R v Li
[2023] NZHC 891
•21 April 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-004-4183
[2023] NZHC 891
THE KING v
YANGZI LI
Hearing: 21 April 2023 Counsel:
C McDiarmid for Crown S R Lack for Defendant
Judgment:
21 April 2023
SENTENCING NOTES OF HINTON J
Solicitors: Meredith Connell, Auckland
R v LI [2023] NZHC 891 [21 April 2023]
[1] Mr Li, you appear for sentence after having accepted a sentence indication provided by me on 16 February 2023. You have pleaded guilty to the following charges: one charge of importing class A controlled drug methamphetamine;1 three charges of importing class B controlled drug MDMA;2 one charge of possessing class A controlled drug methamphetamine;3 one charge of possessing the class A controlled drug cocaine for purposes of supply;4 one charge of possessing the class C controlled drug cannabis for purposes of supply;5 and one charge of defrauding the Customs revenue.6
The facts
[2] The facts underlying your offending are set out in full in the sentence indication attached to these sentencing notes. In short, you emigrated to New Zealand in September 2005 as a resident. You gained citizenship in 2009. The charges you have pleaded to relate to the importation for distribution of controlled substances and undeclared cigarettes into New Zealand between 7 July 2019 and 20 August 2020. You worked alongside a Mr Zhang to carry out these offences. Mr Zhang has since been sentenced.
[3] I do not repeat the summary of the offending which is set out at paragraphs [3] to [10] of the sentence indication. I rely on the indication itself. Given the supplementary orders sought by the Crown,7 I note in particular the items found in your possession listed at paragraph [6] of the indication, including 2.724 grams of methamphetamine and $10,700 in cash.
Approach to sentencing
[4] I also rely on, and remind myself of, the principles and purposes of sentencing set out at [11] and [12] of the sentence indication. I would emphasise that consistency
1 Misuse of Drugs Act 1975, ss 6(1)(a) and 6(2)(a). Maximum penalty life of imprisonment.
2 Sections 6(1)(a) and 6(2)(b). Maximum penalty of 14 years’ imprisonment.
3 Sections 7(1)(a) and 7(2)(a). Maximum penalty of 6 months’ imprisonment or $1,000 fine.
4 Sections 6(1)(f) and 6(2)(a). Maximum penalty of life imprisonment.
5 Sections 6(1)(f) and 6(2)(c). Maximum penalty of 8 years’ imprisonment.
6 Customs and Excise Act 2018, ss 371(1)(a) and (4)(a). Maximum penalty of 5 years’ imprisonment or a fine not exceeding $20,000.
7 Addressed at [28].
is important in sentencing and applies in this case with respect to your co-defendant, Mr Zhang.
Starting point
[5] I turn to the starting point. The guideline for sentencing of methamphetamine offending is Zhang v R,8 modified in part by the recent Supreme Court decision in Berkland v R.9 The Court of Appeal in Zhang laid out sentencing bands to be applied with reference to the quantity of methamphetamine involved and emphasised the importance of considering the role played by an offender when setting a starting point. You imported 1.472 kilograms of methamphetamine at a purity of 70 per cent, placing your offending within band 4 of Zhang. Counsel agreed that your role in the enterprise was “significant”, although Mr Lack argued your role was at the lower end of “significant”.
[6] Counsel referred me to the cases of Faiyum v R10 and Moheebi v R11 where the defendants were involved in methamphetamine importation. I rely on the discussion of those cases set out in the sentence indication.
[7] As stated in the indication, the test in Zhang takes as its first factor the quantum of methamphetamine, which is less than half the amount in Faiyum and is at the mid- point of band 4. However, I consider your role more significant than in Faiyum, particularly as regards your direction of Mr Zhang. I place your offending in the “significant” category. You clearly had operational knowledge. There is no evidence of your having been coerced or otherwise pressured into participating in the offending. You may not have been the sole benefactor of the operation but the cash deposits of some $50,000 show that you gained significant financial benefit from the enterprise which was not evidenced in Faiyum.
[8] In the sentence indication I acknowledged you apparently suffered from methamphetamine addiction, but it was not argued that you were motivated primarily
8 Zhang v R [2019] NZCA 507.
9 Berkland v R [2022] NZSC 143; [2022] 1 NZLR 509.
10 Faiyum v R [2020] NZCA 523.
11 Moheebi v R [2020] NZCA 343.
or significantly by your addiction, unlike in Faiyum. I noted that the issue of addiction may be relevant in this case in terms of personal mitigating circumstances. Viewed overall, although there are obvious difficulties, I consider your culpability to be similar to that of Mr Faiyum and confirm that a starting point of 10 years’ imprisonment is appropriate.
