crimes Act 1961, s 98A. Maximum sentence of 10 years’ imprisonment.

⁴ R v Liu [2018] NZHC 95.

R v LIU [2018] NZHC 853 [30 April 2018]

Your offending

[3] You were arrested on 10 June 2014 as part of Operation Fantail, an investigation by the Organised and Financial Crime Agency of New Zealand into a large-scale methamphetamine supply network in Wellington and the surrounding districts.

[4] The members of this syndicate demonstrated a high level of criminal knowledge and sophistication, well beyond that of a typical street dealer. Their turnover was so high that members were trading in multiple ounces of methamphetamine at a time.

[5] You were involved in the sale and distribution of methamphetamine. You arranged for bulk supplies of methamphetamine to be purchased through a supplier. You were in contact with senior gang members in relation to sourcing and supply. On a number of occasions, you sold methamphetamine to Mr McKinley for the purposes of on-supplying that methamphetamine.

[6] Your role was to supply bulk amounts of methamphetamine for on-supply within the Wellington based network. You travelled to Auckland regularly to bring methamphetamine to the lower North Island.

[7] On 15 April 2014, you borrowed $7,000 from Mr McKinley, flew up to Auckland to purchase methamphetamine and drove back to Wellington to deliver the drugs to Mr McKinley. On 18 April 2014, you supplied further methamphetamine to Mr McKinley. A total of 42 grams of methamphetamine was supplied.

[8] On 21 May 2014, you turned up unannounced at Mr Kinley’s apartment, but he was not home. You informed him the following day that you had five “crayfish”, a code name for methamphetamine, that you intended to sell to him. On 26 May 2014, Mr McKinley flew to Auckland to purchase methamphetamine, but was unable to secure a source. He asked you if you could arrange a transaction for him. You said that you were unable to do that, but you did offer to sell him or provide him with “one for seven”. A total of 142 grams of methamphetamine was offered for supply.

Your circumstances

[9] You are 41 years old and are currently a beneficiary. On 20 October 2015, you suffered a severe stroke from which you are still recovering. You suffered a further stroke on 23 December 2015. In early 2016, you underwent intensive rehabilitation in an acute brain injury facility. Thereafter, you had problems as a result of a number of seizures and blood clots. Part of your brain was removed during medical treatment. You suffered significant physical and mental impairments, requiring full-time assistance from a family member.

[10] You have 139 previous convictions, 44 of which are drug-related. Those drug related offences all occurred within the past 10 years and they comprise the vast majority of your offending to date. Notably, in 2008 you were sentenced to four years and eight months’ imprisonment on a raft of drug dealing charges.

Starting point

[11] There is a presumption in favour of imprisonment for Class A drug dealing.⁵

[12] The Court of Appeal’s decision in R v Fatu is the leading sentencing guideline judgment for offending involving the supply of methamphetamine.⁶ Your offending falls within sentencing band two, which provides that the supply of commercial quantities between five and 250 grams of methamphetamine warrants a starting point of between three years and nine years’ imprisonment.⁷

[13] In setting the appropriate starting point, I have taken into account the following aggravating features of your offending:

(a) Premeditation and planning.⁸ A significant degree of premeditation and planning is inherent in the sale and supply of controlled drugs.

⁵ Misuse of Drugs Act 1975, s 6(4)(a).

⁶ R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).

⁷ At [34].

⁸ Sentencing Act 2002, s 9(i).

(b) Quantity and value of methamphetamine.⁹ The amended charges are for supplying 42 grams of methamphetamine, and offering to supply 120 grams. The total amount is 162 grams, which sits just on the upper third of band two of R v Fatu.

(c) Commercial gain.¹⁰ You were a principal of part of a larger commercial operation to supply and sell methamphetamine. Commercial gain is a relevant aggravating factor in your circumstances.

[14] I have also taken into account the role you played in the overall operation as this is a relevant factor. Those who are primary offenders can expect starting point sentences towards the higher end of the relevant band with the converse applying to those whose role is less significant.¹¹ The Crown says that you sit somewhere outside of the principal structures involved in this particular operation, but you did play an important role in liaising with other members and sourcing the methamphetamine from Auckland. That is a stance with which I agree.

[15] To ensure consistency in sentencing, I set out in the sentencing indication decision the sentences that have been imposed on the other co-defendants in Operation Fantail. I will not repeat what I said in the pre-sentence decision. Suffice to say that the seriousness of your offending is somewhere close to that of Mr Stretch, although the amount of methamphetamine involved in your case was higher than in Mr Stretch’s case.

[16] Accounting for the role you played, the quantity of methamphetamine involved in your offending and the starting points of your co-offenders,¹² the Crown has properly acknowledged that a starting point of five and a half years’ imprisonment is appropriate. That is the starting point I adopt.

⁹ Sentencing Act 2002, s 8(a) and (b); R v Fatu, above n 6.

¹⁰ R v Fatu, above n 6, at [32].

¹¹ At [31].

¹² R v Murdoch [2015] NZHC 2928; R v Foubister [2015] NZDC 26065; R v Ryan [2016] NZHC 1535; R v Beazley [2016] NZHC 1743; R v McKinley [2016] NZHC 1894; R v Stretch [2016] NZHC 2783 and R v Evans [2016] NZHC 2475.

Adjustments to the starting point

Personal aggravating factors – previous convictions

[17] You have extensive previous convictions, many of which are directly related to drug dealing. These include a lengthy period of imprisonment beginning in 2008 for 26 charges of supplying, offering to supply and conspiracy to supply methamphetamine.¹³ A “significant uplift” is required to vindicate the principle of deterrence, particularly in drug dealing cases where it is the dominant sentencing principle.¹⁴ An uplift of six months is appropriate in these circumstances.

