R v Lee HC Auckland CRI 2009-004-17942
[2010] NZHC 599
•30 March 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2009-004-17942
QUEEN
v
WAN YUNG LEE
Hearing: 30 March 2010
Appearances: N Malarao for Crown
G Newell for Offender
Judgment: 30 March 2010
SENTENCING NOTES OF ASHER J
Sentence imposed: Importing Class C Controlled Drug, pseudoephedrine
Two years and six months’ imprisonment
Solicitors:
N Malarao, Meredith Connell, Crown Solicitor, PO Box 2213, Auckland
(nick[email protected] )
G Newell, Barrister, Auckland ([email protected] )
R V LEE HC AK CRI-2009-004-17942 30 March 2010
[1] Mr Lee, you appear today for sentence having pleaded guilty to importing a Class C controlled drug, pseudoephedrine. The maximum sentence is eight years’ imprisonment.
[2] The summary of facts and pre-sentence report disclose that you are 32-years- old. You were born and raised in Hong Kong. You have struggled to find good quality employment in Hong Kong. You were approached by unnamed persons when you were in Hong Kong and promised free return airfares to New Zealand and NZ$2,000. Your job when you came to New Zealand was to answer the door and accept packages.
[3] While you were in New Zealand on a visitor’s permit a package arrived in New Zealand on 27 July 2009. It was sent to the address at which you were living, for the name of Chan Wing Tat. The package had been inspected by Customs and contained no illicit substances. You accepted and signed for the package.
[4] On 5 August 2009 a second package came addressed on this occasion to Lai Chun Kit, at the address at which you were living. The package contained women’s t-shirts. Concealed among the layers were three self-sealing clear plastic bags each containing approximately two kilograms each of the Class C controlled drug, pseudoephedrine. Customs officers arranged for the package to be delivered to the address. You accepted and signed for the package giving the name of Peter Chan. You met the courier at the gate, took the package and returned into the garage. When a search warrant was executed an hour and 20 minutes later the package was located unopened in the garage. You were present. The total amount of pseudoephedrine in the packages was approximately six kilograms.
[5] Although there are some contrary indications in the pre-sentence report, your counsel, Mr Newell, in your presence has made it clear today that you accept entirely that you were knowingly involved in the import of pseudoephedrine, and you do not seek to resile in any way from that admission.
[6] As an aside I record that the pre-sentence report states that you did not know you were involved in an illegal activity. You have advised your counsel, Mr Newell, that this is not what you said to the interpreter. This is a matter that should be investigated, and I ask the probation officer to follow it up with the interpreter. Mr Newell is understandably concerned that what might appear to be a refusal to accept responsibility for your actions might work against you when it comes to getting parole at a later date.
[7] The court on sentencing will take into account the principles set out in ss 7, 8 and 9 of the Sentencing Act 2002. The approach in relation to this type of drug offending is now well settled. In R v Wickremasinghe,[1] Chambers J described two categories of drug importer. Category one was for those in the top-level, being the instigators, masterminds, prime movers and controllers. Category two included people who could still be crucial players, but were not instigators, masterminds,
prime movers and controllers. Nevertheless, they were persons without whom the enterprise could not be brought to fruition.
[1] R v Wickremasinghe HC Auckland T013408, 28 March 2003.
[8] In R v Ho[2] Winkelmann J in a decision which has been since approved in the Court of Appeal (R v Qiu[3]), adopted the R v Wickremasinghe categories and applied them to the offence of importing a Class C drug. She estimated a starting point of six to seven years’ imprisonment for category one type offending, and three to five
years’ imprisonment for category two.
[2] R v Ho HC Auckland CRI-2005-092-00567, 12 April 2005.
[3] R v Qiu CA 202/06, 17 October 2006.
[9] Both Crown and defence accept that this is category two offending. The difference between Mr Malarao for the Crown and Mr Newell for you, is that Mr Malarao suggests a starting point of four-and-a-half years’ imprisonment, and Mr Newell suggests a starting point of three years’ imprisonment. Although there were some small differences in the written submissions, both counsel accept that a full discount for an early guilty plea is appropriate which, given the guideline
judgment in R v Hessell,[4] will be one-third.