Uplifts and guilty plea
[9] In accordance with the submissions of both counsel an uplift for your further offending is clearly necessary and two years’ imprisonment is appropriate in the circumstances. That brings me to a global starting point of 12 years’ imprisonment.
[10] I find that a 20 per cent discount for a guilty plea is appropriate, as stated in the sentence indication.
Personal mitigating factors
[11] That then brings me to other personal mitigating factors on which I now have submissions from your counsel. Your counsel points to your efforts at rehabilitation and your remorse. The Crown do not oppose the discounts sought or reasons for them.
Rehabilitation
[12] This was commercial offending and there was clearly a financial motive. But, in addition, you were a drug user. Your use of the drug may have led you to form the associations which ultimately led you to offend in this way. I do not accept that the addition was causative of your offending, but I accept that it clearly played a part. Further, if you are facing up to your addiction, which you say you are, that is relevant to your chances of rehabilitation.
[13] I agree with your counsel it is to your credit that since being charged with the present offending, you have engaged in many different rehabilitative courses available to you in custody. These are designed, at least in part, to address the underlying issues which contributed to your present offending.
[14] Additionally, you have engaged in employment as a further progression of your rehabilitation. You have received a number of certificates and diplomas of recognition. A copy of these certificates has been provided to me. The relevant rehabilitative programmes include diplomas of recognition for completing the taking charge of your life course and for completing the relationships course; a certificate for completing time for change; a certificate for completing a stress management programme; and certificates acknowledging your employment. You also have a certificate of achievement for completing the problem gambling prevention workshop and a certificate of achievement for completing a gambling harm minimisation review programme.
[15] There can be no doubt that you have undertaken the rehabilitative opportunities that have become available to you so far, to address the underlying causes of your offending and to prepare you to reintegrate into the community as a positive member.
[16] I agree with your counsel that a reduction of 10 per cent is appropriate to reflect your positive engagement in rehabilitation.
Reports
[17] A Provision of Advice to the Courts report has been prepared. It is clear you engaged fully and openly with the interview process for that report. The report writer recorded that you were polite and engaged well. More importantly, the report writer noted that you took responsibility for your offending during the interview.
[18] In relation to the present offending, you were candid about your conduct and what led to it. You said it was a stressful time for you as you had no familial support or money and were tempted by the ability to pay for materialistic things. You report that, having had the time to reflect on your life and offending, you learned that life is precious and material things are not important.
[19] While you admit that your offending is a “hard track to get out of”, you say you understand the impact the substances have on the community and people’s lives, and you discussed with the report writer, that life is precious. You accept that your offending was not right.
[20] I have today also been provided with a letter that you have written which confirms the points already made.
[21] I accept from your interview with the report writer and your letter to the Court this morning that you are remorseful about your offending, even if that is somewhat confused with the consequences for you which are of course very grave. You are able to demonstrate insight into the impact that your offending had upon the community. I agree with your counsel that your remorse and insight into your offending justifies a discrete reduction of 5 per cent.
Totality considerations
[22] I now turn to totality considerations. During the course of these proceedings, you pleaded guilty in the Auckland District Court to charges of possession for supply of a class A drug cocaine and possession for supply of a class B drug MDMA.
[23] On 4 August 2022, you appeared in the Auckland District Court before Judge Thomas for sentencing. Judge Thomas imposed a sentence of one year, 8 months’ imprisonment.
[24] Where an offender has already been convicted and sentenced for offences that were committed after the offending which is before the Court, the totality principle is generally applied. This requires that I determine the appropriate sentence for the present offending as if both sets of offending were being dealt with together.
[25] I accept your counsel’s submission that had the two sets of charges been dealt with together, it is likely there would have only been a further uplift of about one year’s imprisonment. I agree that the net effect is that a reduction should be made of six months’ imprisonment from the sentence I have reached, after deducting for mitigating circumstances. I note that the Crown also accept that approach.
[26] That brings me to a final sentence of 7 years, 3 months’ imprisonment, allowing for slight rounding down. As already indicated, no MPI is required in the present case. None was sought by the Crown.
Sentence
[27] Mr Li, I ask you to stand. On the charge of importing the class A controlled drug methamphetamine, I sentence you to 7 years, 3 months’ imprisonment. On each of the other charges, you are sentenced to 2 years’ imprisonment. All sentences are concurrent.
