R v Jiang

[2016] NZHC 1091

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000114 [2016] NZHC 1091

THE QUEEN

v

HAO JIANG

Appearances:

S L McColgan for Crown

G J Newell for Prisoner

Judgment:

24 May 2016

SENTENCING NOTES OF COURTNEY J

R v JIANG [2016] NZHC 1091 [24 May 2016]

[1]      Hao Jiang, you appear for sentence today having pleaded guilty to one charge of supplying pseudoephedrine and one of possessing pseudoephedrine for supply. The maximum penalty for each is 14 years’ imprisonment.

[2]      Your offending was discovered as a result of a wider police investigation targeting the importation and supply of methamphetamine and pseudoephedrine in Auckland.  The summary of facts to which you pleaded guilty show that you were involved in the distribution of 7.5 kilograms of ContacNT.  That would have been used to produce between 1.5 and 2.25 kilograms of methamphetamine which would have a commercial value at over $250,000 though, of course, the profit to you would have been very much less.

[3]      The objective of sentencing in cases involving the possession and supply of controlled drugs is primarily deterrence and denunciation.  I am required to take into account the principles set out in the Sentencing Act 2002 which include the gravity of the offending, the degree of your culpability and the seriousness of the type of offence as indicated by the maximum penalty.

[4]      The first step in sentencing is to find an appropriate starting point.  There is assistance for sentencing judges in previous Court of Appeal decisions.1     On the basis of these cases this offending is to be regarded as commercial dealing on a substantial scale that attracts a starting point between five and eight years’ imprisonment and it is clear that this is the category your offending would fall into. In identifying the appropriate starting point within that range I need to consider the level of your culpability.  This depends significantly on the nature of your role in the wider organisation.

[5]      The organisation, and you as part of it, employed sophisticated methods, including anti-investigative methods such as coded communication, meetings at pre- determined coded locations and the use of numerous phones and SIM cards, all designed to thwart law enforcement investigation.  A number of others involved in the operation have already been sentenced for their part.   One of them is Mr Li, whom the Crown says worked at a similar level to you in the organisation, both

acting as wholesalers between the principal offender, Mr Tran, and end users.  Your lawyer has challenged this view.  He argues that Mr Li had greater knowledge of the supply chain and was clearly more deeply involved in drug distribution given his convictions for methamphetamine as well as the same kind of dealing as you were involved in.  Mr Newell suggests that you are more akin to a street level distributor and the conduit between Mr Tran and Mr Li.

[6]      From the summary of facts on which you pleaded guilty that there is only a very small difference between your and Mr Li’s involvement.  You did seem to work together and there were occasions on which you dealt directly with Mr Tran.  But I do accept Mr Newell’s submission that you were not quite at the same level as Mr Li.  I am unable to draw any assistance from the sentence imposed on Mr Li because he was sentenced on the basis of methamphetamine and pseudoephedrine and the sentence very much reflected the methamphetamine offending.

[7]      I have looked at the offending of others in this organisation.  Some were less serious than you, for example, Ms Zheng was sentenced in respect of a total of 3.6 kilograms of pseudoephedrine but her culpability was significantly less.   Gilbert J took the view that she had been manipulated and had not received payment and he

took a starting point of three years six months’ imprisonment.2

[8]      Mr Ha was sentenced on the basis of supplying at least three kilograms of ContacNT on the basis that he stored the drug at his house and supplied quantities of it on Mr Tran’s instructions.   The starting point in that case was four years’ imprisonment.

[9]      Others were more serious than your offending.  Ms Li was sentenced on the basis of 24.65 kilograms of ContacNT and had acted as the middle-person in relation to more than a dozen transactions. The starting point in that case was seven years six months.

[10]     By  reference  to  the  nature  of  your  involvement  and  the  other  available sentences for co-offenders I consider that a starting point of five years’ imprisonment

would be appropriate.  From that starting point there are mitigating factors to take into account.   Personal factors are generally of limited relevance in drug dealing cases.  But there are matters that I am able to acknowledge.  You are entitled to a discount for your guilty plea.  You have no previous convictions and I accept that you are remorseful and have sought to show that in a tangible way. You were also on bail for some of the time with restricted conditions.   Taking all of these relevant factors into account I allow an overall discount of 60 per cent, bringing the end sentence to two years.

[11]     Mr Newell has contended for home detention on your behalf.   You are 32 years old.  Well qualified, with a Bachelors Degree in Information Technology.  You have lived in New Zealand for many years.  You speak good English.  You should not have found yourself in this position and I am told that you found yourself in this position  through  gambling,  becoming  addicted  to  gambling,  incurring  gambling debts and I suspect a good deal of that, judging from the pre-sentence report, was a feeling of social isolation and the casino was a good place to hang out with other Chinese-speaking people and you felt more at home.   Well, that is a great pity because you could do a lot better in this country.   I am going to grant you home detention.  In your case it is quite a privilege and I hope that in the future you will make up for the bad choices that have brought you to this place today.  So you will be sentenced to 12 months’ home detention, to be served at the address identified in the pre-sentence report and on the conditions that are set out in the pre-sentence report.

[12]     Mr Jiang, Mr McColgan has advised that the Crown is offering no evidence on the remaining charges against you and I discharge you on those.   The specific charges will be recorded in a schedule that Mr McColgan will file later today so you will know which ones were the subject of the discharge.

[13]     Thank you, you can stand down.

P Courtney J