[4] R v Hessell [2009] NZCA 450.
[10] So, it is necessary to fix the starting point. In doing so I must consider your culpability in terms of the actual offending.
[11] There is only evidence of you being involved in one single incident of importing. Your role, in terms of your conduct, was in the bottom of the range available in category two. Your function was to receive the package and sign the receipt. There is nothing to indicate that you were involved in setting up the import. Indeed, the package was not opened by you, and left presumably for someone else to open and distribute. Your very limited role is consistent with the short period of time in which you were in New Zealand.
[12] However, against this I must balance the fact that the amount of pseudoephedrine was very considerable. It is common ground that the total yield of methamphetamine from the pseudoephedrine would have been 1.159 to
1.739 kilograms, with a total street value of between $695,000 and $2,860,800. I
add that the pseudoephedrine was in the form of Contac NT capsules.
[13] I have been presented with a large range of relevant cases many of which have similarities to the events that concerned you. There appears to be something of a pattern developing of men in China and Hong Kong who wish to better themselves financially being recruited and sent to New Zealand on visitor’s permits to participate in the importation of drugs. There is the distressing possibility that a period in a New Zealand prison sentence is one of the accepted risks to obtain the limited rewards that may be available.
[14] I propose referring to only a few of the cases cited. In R v Zhang[5] a starting point of four years was fixed where the yield of methamphetamine was between 750 to 1.125 kilograms (about two-thirds of what you imported). However, the offender in that case appears to have been more active than you, actually receiving the sofas in which the pseudoephedrine was hidden, taking possession of them, moving them inside, unpacking them, and then placing the Contac NT into a backpack. The starting point fixed was four years’ imprisonment.
[5] R v Zhang HC Auckland CRI-2005-004-008357, 15 September 2006.
[15] In R v Fung[6] the yield was 900 grams to 1.3 kilograms, but the offender there actually collected the methamphetamine in Hong Kong and brought it into New Zealand in his luggage. Thus, there was a considerably greater degree of culpability in that case that the starting point was four-and-a-half years’ imprisonment.
[6] R v Fung HC Auckland, CRI-2009-092-4184, 10 July 2009.
[16] Finally, I refer to the Court of Appeal decision of R v Qiu where the amount of pseudoephedrine was just under five kilograms, and so quite similar to your case, where the offender was involved in recruiting associates who would accept delivery and organise the transfer of drugs to his house. He was to be paid $1,000 for that. A starting point that had been fixed in the District Court at five years’ imprisonment was stated to be at the very top of the available sentencing range, but was not interfered with.
[17] All these cases involve a higher degree of culpability than in your case, in that the offenders were more active in the importation process. Recognising the very significant amount of pseudoephedrine involved, but also your comparatively low level of involvement, I fix the starting point at three years and nine months’ imprisonment.
[18] I now turn to aggravating and mitigating factors relating to you personally. I have already commented on the probation report. Understandably it can say little about your background in Hong Kong, which appears to be unexceptional. I do not sense any real remorse from you in relation to what you have done. Therefore, there are no particular mitigating factors apart from your guilty plea. I do not consider the fact that you face deportation at the conclusion of your sentence as a mitigating factor, given your lack of any connection with New Zealand. Nor, given the relatively limited time you will spend in prison, do I consider the fact that you are serving the sentence of imprisonment away from your home to be a mitigating factor. There are no aggravating factors.
[19] Thus, the only factor I can take into account under this head is your guilty plea. As I have stated, you are entitled to the fullest available discount for this of one-third. I, therefore, apply that one-third discount to the starting point of three
years and nine months’ imprisonment. That will leave an end sentence of two years and six months’ imprisonment.
[20] Stand up please. Mr Lee, you have been involved in a shameful, criminal act. The importation of pseudoephedrine into New Zealand, causes the destruction to lives when it is converted into methamphetamine and distributed. It damages our society. I sentence you to a term of imprisonment of two years and six months. Stand down please.
………………………….
Asher J
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