Supplementary orders
[28] Finally, the Crown seeks supplementary orders, which are not opposed by your counsel, and I make them as follows:
(a)An order for the destruction of all substances, materials and equipment seized by Police in respect of which your offences were committed and which were in your possession; and
(b)Forfeiture of the NZ$10,700 cash seized from your residential address at 5 Ascent Street, Flat Bush, on 16 July 2020.
[29]You may stand down, Mr Li.
Hinton
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS
PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-004-4183
[2023] NZHC 201
THE KING v
YANGZI LI
Hearing: 16 February 2023 Counsel:
H Steele for Crown
S R Lack for Defendant
Judgment:
16 February 2023
JUDGMENT OF HINTON J
(Re: Sentence indication)
This judgment was delivered by me on 16 February 2023 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Meredith Connell, Auckland
R v LI [2023] NZHC 201 [16 February 2023]
Introduction
[1]Mr Yangzi Li seeks a sentence indication in respect of the following charges:
(a)importing the class A controlled drug methamphetamine (Charge 45); 1
(b)three charges of importing the class B controlled drug MDMA (Charges 42, 43 and 44);2
(c)possessing the class A controlled drug methamphetamine (Charge 36);3
(d)possessing the class A controlled drug cocaine for the purpose of supply (Charge 37);4
(epossessing the class C controlled drug cannabis for the purpose of supply (Charge 38);5 and
(f) defrauding Customs revenue (Charge 14).6
Agreed summary of facts
[2] Mr Li emigrated to New Zealand in September 2005 as a resident. He gained citizenship in 2009. The charges Mr Li faces now relate to the importation for distribution of controlled substances and undeclared cigarettes into New Zealand between 7 July 2019 and 20 August 2020. Mr Li worked alongside a Mr Zhang to carry out these offences. Mr Zhang has since been sentenced.
1 Misuse of Drugs Act 1975, s 6(1)(a) and 6(2)(a). Maximum penalty life imprisonment.
2 Section 6(1)(a) and 6(2)(b). Maximum penalty 14 years’ imprisonment.
3 Section 7(1)(a) and 7(a)(2). Maximum penalty 6 months’ imprisonment or $1000 fine.
4 Section 6(1)(f) and 6(2)(a). Maximum penalty life imprisonment.
5 Section 6(1)(f) and 6(2)(c). Maximum penalty 8 years’ imprisonment.
6 Customs and Excise Act 2018, s 371(1)(a) and (4)(a). 5 years’ imprisonment or a fine not exceeding $20,000.
Defrauding the revenue of customs (Charge 14)
[3] Between 19 August 2018 and 27 June 2020, the New Zealand Customs Service intercepted numerous consignments of tobacco cigarettes imported into New Zealand by Mr Zhang using false consignee names and/or addresses.
[4] Between 7 July 2019 and 16 January 2020, Mr Li imported two consignments of tobacco cigarettes into New Zealand using false names and/or addresses. Those imports were intercepted by Customs and found to comprise a total of 8,320 tobacco cigarettes worth $9,677.25 (incl GST) in unpaid duty.
Controlled drugs
[5] Between approximately 28 July 2020 and 20 August 2020, Mr Li imported four consignments of controlled drugs into New Zealand by post using false names and/or addresses. Customs intercepted those consignments and found them to contain:
a)Three imports totalling 7.348 kilograms of the Class B controlled drug MDMA (Charges 42 - 44); and
b)One import of 1.472 kilograms of the Class A controlled drug methamphetamine (Charge 45).
Search warrant executed at Mr Li’s address
[6] A search warrant executed at Mr Li’s home address of [redacted] on 16 July 2020 located the following items in his possession:
(a)2.724 grams of methamphetamine (Charge 36);
(b)A red tin containing two bags of cocaine totalling 33.1 grams (Charge 37);
(c)42.7 grams of cannabis (Charge 38);
(d)A white grinder and plastic cup, both with cannabis residue on them;
(e)Two sets of electronic scales;
(f)Two ‘Glad’ boxes containing zip lock bags;
(g)NZD $10,700 in cash;
(h)A glass methamphetamine pipe;
(i)A Vodafone pamphlet featuring the handwritten details “Zhihao Steven, [redacted]” and the phone number[redacted], in Mr Li’s bedroom. That phone number was the consignee contact number provided for the two consignments concealing a total of 8,320 cigarettes (Charge 14); and
(j)Four mobile phones and various other electronic items.
[7] Analysis of Mr Li’s personal mobile phone located multiple New Zealand Post account profiles, including names, log in emails, passwords and mobile phone numbers that matched each of the imported postage parcels intercepted by Customs and found to contain controlled drugs (Charges 42 – 45).
