Police v Li

[2013] NZHC 1377

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2012-054-3190 [2013] NZHC 1377

NEW ZEALAND POLICE

v

JIREN LI

Hearing:                   11 June 2013

Counsel:                  Mr P Murray for Crown

Mr S Winter for Li

Sentence:                 11 June 2013

SENTENCING REMARKS OF MALLON J

Introduction

[1]      Mr Li you appear for sentencing today having pleaded guilty to the following charges:

(a)       three charges of sale of a temporary Class C controlled drug, namely

JWH-018 (commonly known as “Kronic”);1

(b)one charge of possession of JWH-018 or Kronic for the purpose of sale;2 and

(c)       one charge of unlawful possession of a pistol.3

1      Misuse of Drugs Act 1975, s 6(1)(e).

2      Misuse of Drugs Act 1975, s 6(1)(f), with a maximum penalty of eight years’ imprisonment.

3      Arms Act 1983, s 50(1)(a), with a maximum penalty of three years’ imprisonment and/or a fine

not exceeding $4,000.

NEW ZEALAND POLICE v LI [2013] NZHC 1377 [11 June 2013]

[2]      There was an error in the informations in relation to the charges of sale in that the wrong section was referred to and I note that, by consent, this is corrected by me.4    The Crown is not proceeding with a further charge in relation to the sale of AKB-48 (also known as K2) because it has not been able to be confirmed that the product contained AKB-48. You are therefore discharged on that count.

[3]      You appear for sentencing in this Court because the District Court declined jurisdiction.  That was on the basis of the summary of facts as it was then prepared. It has since been amended.

Circumstances of the offending

[4]      Your offending relates to the sale of synthetic cannabis substances that you stocked at your store, Ace Discount Tobacconist.  Kronic is a brand-name for a type of synthetic cannabis.   It contains JWH-018.   From 16 August 2011 it has been a Class C controlled drug under the Temporary Class Drug Notices.5   The Palmerston North police were alerted to your activities by concerned members of the public.

[5]      Between June and October 2012, police carried out an investigation into your store.  This involved three occasions in that period that a special duties police officer asked you for Kronic.  On each occasion you reached under the counter for a small clear plastic bag which contained between 2.5 and 2.8 grams of dried plant material for $40.   These sales took place on 21 June 2012, 24 July 2012 and 7 September

2012.   Subsequent ESR testing of the material that was sold to the special duties officers found that it contained JWH-018.

[6]      The police subsequently executed search warrants at your store and home on

18 October 2012.  At your store, the police discovered 4,861 packets of synthetic cannabis, including 491 packets of Kronic.  The packets of Kronic have a total retail value of $19,640.  However the packets of Kronic were not tested by the ESR and it

is therefore not known whether they contained JWH-018.

4      The informations refer to s 6(1)(f) of the Misuse of Drugs Act 1975.   They are amended to s (6)(1)(e) of that Act.

5      Misuse of Drugs Act 1975, s 4C.

[7]      The police also located a handwritten note under the till which recorded cash amounts of predominantly $20 and $40 and totals for each period.  The totals, when added together, corresponded to a similar amount of cash located in a cabinet at the shop.

[8]      In the same cabinet the police located a 400mm sawn off .22 firearm along with  a  box  of  .22  ammunition.    The  bolt  to  the  firearm  was  closed  and  no ammunition was inside.  The firearm was wrapped in a towel.  Because the firearm had been shortened, it is classed as a pistol.  You hold a standard class A firearms licence which does not permit you to possess a pistol.

[9]      At your home the police located a further 3,430 packets of Kronic.  If sold for

$40 each, the packets of Kronic would have a total value of $137,200.  The police also found a large number of packets of other synthetic cannabis.  However none of the material found at your home was tested and it is therefore not known whether it contained the banned JWH-018, or any other banned substance for that matter.

[10]     It is therefore agreed by counsel that you are to be sentenced on the basis that at the time of each of the three sales that I have referred to you did possess the banned substance JWH-018 but it is not known how much you had at the time of those sales.

[11]     When you were spoken to by the police, you said that because your supplier sold the products to you, you believed they were still legal.   In relation to the firearm, you said that you had shortened the firearm so that it would fit in the cabinet.   The cash in the cabinet was not seized by the police.   You have other legitimate business at the store and your practice, as is said to be reflected in bank statements, is to gather significant amounts of cash together before banking it to avoid cash handling fees.  You are therefore not going to be sentenced on the basis that that cash was from illegitimate business.

Circumstances of the offender

[12]     Turning to your personal circumstances, you are 48 years old.  You became a

New Zealand citizen in 1996.  You live with your wife, 11 year old daughter and

your nephew in a house that you own.  You are the sole proprietor of Ace Discount Tobacconists, a business you have had for over three years.  You have no previous convictions.

