R v Li HC Auckland CRI 2009-004-27952

[2010] NZHC 1067

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-004-27952

THE QUEEN

v

YIYONG LI

Appearances: C Robertson for the Crown

A Ives for the prisoner

Sentence:       22 June 2010

SENTENCING NOTES OF PRIESTLEY J

Counsel:

C Robertson, Meredith Connell & Co, P O Box 2213, Auckland 1140. Fax: [phone]

A Ives, P O Box 210, Shortland Street, Auckland 1140. Fax:[phone]. Email: [email protected]

R V LI HC AK CRI-2009-004-27952  22 June 2010

[1]      Mr Li, I am about to sentence you today on one charge of possessing the Class C controlled drug pseudoephedrine for the purpose of supply.  That is a charge which carries a maximum penalty of eight years imprisonment.  You pleaded guilty to this charge in the Auckland District Court on 21 April.  The Judge presiding at the District Court, who dealt with you that month, took the view the likely sentence would  exceed  the  District  Court’s  jurisdiction  and  for  that  reason  you  were committed to this Court for sentencing.  During that period of time you have been remanded on bail rather than in custody.

[2]      Your  offending  took  place  in  November  and  December  last  year.    In colloquial  terms  you  can  be  described  as  a  catcher,  working  for  other  people involved in importing pseudoephedrine into New Zealand.

[3]      An unknown person called Mr Wong made inquiries about renting a room at an address in Manukau.   Mr Wong, however, disappeared from the scene.   In December you and one other person went to the address and gave the occupants the false information that Mr Wong had family issues, was not able to take his room, but that he had arranged for a package to be delivered to him at the address.  You asked the occupants to contact you when it arrived.

[4]      As  it  happened  that  evening  a  package,  which  had  already  excited  the attention of New Zealand Customs, was delivered to the address.   It weighed approximately 8.29 kgs and had been dispatched from Spain.   Inside the package were granules of the well known Chinese cold remedy ContacNT.  That product has a high pseudoephedrine content and is attractive to people who wish to manufacture methamphetamine.     In  fact  the  package  contained  just  over  2,190  grams  of ContacNT.   That in turn would have brought  about a harvest of 885  grams of pseudoephedrine which had the potential, and I stress the word potential, to be used in methamphetamine manufacture to produce anywhere between 442 and 663 grams of methamphetamine which would have had a street value of somewhere between

$126,000 and $355,000.

[5]     In expressing those volumes I acknowledge at once that the ultimate methamphetamine yield would have been problematic as would the value.  However,

your offending shows, so far as your culpability is concerned, that you were prepared to  deliver  a  substantial  volume  of  pseudoephedrine,  illicitly imported  into  New Zealand   for   the   purposes   of   some   substantial   form   of   methamphetamine manufacture.

[6]      When you arrived at the address in the morning a police officer was waiting for you.   You took delivery of the package and were promptly arrested when you left.  You had apparently been offered $200 for your services.  Your counsel tells me that probably in the circumstances you never received that sum.

[7]      I say something now about your personal circumstances.  You are currently aged 20.  You are an only child.  You come from Shandong province in China.  You have had a happy childhood.  Although you left school in China a couple of years ago without significant qualifications your parents, undoubtedly at great sacrifice to themselves, arranged for you to come to New Zealand to study English.  You arrived in this country in 2007.  You were clearly reasonably successful because after three months you transferred to a business diploma, a two year course.  You then started to work for a Chinese immigration consultancy.   You resigned from that position on your arrest.  Since then your parents have supported you financially.

[8]      In terms of your immigration status you are technically an overstayer.  You have told the authorities you want to return to China as soon as you have served your sentence.  You have not offended before.  You have no outstanding fines.  You are in good health.   Regrettably, although you have been in this country now for approximately three years, your command of the English language is limited.  You are  currently  living  in  a  four  bedroom  house  in  New  Lynn  with  four  Chinese students about your age or slightly younger.   That address is suitable for home detention purposes if that is the sentence I impose on you.

[9]      You say in explanation of your offending that you had been asked to collect this parcel by two people as a personal favour for which they would give you $200. You admit, and sensibly so, that the possibility that there would be some illegality attaching to this crossed your mind, but you thought it could not be too serious.  You

were short of cash at the time and because you were being paid so little you didn’t think that you would be taking a significant risk.

[10]     To your credit you have no history of problems with alcohol, gambling, or drug abuse.

[11]     I have read three letters which have been written in your support by various friends of yours.  All of those letters say that you have made a serious mistake but this was an uncharacteristic mistake.  I accept that.  It was a mistake, a serious error of judgment on your part which will have serious consequences for you for the rest of your life.

[12]     I turn now to the presentence report.  Home detention was not recommended, mainly because the Department for Corrections at that stage did not think they had access to a Mandarin speaking corrections officer.   That difficulty, however, has been resolved as a result of inquiries made by your counsel.  The presentence report, for what it is worth, recommended imprisonment.   As I have said you have no previous convictions.

