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 of pseudoephedrine which is used in the manufacture of methamphetamine, an extremely destructive drug that causes enormous harm in our community.  The sentence must be sufficient to denounce your conduct and hold you accountable for the harm you have caused.  I must have regard to the gravity of your offending, the degree of your culpability and the need to impose a sentence that is, as far as possible, consistent with sentences imposed on others for comparable offending.   I am required to impose the least restrictive outcome appropriate in the circumstances.

Starting point

[9]      Although    there    is    no    tariff    case    for    drug    offending    involving

pseudoephedrine, the Court of Appeal’s decision in R v Wallace is of assistance.1

This decision was recently affirmed by the Court of Appeal in R v Wang as the leading case on offending in relation to Class B drugs.2

[10]     In R v Wallace, the Court of Appeal stated that principal offenders involved in

Class B drug offending on a major commercial scale should expect a starting point of

1      R v Wallace [1999] 3 NZLR 159 (CA).

2      R v Wang [2014] NZCA 409 at [21].

between eight and 14 years’ imprisonment.  The Crown submits that your offending falls into this category and that a starting point in this range is required.   Having regard to the Court of Appeal’s decision in R v Wang, this Court’s decision in R v Li3 and the sentences imposed on other offenders involved in Operation Ghost,4  the Crown submits that the appropriate starting point in your case would be in the

vicinity of nine years’ imprisonment.

[11]     Mr Hudson submits that your offending is most comparable to that in R v Li in which a starting point of seven and a half years’ imprisonment was adopted.  On that basis, he contends that the appropriate starting point is in the vicinity of seven years’ imprisonment.

[12]     Your brother, Ziyang Ma, was sentenced on the basis that he supplied at least

229   sets   of   ContacNT   weighing   51   kilograms   containing   approximately

20.6 kilograms of pure pseudoephedrine.  He distributed this ContacNT for Mr Tran and another dealer, Mr Zhang.  Venning J adopted a starting point of 12 and a half years’ imprisonment in his case.

[13]     Your  offending  involved  the  supply  of  approximately  one-third  of  the ContacNT supplied by your brother.  A significantly lower starting point is required to reflect the lesser scale of your offending compared to that of your brother.  Taking all matters into account, I consider that the appropriate starting point in your case is eight years’ imprisonment.

Personal factors

[14]     Mr Hudson submits that the starting point should be adjusted to take account of remorse and previous good character, the fact that you agreed to forfeit in excess of $109,000, the fact that you were subject to restrictive bail conditions while awaiting trial and for your guilty pleas.

[15]     I do not accept that you have shown genuine remorse. You made a calculated decision to become involved in this offending, knowing that it was wrong.   The

3      R v Li [2014] NZHC 2610.

4      R v Tarm [2015] NZHC 930; R v Lee & Ma [2015] NZHC 976.

Crown had a very strong case against you, largely based on surveillance evidence and intercepted telephone and text communications.   You pleaded guilty to those charges where the evidence was overwhelmingly strong and contested the rest.

[16]   Your agreement to forfeit assets was part of a settlement of forfeiture proceedings initiated by the Commissioner of Police under the Criminal Proceeds (Recovery) Act 2009, not something you volunteered.  I do not allow any deduction for this.

[17]     You have no prior convictions but any discount for this must be moderate. Your offending cannot be viewed as a one-off aberration and wholly out of character. Your offending continued over a period of at least six months and was seen by you as offering the advantages of short, flexible working hours and high remuneration. Further,  the  Court  of Appeal  has  made  it  clear  that  personal  circumstances  are relegated in importance in the sentencing process because of the need to deter people from dealing in drugs.

[18]     I take into account that you were subject to restrictive bail conditions.   You were initially subject to a 24 hour curfew from 6 December 2013.   However, on

18 December 2013 this was varied to allow you to leave your home between 7.00 am and 7.00 pm on Sundays.  The bail conditions were further relaxed on 30 September

2014 so that the curfew applied only between the hours of 8.00 pm and 7.00 am.

[19]     I consider that a discount of nine months’ imprisonment is appropriate to take

account of personal mitigating factors.

Guilty plea

[20]     Having regard to the strength of the Crown case and the lateness of your guilty pleas, I consider that the discount for your guilty pleas must be modest.  Your brother, Ziyang Ma, received a discount of 15 per cent for his guilty pleas but this resolved all charges against him, avoiding the need for him to be tried.  I consider that you are not entitled to the same level of discount because you proceeded to trial to test the Crown’s case on the remaining charges.   In my view, the appropriate

discount for your guilty pleas in the circumstances is 10 per cent which equates to

nine months’ imprisonment.

[21]     With   these  adjustments,   the  end   sentence  is   six   years,  six   months’

imprisonment.

Minimum period of imprisonment

[22]    I do not consider that it is necessary to impose a minimum period of imprisonment in your case.  Although minimum periods of imprisonment were imposed on some of your co-offenders, the sentences imposed in those cases were considerably longer.   As the Court of Appeal observed in R v Anslow, minimum periods of imprisonment are seldom imposed where the finite term is less than nine years’ imprisonment.5

Sentence

[23]     Mr Ma, please stand.  On each of the charges of supplying pseudoephedrine and the charge of possessing pseudoephedrine for the purposes of supply, you are sentenced to six years and six months’ imprisonment.   These sentences are to be

served concurrently.

M A Gilbert J

5      R v Anslow CA182/05, 18 November 2005.