R v Jiang
[2016] NZHC 2256
•23 September 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-004-8179 [2016] NZHC 2256
THE QUEEN
v
JIAWEN JIANG
Hearing: 22 and 23 September 2016 Appearances:
B R Northwood for Crown
G Morison for DefendantSentence:
23 September 2016
SENTENCING REMARKS OF LANG J
R v JIANG [2016] NZHC 2256 [23 September 2016]
[1] Mr Jiang, you appear for sentence today having pleaded guilty to 31 charges of supplying methamphetamine. In respect of three of those charges you were assisting or arranging for another person to supply methamphetamine. The maximum sentence for those charges is life imprisonment. You have also pleaded guilty to two charges of conspiring to supply methamphetamine. The maximum sentence in respect of those charges is 14 years imprisonment.
The facts
[2] Your offending was discovered as a result of a large-scale police operation. You were the initial target of that operation because the police believed that you were involved in selling methamphetamine. On 13 April 2015, this Court granted a warrant authorising the police to intercept your communications. Within two months they had extended their interception operation to include several other people because of information they discovered from your communications.
[3] Between 12 June and 11 August 2015, the police intercepted communications confirming that you were involved in at least 31 supplies of methamphetamine. You were subject to a grant of EM bail at that stage because of other drug-related offending for which you were arrested on 10 March 2015. Because you could not leave your home, you engaged a number of drivers to deliver methamphetamine and/or cash to purchasers. In particular, you sold drugs on a wholesale basis to Mr David Vernon, who then distributed them to others using a system of drivers. Mr Vernon’s activities were also restricted at that time because he was on EM bail as well.
[4] The police have discovered that in 14 transactions, you supplied no less than
623 grams of methamphetamine. They have been unable to calculate how much additional methamphetamine you supplied in the remaining 17 transactions. You obviously get the benefit of the doubt in respect of those transactions because the Court cannot fix a quantity of methamphetamine in respect of which to sentence you. Nevertheless, those transactions demonstrate that you were dealing methamphetamine on a very large scale.
Approach
[5] Your sentencing is complicated by the fact that you are currently serving a sentence of four years six months imprisonment on other drug-related charges to which I shall refer shortly. I need to impose a sentence that takes into account the fact that you are already serving that sentence of four years six months imprisonment. I propose to do this by first fixing the sentence that would have been imposed in this case, but for the fact that you are already in prison on other charges. I will then notionally recalculate the sentence that I would have imposed if I had been sentencing you on all of the charges, including those for which you are already serving a term of imprisonment. I will then impose a sentence in respect of the present charges to be served cumulatively on the sentence you are already serving. This means I will need to reduce the sentences I would otherwise have imposed to reflect the fact that you are already serving a sentence of imprisonment.
Starting point
[6] The starting point to be adopted in relation to your offending is governed by a judgment of the New Zealand Court of Appeal in R v Fatu.1 In that case the Court of Appeal identified bands of offending for those involved in the importation, manufacture and supply of methamphetamine. The most serious band is known as Band 4, and relates to very large commercial quantities of methamphetamine. In cases involving the supply of 500 grams or more of methamphetamine, a starting
point between ten years and life imprisonment is selected.
[7] Every aspect of your offending qualifies you for inclusion within Band 4. First, you supplied a quantity of methamphetamine significantly in excess of 500 grams. Secondly, you were at the wholesale end of the distribution chain and therefore were one of the prime movers of methamphetamine within your distribution network.
[8] The most useful comparative sentence I have been able to find is that imposed on Mr Vernon.2 His offending falls roughly at the same level of yours in
1 R v Fatu [2006] 2 NZLR 72 (CA).
2 R v Vernon [2016] NZHC 1110.
terms of activity because he distributed his methamphetamine in much the same way as you distributed yours. The Crown was able to prove, however, that Mr Vernon had supplied a total of at least 1.35 kilograms of methamphetamine. On that basis the Judge who sentenced Mr Vernon selected a starting point of 16 years imprisonment. The starting point in your case must obviously be less than that, because the Crown cannot establish more than 623 grams of methamphetamine. I take a starting point of 12 years imprisonment as reflecting your overall culpability in respect of all charges.
Aggravating factors
[9] I now need to consider the extent to which that starting point should be increased to reflect the fact that you were offending whilst subject to a grant of EM bail. As I have already observed, this was granted after you were arrested on
10 March 2015. At about midnight on that date, the police stopped your motor vehicle and took you to the police station. When they searched your shoulder-bag, they found 136.4 grams of methamphetamine packed into five bags. The police also found $4,325 in cash, together with scales suitable for weighing methamphetamine. They also found a glass methamphetamine pipe that had methamphetamine stains on it, together with an air pistol loaded with pellets. Subsequent testing showed that the methamphetamine had a purity of 79 per cent. This meant that you were carrying approximately 107.7 grams of pure methamphetamine.
[10] You were also driving whilst disqualified, and this was the third time on which you had offended in that particular way. You were granted EM bail on the basis that you would keep away from drugs and cellphones. You blatantly ignored those bail conditions and continued to offend in the most serious way possible. You are a prime example of the fact that EM bail cannot stop a determined drug dealer from continuing to offend.
[11] The fact that you were prepared to resume your drug dealing activities immediately after being released on EM bail is a significantly aggravating factor. It warrants an uplift of 12 months to the starting point of 12 years imprisonment.
Mitigating factors
[12] I am now required to consider the mitigating factors that would operate to reduce your sentence.
[13] The first of these is your guilty pleas. I would reduce your sentence by
20 per cent to reflect that factor. Although your pleas come shortly before the trial, I accept your counsel’s submissions that negotiations have resulted in some charges being withdrawn and the summary of facts being amended in relation to the quantity of drugs that you supplied. For that reason I make an allowance greater than would otherwise be the case at this late stage, and reduce the starting point by two years seven months to reflect your guilty pleas.
