R v Ho HC Auckland CRI 2005-092-567

[2005] NZHC 1671

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-092-000567

THE QUEEN

v

YU LEUNG HO

Hearing:         12 April 2005

Appearances: A J Pollett for Crown

A D Couchman for Prisoner Judgment:  12 April 2005

SENTENCE OF WINKELMANN J

Meredith Connell, Auckland A D Couchman, Auckland

R V HO HC AK CRI 2005-092-000567 [12 April 2005]

[1]                 Mr Ho, you have pleaded guilty to and been convicted of two charges under the Misuse of Drugs Act 1975. These are:

1.Possession of a class C drug for supply;

2.importation of a class C drug.

[2]                 Both charges concern the class C drug pseudoephedrine which is a pre-cursor to methamphetamine. The maximum penalties for both charges is eight years imprisonment.

Relevant facts

[3]                 You arrived in New Zealand on 18 January 2005 from Hong Kong. You arrived on a direct flight, with your wife and mother in law. Your luggage was searched and three items of significance were recovered. First, a thermos flask filled with pseudoephedrine granules. The second and third were two large plastic shampoo containers also filled with pseudoephedrine granules. Pseudoephedrine is a key ingredient used in the manufacture of methamphetamine.

[4]                 When questioned, you said that you thought the substances were “cold and flu tablets”. You said that you had been given the product to bring into New Zealand by an associate in Hong Kong. You were advised that you would be met in the Auckland International Airport arrivals area by another male associate and you were to hand the product over to him.

[5]                 The quantity of the drugs was 2.75 litres. Your counsel and counsel for the Crown have suggested calculations as to quantities. The Crown submits that the value of the methamphetamine which could be yielded from the quantity of pseudoephedrine you were bringing in is in the range of $250,000 to $500,000. The Crown  however  acknowledges  that  there  is  very  real  approximation  in  this.   Mr Couchman suggests that a more realistic figure is $300,000 because of

difficulties in extracting methamphetamine from pseudoephedrine. Because of the uncertainty in the information before me as to the value of the methamphetamine yield, I take $300,000 as a conservative figure.

[6]                 I have read the pre-sentence report. I am told that you are a Chinese national, normally resident in Hong Kong. You are a qualified plumber. You have been married for eight years and have 3 young children. Your motivation to change has been assessed as low as you have not taken responsibility for your offending. You say that although you knew the packages contained pseudoephedrine, you did not know that it was regarded as a controlled drug in New Zealand, but rather that it was a large amount of flu medication.

[7]                 Your wife and mother in law who accompanied you here to New Zealand on holiday have since returned to Hong Kong. You will be deported once you have served any sentence that this Court imposes upon you.

Crown submissions

[8]                 The Crown submits that the aggravating features in relation to this charge is the level of premeditation involved and the commercial nature of the offending, whilst acknowledging that there is no evidence of any financial gain that motivated you. The Crown submits that your culpability was high as the purpose of your trip was to pass on the drugs, and that the offending in this case is serious. In these circumstances the Crown submits that a strong deterrent sentence is necessary, and suggests a starting point of 3-5 years. The Crown accepts that your early guilty plea is a factor in mitigation.

Defence submissions

[9]                 Your counsel submits that it is relevant that this was a one off transaction where you were used as a courier to transport class C drugs from one location to another. Mr Couchman submits that whilst there are no aggravating features, a substantial matter in mitigation is your guilty plea at the earliest possible stage and

your remorse. He also submits that it is significant that you assisted Customs in an attempted controlled delivery. Your counsel submits that I should adopt a starting point of three and a half years, but give very substantial discount of up to a year and  a half because of your guilty plea and your co-operation. Your counsel also submits that because of your immigration status you are not entitled to home detention and that this is something I should also take into account by way of mitigation in fixing your sentence.

General principles

[10]             In sentencing you I have had regard to the purposes of sentencing set out in  s7 of the Sentencing Act. In your case denouncement of your conduct and the need to deter others from similar offending are particularly important considerations, as is the need to protect the community from Methamphetamine, a pernicious drug. The social cost to families and to the community consequent upon the use of methamphetamine is terrible. It must be recognised that those who supply the ingredients for the manufacture of this substance enable the trade in it to continue.

[11]             Section 8 of the Sentencing Act sets out the general principles of sentencing that must be considered. I consider that four of the principles apply in your case. They are:

-The Court must take into account the gravity of your offending including your culpability.

-The seriousness of your offending in comparison with other types of offences.

-The general desirability of consistency in appropriate sentencing levels.

-Imposing the least restrictive outcome that is appropriate in the circumstances.

[12]             I refer to the first 3 of those points later. As to the desirability of the least restrictive outcome, s16 of the Sentencing Act effectively creates a presumption against imprisonment. However, the Court is empowered to impose a sentence of imprisonment in order to achieve purposes of sentencing which are relevant in this case, particularly the need to deter and denounce.

[13]             I am satisfied that having regard to the matters in s7 & s8 of the Sentencing Act, that in your case a sentence of imprisonment is appropriate and indeed inevitable. Your counsel appropriately concedes that this is the case.