[8] Mr Li’s personal mobile phone featured messaging applications with end-to- end encryption and auto-deletion. Forensic analysis of that phone however showed that Mr Li was in regular contact with overseas suppliers regarding the importation of controlled drugs to New Zealand and their distribution here. It also showed that those overseas suppliers knew of Mr Zhang and the tasks that Mr Li had him complete. Mr Li similarly shared screenshots of his messaging history with those overseas suppliers with Mr Zhang.
[9] Forensic analysis of Mr Zhang’s phone showed that Mr Li was also in regular contact with Mr Zhang to discuss the postal logistics for the importation of controlled drugs.
[10] Between 5 January 2020 and 31 June 2020, approximately $51,399.60 was deposited into Mr Li’s personal bank account through 29 deposits.
Approach to sentencing indication
[11] In sentencing, a Court must consider the purposes and principles of sentencing found in the Sentencing Act 2022. In this case, as in all cases of commercial methamphetamine offending, it is relevant to foreground the social harm resulting from this conduct, and impress upon the defendant a sense of responsibility for and acknowledgement of that harm. Sentencing must both denounce the defendant’s conduct and assist in his rehabilitation by imposing the least restrictive sentence possible in the circumstances.7
[12] In respect of Mr Li, I must take into account the gravity of his offending, and his level of culpability. I note that consistency is important in sentencing and applies particularly in this case with respect to Mr Li’s co-defendant Mr Zhang. However, close consideration of the facts and a flexible approach is required to achieve justice.8
Submissions
[13] Mr Steele, counsel for the Crown, submits a starting point of 10 years’ imprisonment for the lead charge of importing methamphetamine. The Crown proposes an uplift of two years’ imprisonment in respect of the additional charges of importing MDMA and defrauding the revenue of customs, to reflect the principle of totality. This would result in a starting point of 12 years’ imprisonment. Mr Steele submits that should Mr Li plead guilty and accept this indication, a discount of 15 per cent may be appropriate.
[14] The Crown acknowledges that no minimum period of imprisonment was imposed on Mr Li’s co-defendant, Mr Zhang, and in the interests of parity does not seek a minimum period of imprisonment in this case.
[15] Mr Steele further indicates that the Crown will seek an order for destruction of all relevant substances, materials and equipment seized by Police and forfeiture of
$10,700 cash seized from Mr Li’s address, pursuant to ss 32(1) and 32(3) of the Misuse of Drugs Act 1975.
7 Sentencing Act 2002, s 8.
8 Hessell v R [2011] 1 NZLR 6007, at [38].
[16] Mr Lack, counsel for Mr Li, submits that the Crown’s starting point for the lead charge is too high. Having regard to the quantity of methamphetamine and Mr Li’s role within the enterprise, he submits that a starting point of nine years’ imprisonment is appropriate for the lead offending. He agrees with the Crown that a two-year uplift is appropriate with respect to the other charges. He submits a global starting point of 11 years’ imprisonment should be fixed. Further, he contends that a 20 per cent discount should be available to Mr Li.
Discussion
Starting point
[17] The guideline case for sentencing of methamphetamine offending is Zhang v R,9 modified in part by the recent Supreme Court decision in Berkland v R.10 The Court of Appeal in that case laid out sentencing bands to be applied with reference to the quantity of methamphetamine involved and emphasised the importance of considering the role played by an offender when setting a starting point.
[18] Mr Li imported 1.472 kilograms of methamphetamine at a purity of 70 per cent, placing his offending within band 4 of the Zhang guidelines. Counsel agree that Mr Li’s role in the enterprise was significant, though Mr Lack argues that his role was at the lower end.
[19] Counsel have referred me to the cases of Faiyum v R11 and Moheebi v R12 in which the defendants were involved in methamphetamine importation.
[20]Mr Faiyum was charged in relation to three importations of a total of
3.2 kilograms of methamphetamine and importation of 535 grams of cocaine. Evidence obtained from his mobile phone as to his involvement included consignment tracking numbers and text communications with others in the operation as to collection and distribution. The District Court Judge considered that Mr Faiyum played a
9 Zhang v R [2019] NZCA 507.
10 Berkland v R [2022] NZSC 143.
11 Faiyum v R [2020] NZCA 523.
12 Moheebi v R [2020] NZCA 343.
“reasonably significant role as a catcher” and considered a starting point of 11 years’ imprisonment appropriate.
