R v Lu HC Auckland CRI 2005-004-18884

[2007] NZHC 1602

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-004-018884

THE QUEEN

v

QI LU WEN GUO

Hearing:         9 February 2007

Appearances: S L McColgan for Crown

S D Cullen for Lu

L Freyer for Guo

Judgment:      9 February 2007

SENTENCE OF KEANE J

Solicitors:

Crown Solicitor, Auckland

R V QI LU AND ANOR HC AK CRI 2005-004-018884  9 February 2007

[1]      Qi Lu you appear for sentence for importing at Tauranga, on 6 February

2005, the class C drug pseudoephedrine. Wen Guo  you appear for  sentence  for possessing at Auckland, on 23 February 2005, the class C drug pseudoephedrine for the purpose of supply.

[2]      You were to go to trial together on 13 November 2006 on an indictment alleging that you together imported and possessed the pseudoephedrine and that you conspired together to manufacture the class A drug methamphetamine. Your present counsel did not become engaged until quite late. Their instructions from you both were that you admitted the importing and possession offences and did not wish to defend them and, as the Crown has accepted today, there was no basis on which you could be charged with conspiracy to manufacture.

[3]      The result is that in October 2005 you were charged afresh, you Qi Lu with importing, and you Wen Guo with possessing. And you immediately accepted responsibility for those offences.

Context

[4]      Your offences first  became apparent, in prospect, when a container  from Hong Kong that entered New Zealand through Tauranga arrived in Auckland. Within the  container  was  a  consignment  of  a  sofa  and  two  one-seater  chairs.  The consignment was addressed to a person named Wen Feng at a Mt Roskill address. Customs officers  found  in the  arms of the  sofa  ten  bags  each  containing  3000 pseudoephedrine capsules, in total 30,000 capsules, that could be anticipated to yield some 1.35 kilograms of pure methamphetamine with a potential value of $1.35M.

[5]      On 19 February a person called Wen Feng arrived in New Zealand from Hong Kong. His arrival card gave a Queen Street address and a cellular telephone number.  On 21  February a  person calling  himself Wen  Feng  rang  the  shipping company and asked that it be delivered to an unoccupied Balmoral Road address. This person gave a cellular telephone number for contact under the name of Feng, though that was not the number on the arrival card three days before.

[6]      On the morning of Wednesday 24 February the police observed the furniture being delivered to the Balmoral Road address. They saw the two of you parked just down from the address in your blue 2000 model Subaru Legacy car, Qi Lu. You were seen to go to the address to sign for the furniture and to move it to the rear of the address. You, Wen Guo, were seen to drive the Subaru away and to return five minutes later in a Metropolitan Rentals truck.

[7]      The two of you were then seen to load the truck. You,Wen Guo, remained in the rear  while you, Qi Lu, drove the truck from the address. The police followed you for 15 to 20 minutes around the Balmoral area. You, Wen Guo, then got out of the rear and into the cab carrying a backpack. The two of you drove off again and stopped shortly after, still in Balmoral, at the point to which you, Wen Guo, had driven the Subaru Legacy.

[8]      You, Wen Guo, then got out of the truck and drove the Subaru back towards Auckland City, taking the bag with you. You, Qi Lu, drove the truck in the opposite direction but  eventually headed towards Auckland  City as well.  You both were apprehended in Anzac Avenue. The pseudoephedrine, Wen Guo, was found in your possession. You, Qi Lu, when spoken to in the truck further down Anzac Avenue, said that you were waiting for Wen Guo to park your car.

[9]      At that time you, Wen Guo, told the police that when you were in the rear of the truck in Balmoral, you were removing the bags of capsules from the furniture. You denied knowing that they were anything more than medication. You, Qi Lu, stated that you were assisting Wen Guo to pick up the furniture on instructions from Wen Feng, whom you did not know. But found in your flat bedroom were a copy of the import documents and of Wen Feng’s passport.

[10]     Wen Feng has never been apprehended. Nor is there any evidence, it appears, that he has left the country. His position remains enigmatic.

Issues on sentence

[11]     In sentencing you, as your counsel necessarily accept, I must give priority to denouncing what you have done, to holding you accountable for what you have done, and to deterring you and others from acting in this way. Your personal factors, and those that go to your rehabilitation, which normally have a part to  play on sentence, given the serious of your offending and the nature of it must be given second place.

[12]     There is no issue either that each of you is to be understood as a facilitator or crucial player in this importation: R v Wickremasinghe (HC Auckland, T 13408, 28

March 2003); R v Ho (HC Auckland, 12 April 2005, Winkelmann J). The sentence to be imposed on you must be consistent with those in similar cases. But the roles each of  you  played  were  different,  the  charges  you  face  are  different  and  I  must distinguish between you, as all counsel accept, on sentence.

Qi Lu

[13]     Qi Lu, I begin with you. You are 26 years of age. You are from China. You have been in New Zealand since 2000 on a student visa. As a result of this offending you are now subject to a removal order and once your sentence is served you will leave New Zealand. You are, as is apparent from letters from friends of yours, of good character and this offending is atypical. I have from you also a letter expressing your profound remorse.

[14]     Your part in this came about in this way, I understand from your counsel. You were asked to assist in uplifting the furniture and collecting the capsules. You say a fellow student asked you to do so, though whether that is actually so I have to question. A copy of Wen Feng’s passport and the import documents was found in your bedroom. More concretely, as you yourself accept, you were to be rewarded for your part. You were to receive between $1,000 and $3,000.

[15]     You do not concede that you knew what the capsules were. You deny still knowing that they were able to be used in the manufacture of methamphetamine. You say that you were privy to importing cheap flu medicine and that the profit to be

made sprang from the price at which they could be sold in  New Zealand. I have to say I am sceptical about that, but that is your position.

[16]     The  Crown  does  accept  that  Wen  Feng,  whose  part  as  I  say  remains enigmatic, did play a central role in this offending. The Crown accepts also that it is difficult to identify with certainty what part he played and what part you played. As the Crown says, the customs and courier documents were falsely completed. The consignment   was  addressed  to  a  fictional  address.   Non-attributable  pre-paid cellphone numbers were used. All of these steps were obviously calculated to shield Wen Feng and indeed you. The result is that your part still remains less than fully clear.

[17]     What the Crown does say is that this offending was deliberate, carefully planned  and for significant profit, and that you, for a significant sum of money, were prepared to  play a  part.  The  Crown  then  describes  you  as  a  crucial  player  or facilitator and you do not deny that.

[18]     The Crown submits that in sentencing you, I should align you with Zhigang Yu (HC Auckland, CRI 2005-004-0110703, 15 December 2006), whom I sentenced in December last year for nearly identical offending, and that I should take as a starting point for your sentence five years imprisonment. The Crown also invites me, inferentially, to impose a like end sentence. As with Zhigang Yu the only factor that mitigates your offending is your guilty plea. The sentence I imposed on him was three years, nine months imprisonment.

[19]    Your own counsel contends for a sentence between two to three years imprisonment. The features aggravating your offence, that it was premeditated and of a significant scale cannot she accepts be denied. She emphasises instead four factors: your plea at the first realistic opportunity after advice; the absence of any previous offending on your part; your age; and the fact that you will have to leave New Zealand immediately your sentence is served. She submits that the removal order in itself will be a significant penalty.

[20]     When sentencing Zhigang Yu, I reviewed cases similar to his and yours and came to the conclusion that a five year starting point for his offending was required. There is this distinction between you and him, however. There was plain evidence that he was fully engaged in importing the capsules of which he took delivery. The evidence that you were as fully engaged is not so clear. That may be because the part that Zhigang Yu played was played by your co-offender, who is not before the Court. It might equally be that you played the same part but you concealed your hand more skilfully. Though I am sceptical, I must sentence you, I consider, on the conservative premise that you are not as fully engaged in this offending as Zhigang Yu was in his. I take, therefore, a starting point for your sentence of four years, six months imprisonment.

[21]     You are entitled to a credit for plea and, in fixing that credit, I take account of the fact that while your plea may appear to have come relatively late, that may well be explained by the nature of the Crown’s case to that point and by the advice that you had until then received from your prior counsel. I am prepared to accept that you were willing to plead from the earliest opportunity. I take some account also of the other factors on which your counsel relies. You will be sentenced to three and a half years imprisonment.

Wen Guo

[22]     Wen Guo, you are a student. You are aged 27 years. You have been in New Zealand since 2002. You have no  previous convictions. I have numerous letters describing you as a person of very good character and this offending as surprising and inexplicable. You have also, like your co-offender, written a letter to me expressing your profound regret.

[23]     The offence you face is, as I have said already, of a lesser order to that faced by your co-offender. As the Crown immediately accepts, there is no evidence to link you to the importation. The Crown’s case is rather that you knowingly assisted Qi Lu to take delivery.  You  extracted the  drugs from the  sofa and  they were  in  your possession when the two of you were apprehended. You were also a facilitator or crucial player but not as seriously as Qi Lu. It is also no part of the Crown’s case that

you did this for reward. Your counsel indeed says that you expected a meal and that is all. He has emphasised also that you had no sense that the capsules could be used in the manufacture of methamphetamine, a fact which the Crown confirms. At most you were assisting a friend.

[24]     The fact remains that you were found in possession of capsules, readily able to be converted to methamphetamine with a very high street value. And you must have understood, from the way in which you took delivery and the way in which you extracted the capsules from the sofa, that this was dishonest in some serious way. To what extent you were ignorant has to be open to some question.

[25]     For all that, I consider that you are to be distinguished significantly from your co-offender.  I  take  a  starting  point  in  your  case  of  three  and  a  half  years imprisonment and, because your plea was, as I accept, at the earliest opportunity, and because this offending was so completely out of character, the sentence I impose on

you is two years, six months imprisonment.

P.J. Keane  J