R v Gui HC Auckland CRI-2011-404-000267

[2011] NZHC 1906

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000267

THE QUEEN

v

WANZHE GUI

Appearances: B R Northwood for Crown

R M Mansfield for Prisoner

Judgment:      22 November 2011 at 9:00 AM

SENTENCING NOTES OF COURTNEY J

Solicitors:           Meredith Connell, P O Box 2213, Auckland 1140

Fax: [phone] – B Northwood

Counsel:             R M Mansfield, P O Box 2674, Auckland 1140

Fax: [phone] – Email: [email protected]

R V GUI HC AK CRI-2011-404-000267 22 November 2011

[1]      Wanzhe Gui, you appear for sentence today having pleaded guilty to one charge of importing the Class C controlled drug pseudoephedrine, which carries a maximum penalty of eight years imprisonment.

[2]      As a result of information obtained during another investigation the police became suspicious that serving prisoners were involved in the importation of precursor substances or drugs from China.   Evidence gathered through the use of interception tapes confirmed their suspicions.  You were one of the prisoners found to have been involved in the operation; at the time you committed this offence you were serving a sentence of 13 years imprisonment for kidnapping and aggravated robbery.

[3]      The intercepted conversations showed  your role to be the recruitment  of people prepared to take delivery of the pseudoephedrine and arrange onward supply. You  also  formulated methods  of concealing the  precursor substances  from  both Chinese and New Zealand officials.   During the course of the operation Customs officers seized 14 kilograms of pseudoephedrine attributable to you and the others involved in this operation. Although other amounts undoubtedly made their way into New Zealand past Customs it is this figure that I use as the basis for sentencing today.

[4]      The importation of the precursor substance pseudoephedrine from China for the use in manufacturing methamphetamine in New Zealand has inevitably led to large  quantities  of  methamphetamine  being  made  available  here.    This  Court routinely decries the harm that this drug does in our community.  Almost invariably those responsible for importing the precursor substances, such as yourself, do so solely for financial gain as part of commercial operations.  As a result, the primary objective in sentencing in cases like this is denunciation of this kind of offending and deterrence to  both  the offender and  others  who  might  be contemplating similar efforts.

[5]      In fixing an appropriate sentence I need to find a starting point which reflects the nature of this offending.    It was  clearly a substantial  commercial  operation involving serving prisoners directing  and  advising and  offenders on  the outside

actually arranging the importations.   The Crown characterises your offending as being a mastermind or instigator rather than a crucial player at a slightly lower level.[1]   Your lawyer argues that you should be treated more as a crucial or important player than an instigator of the offending.  But on the information contained in the summary of facts, it seems clear that  you  instructed, organised and  advised.    I conclude that you were an instigator of the offending.  Your lawyer had argued for a starting point between five and six years and the Crown for a starting point between seven and eight years.   Given my conclusion as to your role in the offending and taking into account other cases involving similar amounts of pseudoephedrine,[2]  I consider that a starting point of six-and-a-half years is appropriate.

[1] See R v Ho HC Auckland CRI-2005-092-000567, 12 April 2005.

[2] R v Qiu CA202/06, 17 October 2006; R v Wu HC Auckland CRI-2005-092-006711, 27 September

2005; R v Jian Zhong Xie [2008] NZCA 111, 23 April 2008; R v Ye HC Auckland CRI-2006-404-175,

18 July 2006

[6]      That starting point must be increased, however, to reflect the very serious fact that you were serving a lengthy sentence for other serious offences when you committed this offence.   I take an increase of one year, which brings the sentence before deductions for your guilty plea to seven-and-a-half yers.

[7]      Your lawyer has submitted that I should make a reduction to reflect the fact that you are a foreign national and, therefore, isolated from family and friends during the period of your sentence.   There is no basis for doing so.   By the time you commenced this offending you already knew very well what being in prison in a foreign country was like.  Clearly you were not deterred.  Allowing a reduction on this ground would send entirely the wrong message to those who are already serving sentences and might be tempted to become involved in similar offending.  I am also invited to make a reduction to reflect your remorse.  There is, however, no basis on which I might conclude that you are remorseful apart from the usual feeling of regret that offenders feel at having been caught.

[8]      You are, however, entitled to a substantial discount for  your guilty plea. Although this plea was entered late and in the normal course would not attract a substantial  discount,  the  Crown   acknowledges  that   you  had   indicated   your

willingness to plead guilty to this offence at an early stage.   It was the Crown’s

.

decision to proceed to trial on more serious charges that led to the delay in the plea being entered.  A discount of 25%, which is the maximum that I could allow, would bring the sentence down to five years and eight months.  That, however, will not be the final sentence.  Because of the difference in the nature of this offending from the offences for which you were already serving your sentence, I intend to impose a cumulative  charge,  one  that  is  served  on  top  of  or  in  addition  to  the  existing sentence.  But a sentence of five years and eight months served cumulatively, as the Crown  acknowledges,  would  be  out  of  proportion  to  the  gravity of  the  overall

offending.3   Your lawyer and the Crown’s lawyer have both submitted to me that a

cumulative sentence of two years imprisonment would properly reflect the totality of the offending.  I accept that submission.  Had the Crown not contended for two years I would have been minded to impose a higher sentence.   In the circumstances I accept the submission that both counsel have made and impose a final sentence of two years imprisonment to be served cumulatively with the sentences that you are

currently serving.  Stand down.

P Courtney J

3 S 85(2) Sentencing Act 2002.