[21] On appeal, the Court of Appeal considered that the District Court had overstated Mr Faiyum’s role in the offending and that the starting point should have been 10 years’ imprisonment. The Court considered it relevant that Mr Faiyum was acting at the direction of others with whom he became involved because of his drug- taking. Mr Faiyum had no influence on others in the operation and became involved both for financial gain and to supply his addiction. The Court noted a degree of coercion but also that Mr Faiyum should have reported that to the Police. They allowed that the sophisticated nature of the import operation, and the number of packages being sent and received, suggested that Mr Faiyum must have had some knowledge of the scale of the operation. Mr Faiyum’s role was determined to be somewhere between “lesser” and “significant”.13
[22] Mr Moheebi was charged with importing 500 grams of methamphetamine, along with other drugs and firearms. A storage unit rented by Mr Moheebi was searched and found to contain a number of electronic scales, cannabis and cannabis utensils. Evidence from his mobile phone indicated that he had supplied 9.1 grams over 10 occasions. In the District Court, the Judge adopted a starting point of 12 years’ imprisonment. On appeal, the Court of Appeal held that while the quantity of methamphetamine brought Mr Moheebi to the cusp of bands 2 and 3 of Zhang, he played a leading role in the enterprise, having been solely responsible for the imports. The Court considered that a starting point of 11 years’ imprisonment was therefore appropriate.
[23] The Crown contends that Mr Li’s offending falls between Faiyum and Moheebi, in that his role was less significant than Mr Moheebi’s but more than Mr Faiyum’s, with specific reference to his direction of his co-defendant Mr Zhang and his connection to a broader importation network. Mr Steele argues that Mr Li’s culpability must be less than in both those cases, as the quantity of methamphetamine involved was less than half of that in Faiyum, and Mr Li was acting as part of a
13 Above n 11 at [22].
hierarchical chain taking orders from overseas actors. While acknowledging that Mr Li acted for financial gain, he points to the difference in value of the defendant’s alleged share of profit ($51,399.60) to the estimated value of the imported drugs (approximately $294,400.00 for the methamphetamine and $477,620.00 for the MDMA). He contends that this demonstrates Mr Li’s relatively lesser position in the operation.
[24] The test in Zhang takes as its first factor the quantum of methamphetamine involved, which as Mr Steele indicated is less than half the amount in Faiyum and is at the mid-point of band 4. However, I consider Mr Li’s role more significant than in Faiyum, particularly as regards his direction of Mr Zhang. I place Mr Li’s offending in the “significant” category. He clearly had operational knowledge. There is no evidence of Mr Li having been coerced or otherwise pressured into participating in the offending. He may not have been the sole benefactor of the operation, but the cash deposits show that Mr Li gained significant financial benefit from the enterprise, which was not evidenced in Faiyum. While I acknowledge that Mr Li apparently suffered from methamphetamine addiction, it was not argued that he was motivated primarily or significantly by his addiction unlike in Faiyum. (The issue of addiction may be relevant in this case in terms of personal mitigating circumstances.) Viewed overall, although there are obvious differences, I consider Mr Li’s culpability to be similar to that of Mr Faiyum. I have therefore decided that a starting point of ten years’ imprisonment is appropriate.
Uplifts
[25] The Crown submits that an uplift of two years’ imprisonment is appropriate to reflect Mr Li’s other charges, and Mr Steele acknowledges the same. An uplift for Mr Li’s further offending is clearly necessary, and I agree with counsel that two years’ imprisonment is appropriate in the circumstances. This brings the global starting point to 12 years’ imprisonment. I agree with the Crown submission that had the initial starting point been at the lower level suggested by Mr Lack, a higher uplift would have been appropriate in any event to properly reflect totality.
Guilty plea
[26] The Crown submit that a 15 per cent discount would apply should Mr Li accept this sentencing indication. Mr Steele considers this too low, instead suggesting that Mr Li is entitled to a 20 per cent discount. He says that the delay in plea to date can be at least partially explained by the course of the charges, including amendments made (admittedly not to the current charges but nonetheless materially affecting Mr Li’s overall position) following Mr Li’s engagement with the Crown in September 2022. Given also that the trial date is still a few months away, I have decided a 20 per cent discount for guilty plea would be appropriate.
Personal mitigating factors
[27] I note that further discounts may be available at sentencing, should the Court receive submissions to that end.
Minimum period of imprisonment
[28] While knowing participation in commercial methamphetamine operations often attracts a minimum period of imprisonment pursuant to s 86 of the Sentencing Act 2002, I note that the guidance of the Court of Appeal in Zhang is to refrain from applying a minimum period as routine. Given Mr Li’s co-defendant in this matter, Mr Zhang, was not subject to a minimum period of imprisonment, it would lead to a disparate outcome to apply one in this case. I note the Crown’s acceptance of this position.
Hinton J
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