[13]     Addressing, but briefly, relevant Sentencing Act purposes and principles the main ones here, so far as s 7 purposes are concerned, are denunciation and holding you accountable for what was serious drug offending.   Deterrence must also be a factor for catchers such as yourself.   I must recognise the extent to which methamphetamine can cause extensive harm in our community.  I need to impose a sentence which is consistent with others in the field.  Finally, because of your age and good record, I should endeavour to impose a sentence which is the least restrictive outcome.

[14]     Aggravating features so far as your offending is concerned and your general culpability is the degree of premeditation.  You knew what you were doing.  You knew it was probably wrong, but you decided to take the risk for what would have turned out to be a gain of $200.

[15]     Mitigating factors relevant to you are your guilty plea at a relatively early stage, your youth, and your good record hitherto.

[16]     I have been considerably assisted by competent submissions by both counsel. Ms Robertson for the Crown has compared your offending, correctly so, with R v Zhan.[1]   She submits a three year start point would be appropriate.  She also accepts that you are entitled to a discount in the 25 – 30% range for your guilty plea.

[1] R v Zhan (HC Auckland, CRI 2006-004-22722, 18 September 2007, Stevens J).

[17]     Your own counsel, Ms Ives, who has served you well, urges on me an end sentence of home detention.  She submits that an appropriate start point should be in the  order  of  two  years  and  six  months  imprisonment  before  discounting  for mitigating factors.  She says your culpability is at the bottom end of offending of this type.

[18]     In terms of Winkelmann J’s analysis in R v Ho,[2] , you are clearly a category 2 offender.

[2] R v Ho (HC AK CRI 2007-092-000567 12 April 2005).

[19]     Catchers are designed to pick up illicit drugs, usually imported into New Zealand through the postal system, and to make delivery to another address, thus protecting more significant players from the risk of detection.  In other words, Mr Li, you were a pawn and have effectively ruined your life in this country for $200.

[20]     Your conviction, however, is for possession of pseudoephedrine for supply, not for importation.

[21]     I accept that you made a foolish mistake.   You must have suspected, as indeed you accept, that what you were doing was wrong but I think it is unlikely you had any idea of what precisely was in the parcel you were collecting or its quantity. Nonetheless there is an element of premeditation.

[22]     I have no intention of analysing exhaustively comparable cases.   I think I

should fix a start point which sits comfortably alongside the start points of R v Zhan[3]

and R v Yin,[4]  although the amount of pseudoephedrine you possessed was greater than in Zan but less than in Yin.   Both counsel, and in particular Crown counsel, accept that this is pitched at approximately the right level.  Your culpability relates to your activity as a catcher rather than any direct knowledge you might have had of the quantity of pseudoephedrine.

[3] R v Zhan (HC AK CRI 2006-004-22722, 18 September 2007, Stevens J).

[4] R v Yin [2008] NZCA 257.

[23]     In the circumstances I consider a start point of two years and nine months imprisonment is appropriate.   To that should be applied a 30% discount to reflect your early guilty plea which would reduce your sentence to one of one year and 11 months.  I intend to apply a further three month discount to reflect your previously good character, your youth, and the effect a term of imprisonment might have on you.

[24]     That  would  bring me to  an  end  sentence  of  one  year  and  eight  months imprisonment.

[25]     This brings me, without difficulty, into the home detention range.  Although you are an overstayer and will undoubtedly be sent back to China at the end of any sentence I must impose, and I note that you want to go back to China in any event, the Court of Appeal has made it abundantly clear that being an overstayer is no barrier to imposing a home detention sentence which might otherwise be available in terms of Sentencing Act principles (R v Hassan,[5]  and R v Ondra[6]), and I commend Ms Robertson for very properly bringing those cases to my attention.

[5] R v Hassan [2008] NZCA 402.

[6] R v Ondra [2009] NZCA 489.

[26]     I note that the presentence report points to difficulties there may have been in a  home  detention  sentence  in  the  New  Lynn  area  because  Department  for Corrections has no Mandarin speaking resources.  That is not a consideration which can properly influence this Court.  It would be discriminatory to refuse to impose a sentence on you which might otherwise be available.  The Department will need to do the best it can and I note that in any event current indications to your counsel are that a Mandarin speaking corrections officer can be made available to generally monitor a home detention sentence.

[27]     Stand up at this stage please.

[28]     In all the circumstances I consider that the appropriate sentence to impose on you is a sentence of nine months home detention, which I do.

[29]     You are thus to travel directly to flat 1, 26 Ambrico Place, New Lynn and to remain at that address until the arrival of probation and security staff.  You are to reside at that address for the duration of the nine month sentence and not to move without prior written approval of a probation officer.  You are to abstain from and not be in possession of any illegal drugs or alcohol during the duration of the home detention sentence.  That means no liquor.  Do you understand that?

[Prisoner nods affirmatively.]

[30]     There is no barrier on you being employed if you can find a job but any such employment must be with the prior written approval of your probation officer.

[31]     Thank you.  Stand down.

.......................................… Priestley J