[14] It follows that the end sentence that I would ordinarily impose on you is one of ten years four months imprisonment.
[15] All of that is somewhat academic, because I need to sentence you on the basis that you are already serving a sentence of four years six months imprisonment.
Notional re-sentencing
[16] I now need to notionally re-calculate the sentence on the basis of all charges including your offending on 10 March 2015. This means I would need to take into account that you had a further 136.4 grams of 79 per cent pure methamphetamine in your possession on that date as well as other items commonly associated with dealing in methamphetamine. This means that your culpability needs to be assessed on the basis that you supplied, or were in possession of, around 650 grams of methamphetamine rather than 623 grams.
[17] Had I been sentencing you on all charges, I would have selected an overall starting point of 14 years imprisonment. I would have reduced that by two years ten months, or 20 per cent, to reflect your guilty pleas. That is the same percentage applied by the Judge in the District Court. He applied a discount of 20 per cent to a starting point of six years imprisonment. He then deducted three months to reflect the fact that you had spent some time on electronically monitored bail and that you
do not speak English very well. This will make a sentence of imprisonment more difficult for you. This produced the end sentence of four years six months imprisonment in respect of your earlier offending.
[18] I need to impose a cumulative sentence that reflects the overall sentence of
11 years two months imprisonment that I consider to be appropriate. Ordinarily, this would require me to impose a cumulative sentence of six years eight months imprisonment on the existing sentence of four years six months imprisonment.
[19] Before taking that step, I propose to take into account one further factor relied on in both the District Court and pressed again by your counsel today. This flows from the fact that, although you have spent approximately 11 years in New Zealand, you still speak very limited English. As a result, you will without doubt feel isolated in prison. Your counsel tells me that this is already the case, and that you have placed yourself voluntarily on segregation because you do not feel comfortable being with other inmates. This means that you will obviously find it more difficult to serve the sentence I am about to impose.
[20] Your counsel urges me to take other matters into consideration. He advises me that your former partner with whom you fathered a seven year old boy has now returned to China. Your son is being cared for by your parents. He was born in New Zealand, and will therefore be entitled to remain in New Zealand notwithstanding the fact that you will be deported at the end of your sentence. Your parents came to New Zealand in 2014 under your sponsorship. There is a risk that they will be required to leave New Zealand because you are unable to complete your sponsorship obligations in respect of them. This may place your son in the very difficult position of being forced to choose between remaining in New Zealand with no relatives or returning to China and abandoning his New Zealand lifestyle.
[21] I acknowledge all of those difficulties, but they affect other people rather than you. You alone must bear responsibility for the difficulties you have caused your wider family.
[22] Your counsel also advises me that you are a methamphetamine addict, and that this led to you becoming involved in the sale of methamphetamine. Methamphetamine addicts commonly become involved in selling the drug to support their own habit and their general lifestyle. There is some support for your claim that you are an addict, because a methamphetamine pipe was found in your vehicle on
10 March 2015. Surprisingly, however, you told the person who prepared the probation report in March 2016 that you do not use drugs of any type. For that reason the Court does not identify any rehabilitative issues in your case.
[23] I record for completeness that you have waived obtaining an updated pre- sentence report because you have been in custody since the last report was prepared and your circumstances have not changed. You have elected to be sentenced today immediately after entering your pleas and on the basis of the pre-sentence report prepared for the District Court. I am not prepared to make any allowance for the fact that you may be an addict because the short point is that you were involved in commercial drug dealing at a very high level.
[24] The only issue in respect of which I am prepared to give you further credit is the fact that you will find it difficult to serve your sentence in New Zealand because of language and cultural issues. I am prepared to reduce the end sentence by six months to reflect that factor. This means that I will be imposing an effective end sentence of six years two months imprisonment cumulative on the sentences you are already serving.
Minimum term of imprisonment
[25] In any case where the Court sentences an offender to a sentence of two years imprisonment or more it may impose a minimum term of imprisonment. This specifies the minimum term the offender must serve before being eligible to apply for parole. The Court may impose a minimum term of imprisonment where that is necessary because the usual parole provisions would not be sufficient to satisfy sentencing principles of deterrence, denunciation, the need to hold the offender accountable and the need to protect the community.
[26] In your case, you would be eligible for parole after serving just over two years of the additional sentence I am imposing today. I consider that would be manifestly inadequate given the extent to which you were involved in the supply of methamphetamine.
[27] The courts regularly impose minimum terms of imprisonment when sentencing drug dealers towards the top end of the scale. That is because such offending virtually inevitably satisfies the criteria for a minimum term of imprisonment to be imposed. I accept that minimum terms of imprisonment have not been imposed on some of the lower level offenders apprehended as a result of the police investigation into your activities. That is likely to have been because of the particular circumstances relating to their offending and the offenders themselves. In your case I am satisfied that your offending requires a minimum term of imprisonment of 50 per cent to be imposed.
Sentence
[28] Mr Jiang, on each of the charges to which you have pleaded guilty, you are sentenced to six years two months imprisonment. In each case those sentences are to be served cumulatively on the sentences you are currently serving. This means you will be serving an effective term of imprisonment of ten years eight months.
[29] In addition, I make an order that you are required to serve three years one month imprisonment on each charge before being eligible to apply for parole. All of the sentences I am imposing today are to be served concurrently with one another.
[30] I record, finally, that the Crown has offered no evidence on the remaining six charges that you faced. I make an order discharging you on those charges under s 147 of the Criminal Procedure Act 2011.
[31] Stand down.
Lang J
Solicitors:
Crown Solicitor, Auckland
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