[14]             The Crown acknowledges that the 2 offences to which you have pleaded guilty arise out of the same incident and that the importation of a class C controlled drug is the more serious. The Crown therefore submits that a concurrent  sentence  for these charges is appropriate. Given that the 2 offences arise out of exactly the same conduct, the fact of 2 charges has little impact upon the appropriate sentencing range

[15]             I accept your counsel’s submissions that there are no aggravating features in this case other than those inherent in the nature of the charges themselves. I also accept that a significant matter in mitigation is your early guilty plea for which you are entitled to a substantial discount, and the co-operation you gave the authorities with the attempted controlled delivery. Although the pre-sentence report makes no mention of remorse, your immediate admissions and attempts to assist the authorities when intercepted do provide some evidence of remorse.

Legislative background

[16]             Pseudoephedrine was reclassified in October 2004 as a class C controlled drug.

[17]             Previously such matters were dealt with under pre-cursor substance offending where the maximum penalty was 5 years (supply) and 7 years (possession)(S12A). Typically these cases involved the frequent purchase of packets of pseudoephedrine based medications at chemist shops in New Zealand. Sentences tended to focus

upon the number of purchase transactions, the amount of tablets and the quantity and value of the methamphetamine that could be manufactured from the tablets.

[18]             Because of increased controls at point of sale designed to prevent “shopping” for such medication in New Zealand, those involved in the manufacture of methamphetamine have recently begun to source supply from overseas. There are therefore only a limited number of cases concerned with importation of pseudoephedrine. Further, in October of last year Parliament reclassified pseudoephedrine as a class C drug, as part of a number of measures to stem the manufacture and supply of methamphetamine. The maximum sentence for importation of pseudoephedrine has thereby been increased to 8 years.

[19]             Both counsel acknowledge that in terms of consistency in sentencing approach, there are no cases which deal with sentencing in respect of importation of pseudoephedrine after the reclassification to class C. Counsel have, however, referred me to a number of decisions which deal with sentencing of an accused convicted in respect of pre-cursor offending.

[20]             While I have considered the many pre-cursor cases referred to me both by counsel for the Crown and by your counsel, most of these are not of great assistance. Perhaps the most helpful decisions are R v Yujimr & Shuzeng and R v Clemas. In the former case a similar amount of pseudoephedrine was imported into New Zealand by the two prisoners, and the Judge found that they had come up with the scheme to import the pseudoephedrine. The Judge arrived at a starting point of 3 years imprisonment and made no allowance for mitigating factors.

[21]             In R v Clemas the street value of the methamphetamine capable of being produced from the pseudoephedrine was approximately $270,000, again a similar figure to that involved in your importation. There was however evidence of  a number of importations over a six month period and of cash payments to the offenders for their role. The Judge arrived at a starting point of 3 years before making a substantial allowance for mitigating factors, for which he gave an  18 month reduction. These factors were guilty pleas, although not as early as yours, and successful co-operation with the authorities.

[22]             In considering these cases it is important to bear in mind that the prisoners were sentenced in respect of offences with a lesser maximum than apply to the offences with which you have been convicted.

[23]             I am also assisted in setting a starting point by the case of R v Wickremasinghe (HC Auckland, T013408, 28 March 2003) where Chambers J described two categories of importation of class A drug offending. Those categories seem to me to have application in the case of class C importation, although of course with necessary modification downward of the starting ranges. Category 1 identified by Chambers J included those in the top level, the instigators, masterminds, prime movers and controllers. A range of 16-18 years was identified for that category of offending for class A. Category 2 includes people who are still crucial players but  are not the instigators, masterminds, prime movers and controllers, although they are people without whom the enterprise could not be brought to fruition. Chambers J suggested a starting point of 12 to 13 years in respect of this category of offending for class A drugs. In respect of a class C importation, I would estimate a starting point of 6-7 years imprisonment for category one offending, and 3-5 years for category two.

[24]             The range thereby arrived at also has some consistency with the two other cases to which I have referred when account is taken of the increased maximum sentence.

[25]             I am satisfied that your offending falls into category two. You were not a mastermind or an instigator. You acted as a courier but nevertheless your role would have been a key role in the enterprise. There were substantial amounts of pseudoephedrine involved. The appropriate sentencing range is 3-5 years.  In view  of the fact that this was a one-off importation, but bearing in mind the substantial amounts of pseudoephedrine involved, in my view a starting point of 3 years 6 months imprisonment is appropriate.

[26]             The overriding principle in sentencing you is the need to denounce your conduct and to deter others. Although it is true that you will be away from home, your wife and your children, in serious drug offending of this nature, your personal

circumstances have little if any relevance. Your early guilty plea is a substantial mitigating factor, as is the fact that you co-operated with Customs in an attempted controlled delivery. I also accept that the full and frank admissions you made on interception at Auckland International Airport are some evidence of remorse.

[27]             Accordingly, I reduce your sentence from a starting point of 3 years six months imprisonment to 2 years 2 months imprisonment. You are therefore sentenced to 2 years 2 months imprisonment on both the importation and possession for supply counts. These are to be served concurrently.

[28]Stand down please.

H D Winkelmann J