Personal mitigating factors

Time spent on restrictive bail

[18] You have been subject to an evening curfew and travel restrictions since you were released on bail on 6 October 2014. Your compliance with the restrictive bail conditions can provide a basis for a reduction in sentence.¹⁵ A discount of 18 months is appropriate to reflect the terms of your restrictive bail conditions.

Ill-health

[19] Your health condition is poor, and the Crown accepts that a discount is appropriate to reflect this factor. Mr Antunovic seeks a merciful end sentence of home detention. He submits that if you were imprisoned, you would be seriously vulnerable to physical attack, particularly in the region of your skull. Your history of gang association increases this risk.

[20] The NASC report outlines the following details of your condition:

(a) you suffer total paralysis in your left arm, significant weakness in your left leg and blindness in your left field of vision;

(b) you suffer significant pain, particularly on the left side of your body;

¹³ R v Liu HC Wellington CIV-2007-035-2301, 3 November 2008.

¹⁴ R v Arthur [2005] NZLR 739 (CA) at [26].

¹⁵ Keown v R [2010] NZCA 492 at [7].

(c) you have trouble reading and writing because of your impaired vision;

(d) you also suffer post-stroke seizures;

(e) your speech can become slurred when fatigued;

(f) at times, you need support to understand information when that information is complex;

(g) you have increased sensitivity to food textures, temperature and other matters associated with the temperature of food;

(h) you need support to get your legs in and out of bed;

(i) you need support to get dressed, shower and to use the toilet;

(j) you need reminding to take your medication, and have generally very poor concentration;

(k) you use a support brace on your left ankle and an elbow crutch to walk, and can only walk up to 20 metres inside and outside you use a wheelchair; and

(l) you have fallen several times since your stroke, and need assistance to get back up.

[21] Section 8(h) of the Sentencing Act 2002 requires the Court to take into account any particular circumstances of the offender that would render an otherwise appropriate sentence disproportionately severe.

[22] In my sentencing indication decision I set out a range of cases that dealt with discounts for a defendant’s poor health.¹⁶ I again will not repeat what I said in the sentencing indication decision.

¹⁶ See, for instance, R v Verschaffelt [2002] NZCA 244; [2002] 3 NZLR 772 (CA); R v Luce [2007] NZCA 476.

[23] With a few exceptions, the discount available for ill-health alone has ranged from 14 per cent to 33 per cent.¹⁷ In R v Gallagher, a discount of close to 66 per cent was provided but that case involved a starting point of 12 months’ imprisonment, and the defendant suffered very serious disabilities and had a short life expectancy.¹⁸ The discount in R v Lane was closer to 75 per cent, and that was driven primarily because of the severity of the disability suffered by the defendant.¹⁹

[24] Ms Noble, the Principal Health Advisor for the Department of Corrections, advises that given the NASC report, “the optimal outcome for rehabilitation for [your] disability would be in the home/community rather than in prison”. Ms Noble believes that a custodial sentence would be detrimental to your long-term recovery, as the prison healthcare system would not be able to provide the rehabilitative environment required. Ms Noble is of that opinion because the High Dependency Unit at Rimutaka Prison has strict eligibility criteria, she is concerned that you might be declined entry because of your impulsive, volatile and unpredictable behaviour that could create a risk to safety of the staff and other prisoners in the unit.

[25] Considering all of the relevant circumstances, including Ms Noble’s recommendations, I am willing to give you a discount of 22 months, which is a little over 40 per cent to reflect your ill-health and the effects of prison upon you. This reflects the fact that your disability is more serious than in R v Verschaffelt and R v Luce, but less serious than in R v Lane and R v Gallagher.

Guilty plea

[26] In my sentencing indication decision I said you would be entitled to a discount of 20 per cent to reflect your guilty plea. That is the discount which I give you for that factor.

¹⁷ Hastie v R [2011] NZCA 498 at [40].

¹⁸ R v Gallagher (1993) 9 CRNZ 421 (CA).

¹⁹ R v Lane CA184/81, 7 December 1981.

Result

[27] The final result is a sentence of two years’ imprisonment, which means that you are eligible for a sentence of home detention.

Home detention

[28] The home detention report raises issues about the feasibility of a sentence of home detention, particularly because of the issues associated with you wearing a GPS monitored ankle bracelet.

[29] I am advised by senior officers of the Department of Corrections that fitting a GPS ankle bracelet may be achievable in your case. It would have to be on your right ankle. If, however, it does not work in your circumstances, officers have the option of fitting a radio frequency transmitter to your wrist.

[30] In these circumstances, and notwithstanding the reservations of the officer who wrote the home detention report, I am willing to sentence you to a period of home detention.

[31] Sentences of home detention need to reflect the seriousness and gravity of a defendant’s offending. In your case, your offending is particularly serious and merits the imposition of the maximum term of home detention that can be imposed.

[32] You are accordingly sentenced to 12 months’ home detention on each of the charges to which you have pleaded guilty.

[33] You are to serve that sentence at the home detention address set out in the report. The conditions to that sentence are as follows:

(1) You are permitted every day to go to the Masterton Hospital for up to two hours each day, between the hours of 9.00 am and 6.00 pm.

(2) You are also permitted to leave the home detention address to attend to any medical and or physiotherapy appointments at either Masterton or Wellington Hospital.
(3) You are to attend any rehabilitative courses or programmes approved by a probation officer.

These conditions will be set out in writing and made available to you before you leave Court.

[34] Your sentence of home detention will commence at mid-day tomorrow, 1 May 2018.

D B Collins J

Solicitors:

Crown Solicitor, Wellington

I M Antunovic, Porirua for Defendant