[13]     You accept responsibility for your offending.   When the temporary notices were issued you found yourself with excess stock.  You initially intended to “write off” or claim the stock loss against your taxes.  Your accountant confirms that this had been discussed with you.  However, the sales indicate that you decided to get rid of some of your excess stock by way of sales.  In relation to the firearm you told the pre-sentence report writer that you had originally purchased it for hunting and were not aware of the illegality arising from it having been modified.

[14]     According to the report writer, you are remorseful.  You are assessed as at a low  risk  of  reoffending.    Your  willingness  to  comply  with  community-based sanctions is assessed as high.  Friends and associates have written in support of you and I have read the positive things they say about you.

Starting point

[15]     I turn to the appropriate starting point.   I am first going to adopt a starting point that reflects the totality of your offending in relation to the possession and sale of Kronic.   I am then going to uplift that starting point to reflect the unlawful possession charge.

[16]     As far as  I am aware,  this is the first sentence imposed for the sale of synthetic cannabis which is the subject of Temporary Class Drug Notices.   The guideline judgment for cannabis offending is R v Terewi.6     Terewi has also been applied in sentencings for other Class C controlled drugs and therefore provides

some guidance in this case.7

6      R v Terewi [1999] 3 NZLR 62 (CA); R v Gray [2008] NZCA 224 at [7].

7      R v Vigneau HC Wellington CRI-2011-085-4047, 7 December 2011 at [14]; R v Urlich HC Palmerston North CRI-2010-054-1694, 13 December 2010 at [26]-[31]; R v Holden HC Timaru CRI-2010-076-463, 4 November 2010 at [7]; R v Kamizona [2012] NZHC 2868; R v Jethwa [2012] NZHC 2440 at [16].

[17]     The Crown originally submitted that your offending fell in the upper category two or lower category three, with a starting point of three and a half to four years imprisonment and then an uplift of six months for the firearm charge.  However that was on the basis of a different summary of facts, and that was the basis on which the District Court had declined jurisdiction.  As I have already discussed, the possession of synthetic cannabis that you had has mostly not been tested and therefore you are

not being sentenced on the basis that it did contain a controlled drug.8   In light of that

the Crown has revised its submission to a starting point of somewhere in the lower to mid range of R v Terewi.

[18]     Counsel on your behalf submits that a starting point at the lower end of category two in Terewi is appropriate.

[19]     On  the  face  of  it,  it  could  be  said  that  you  were  running  a  large-scale commercial operation selling the equivalent of class C drugs.   But there are other relevant factors in this case.  Significantly, most of the material that you possessed has not been tested and it may well be that it did not contain a controlled drug and you  certainly  cannot  be  sentenced  on  the  basis  that  it  did.    There  is  also  the possibility that the Kronic that you did sell was acquired by you when it was still legal and therefore it is not the position where you were deliberately acquiring illegal substances for the purposes of making a profit.   However, the sales do show, and your guilty pleas to the charges show, that you did offload some of the illegal stock that you had for the purposes of making some money.

[20]     On this basis there is an element of commerciality but the offending is, I agree, at the low end of R v Terewi, with an uplift for the possession of the firearm. In relation to that I note that you did hold a firearms licence, albeit it did not cover this modified firearm.  And I also note that it was kept in a locked cabinet and was

not loaded, which does distinguish it from other drug offending where other firearms

8      Category two encompasses small-scale offending with a commercial purpose and generally warrants a starting point of between two and four years’ imprisonment (R v Terewi, above n 6, at [4]). Category three encompasses large-scale commercial operations that involve a considerable degree of sophistication and organisation. That category generally warrants a starting point of four years or more (R v Terewi, above n 6, at [4]).

are located.  I therefore consider that an overall starting point of around two years six

months’ imprisonment is appropriate.

Aggravating and mitigating factors

[21]     Turning to personal factors, there are no personal aggravating factors but there are some mitigating ones.   There is the fact that you have no previous convictions, and also your early guilty plea for which you should have a full 25 per cent discount.

Home detention

[22]     Taking into account those discounts, that would put an end imprisonment sentence at an area where a sentence of home detention can be  considered.   A sentence of home detention is not opposed on behalf of the Crown.  It is technically feasible.  There are no issues anticipated with compliance.  You are a first offender and your reoffending risk is assessed as low.  For all those reasons I consider that a sentence of home detention is appropriate and the appropriate term will be one of ten months.    That  will  apply  to  the  possession  for  sale  charge,  10  months’ home detention concurrent sentences will be imposed on the three sale charges and  a concurrent sentence of home detention of two months will apply to the firearms charge.

Sentence

[23]     There  is  an  application  for  forfeiture  and  destruction  of  all  exhibits  and products paraphernalia seized, and including the pistol and ammunition.  Mr Winter is that opposed? [Mr Winter discussed the matter with Mr Li and the Crown and indicated that there was no opposition to the forfeiture and destruction of all the Kronic labelled product and the firearm and ammunition.]  Forfeiture and destruction

of all the Kronic labelled product and the firearm and ammunition is ordered.9

Mallon J

9      Misuse of Drugs Act 1975, s 32; Arms Act 1983, s 69(1).