Bi v R

[2014] NZCA 10

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 551/2013
[2014] NZCA 10

BETWEEN	DESHENG BI Appellant
AND	THE QUEEN Respondent

Hearing:	11 February 2014
Court:	Harrison, Asher and Dobson JJ
Counsel:	P J Kaye for Appellant G H Vear for Respondent
Judgment:	19 February 2014 at 4.00 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

1. Desheng Bi was found guilty on charges of importing and possessing for supply the Class C drug pseudoephedrine following his trial before Judge Recordon and a jury in the District Court at Auckland.  He was convicted and sentenced to nine and a half years imprisonment. [1]

   [1]R v Bi DC Auckland CRI-2011-004-8030, 7 August 2013.

2. Mr Bi appeals against his sentence on the ground that it is manifestly excessive.  In particular he says that (a) there was a gross disparity between his sentence and that imposed on his co-offender; and (b) the sentence offends the totality principle.

Facts

1. In February 2011 Mr Bi travelled from New Zealand to Hong Kong to arrange a shipment of furniture from China to New Zealand.  Included within the shipment were eight bean-bags within which 30 grey packages were secreted containing a total of approximately 67 kilograms of Contac NT granules.  Customs officers intercepted the shipment in Auckland in April 2011 and arranged for a controlled delivery.

2. Mr Bi had organised the shipment through a customs broker by using a false identity and false customs client code.  Following advice from the broker that the shipment was released for delivery, Mr Bi directed his co-accused, Qin Guo, to hire a storage unit in Auckland.  Acting on Mr Bi’s instructions, Mr Guo later removed two bean-bags from the storage unit while Mr Bi drove around the facility to check whether the pair were under surveillance.  Messrs Bi and Guo then drove around parts of Auckland in separate vehicles before the two bean-bags were transferred to Mr Bi’s custody.  He took them to a hotel room in Newmarket.  The next day the police arrested Messrs Bi and Guo.

3. Mr Bi alone was charged with importing pseudoephedrine; Messrs Bi and Guo were charged jointly with possessing the chemical for supply.  Each charge carried a maximum sentence of eight years imprisonment.  Mr Guo pleaded guilty before trial.  He was convicted and sentenced by Judge Dawson to three years and nine months imprisonment.[2]   Judge Recordon was aware from expert evidence given at Mr Bi’s trial that 67 kilograms of Contac NT contained just over 27 kilograms of pseudoephedrine.  This quantity was sufficient to manufacture between 13.5 and 19.1 kilograms of methamphetamine with a street value of between $13 million and $19 million. 

Sentence

[2]R v Guo  DC Auckland CRI-2011-004-8030, 23 April 2013.

1. Judge Recordon adopted a total starting point for Mr Bi’s overall offending of 11 years imprisonment.  He did not break down or apportion this total between the two offences.  His comments suggest, however, that he applied a starting point of eight years for the importing charge with an additional three years allocated to the possession for supply charge.  He allowed Mr Bi a credit of 18 months imprisonment for previous good character.  He imposed an end sentence of nine and a half years imprisonment.  He declined to impose a minimum period of imprisonment, apparently on the assumption that Mr Bi would be deported upon completion of his sentence.  While the Crown does not appeal this component of the sentence, the prospect of deportation is not a proper ground for refusing to impose a minimum sentence which would otherwise have been justified by the magnitude of Mr Bi’s offending.

Appeal

1. First, Mr Kaye submits that Mr Bi’s sentence of nine and a half years imprisonment represents a gross disparity with the sentence imposed on Mr Guo.  While accepting that Mr Bi played the greater role, Mr Kaye says that the six year disparity in the starting points which were adopted was unjustifiable.

2. We reject Mr Kaye’s submission.  The apportionment of relative culpability is an essentially factual exercise.  Mr Guo was sentenced before Mr Bi.  Judge Recordon was fully familiar with Judge Dawson’s reasoning and the result.   Having presided at the trial, he was satisfied that Mr Bi was in charge and that he used Mr Guo as his foot soldier.  He also recognised that Mr Guo faced only a charge of possessing the pseudoephedrine for supply, reflecting his participation at the later or secondary stage of the enterprise.  With the benefit of full knowledge of the facts, Judge Recordon was in the best position to adopt a starting point for Mr Bi which properly apportioned relative culpability between the two men.  There was no material disparity.

3. Second, Mr Kaye submits that Mr Bi’s sentence offends the totality principle.  He says that the Judge erred by sentencing on a cumulative basis for closely connected charges of importing and possession for supply.  He does not challenge the Judge’s adoption of an eight year starting point for the importing charge.  But he says that the totality principle has been incorrectly applied to exceed the maximum available sentence for a single transaction, and that a division between the two charges is artificial as they were closely connected.

4. We reject this submission.  The Judge was conscious that there were two distinct elements of this operation.  One was to arrange the importation into New Zealand; the other was to arrange for its receipt and distribution here.  While the two stages are connected, they are also discrete in terms of time, place and circumstances.  Also, as Ms Vear submits, the Judge was entitled to impose cumulative sentences where he was satisfied that the maximum penalty on one charge was insufficient to reflect the overall culpability of the offending.  In this case, limitation of the sentence to the importing charge alone, ignoring what occurred subsequently, would have been an inadequate response to the overall offending.  In our judgment the total sentence was not disproportionate to the gravity of the offending.

Result

1. The sentence of nine and a half years imprisonment cannot be said to be manifestly excessive.  Indeed, Mr Bi may count himself fortunate that the Judge gave him any credit against the starting point for his previous good character.   The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent