R v MA - [2015] NZHC 1694

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-092-013289 [2015] NZHC 1694

THE QUEEN

v

ZIGENG MA

Hearing: 22 July 2015

Appearances:

S McColgan for Crown
J M Hudson for Prisoner

Judgment:

22 July 2015

SENTENCING NOTES OF GILBERT J

R v MA [2015] NZHC 1694 [22 July 2015]

Introduction

[1] Zigeng Ma, you appear for sentence having pleaded guilty to 13 charges of supplying the Class B controlled drug pseudoephedrine, and having been found guilty by a jury of a further three charges of supplying pseudoephedrine and one charge of possessing pseudoephedrine for the purposes of supply.

[2] The maximum penalty for each of these offences is 14 years’ imprisonment.

The facts

[3] Mr Tran, a co-defendant, orchestrated a large-scale distribution network for ContacNT that was uncovered as a result of a major police operation known as Operation Ghost. You were part of Mr Tran’s distribution network. You agreed to distribute ContacNT for him by moving it from secure locations to wholesalers at his direction. You organised some of these transactions with regular customers on his behalf.

[4] In the period covered by the charges, namely from 22 May 2013 to

23 November 2013, you supplied 73 sets of ContacNT. At $8,000 per set, this would have generated revenue of approximately $584,000. You had possession of an additional seven sets of ContacNT for the purposes of supply. Eighty sets of ContacNT would weigh approximately 17.8 kilograms and would contain over 7.2 kilograms of pure pseudoephedrine, sufficient to manufacture between 3.6 and
5 kilograms of methamphetamine.

[5] Apart from distributing ContacNT yourself, you arranged for your brother, Ziyang Ma, to take your place during a period of absence overseas.

Pre-sentence report

[6] You are 34 years of age. You came to New Zealand with your mother and your four older siblings in 1997. You subsequently gained New Zealand citizenship but your English is poor. You have two children, aged nine and seven. You are not in a current relationship, having divorced your former wife in 2009. After you

divorced, you cared for your two children and you also took care of your elderly mother who is partly paralysed following a stroke. You told the probation officer that you became involved in this offending because you saw it as providing the opportunity to work short, flexible hours and earn a high income.

[7] You have no previous convictions and are assessed as having a low likelihood of re-offending. You acknowledged to the probation officer that you decided to become involved in drug trafficking even though you knew it was wrong. You now regret your actions and intend to live an offence-free lifestyle when you are eventually released. No particular rehabilitative needs have been identified.

Purposes and principles of sentencing

[8] In sentencing you today, I must have regard to the purposes and principles of sentencing set out in the Sentencing Act 2002. Of particular importance, is the need to deter you and others from becoming involved in the supply…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v MA

Details

AGLC: R v MA [2015] NZHC 1694
Case: [2015] NZHC 1694
Decision Date: 22 July 2015

CaseChat Overview and Summary

The case of R v MA involved the sentencing of Zigeng Ma, who had pleaded guilty to 13 charges of supplying the controlled drug pseudoephedrine and was found guilty by a jury of three additional charges of supplying pseudoephedrine and one charge of possessing pseudoephedrine for supply purposes. The maximum penalty for each offence was 14 years' imprisonment. The court had to decide the appropriate sentence for Mr. Ma, taking into account the purposes and principles of sentencing, the gravity of the offending, the degree of culpability, and the need for consistency in sentencing for comparable offences.

The court considered the starting point for sentencing based on the Court of Appeal's decision in R v Wallace and other relevant cases, ultimately deciding on a starting point of eight years' imprisonment for Mr. Ma. The court then adjusted this starting point to account for personal mitigating factors, such as Mr. Ma's agreement to forfeit over $109,000 and his subjection to restrictive bail conditions, as well as his guilty pleas. The court did not find Mr. Ma to have shown genuine remorse for his actions, as he had knowingly engaged in the offending for financial gain. The final sentence imposed was six years and six months' imprisonment, to be served concurrently.

The court did not consider it necessary to impose a minimum period of imprisonment, as the finite term was less than nine years' imprisonment, and the sentences imposed on co-offenders in similar cases were considerably longer. The final orders of the court were that Mr. Ma be sentenced to six years and six months' imprisonment on each of the charges of supplying pseudoephedrine and the charge of possessing pseudoephedrine for the purposes of supply, with these sentences to be served concurrently.

Orders