R v Wang
[2013] NZHC 3259
•5 December 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-004-015546 [2013] NZHC 3259
THE QUEEN
v
JIQING WANG
Hearing: 14 - 18 October 2013
Counsel: M R Harborow for Crown
P E Dacre QC for Prisoner
Sentence: 5 December 2013
SENTENCING NOTES OF KATZ J
Solicitors: Meredith Connell, Office of the Crown Solicitor, Auckland
Counsel: P E Dacre, Auckland
R v WANG [2013] NZHC 3259 [5 December 2013]
Introduction
[1] Jiqing Wang, on 18 October 2013, following a five-day trial you were found guilty by a jury of the possession of the Class B controlled drug pseudoephedrine for the purposes of supply. That is an offence under the Misuse of Drugs Act carrying a maximum penalty of 14 years’ imprisonment.
[2] Many of the background facts are not in dispute. In August 2012, a consignment arrived at Auckland Port, having been loaded in Guangzhou, China. That consignment was a pizza oven containing 35.32 kilograms of ContacNT granules hidden within it. ContacNT is a common cold and flu medication available in China. It contains a high percentage of pseudoephedrine, a precursor drug for the manufacture of methamphetamine.
[3] The pizza oven was too large to be delivered to the apartment given as the original delivery address. Your address in Newton was provided as an alternative delivery address. On 12 September 2012, Customs Officers conducted a controlled delivery of the pizza oven to your address. Most of the ContacNT had been removed and replaced by a placebo, although approximately 100 grams of pseudoephedrine remained in the oven. That evening, Police executed a search warrant at your address and took you in for questioning.
Knowledge
[4] The key issue at trial was whether you knew that there were drugs in the pizza oven. The Crown case was that you either had actual knowledge of the contents of the package delivered to your address or that you were wilfully blind as to its contents. Your case was that your friend, Lucky Wang, asked you to store luggage for a friend of his who was returning to China and that you genuinely believed that was all the package was.
[5] The jury’s verdict clearly indicates that they rejected your version of events and concluded that you either had actual knowledge of the contents of the package or were wilfully blind as to its contents. It is not possible to know which of those two options the jury believed, as either would be sufficient for them to find you guilty.
[6] The Crown says that I should sentence you on the basis that you had actual knowledge of the contents of the package. Mr Dacre QC says on the other hand, that I should conclude that you were “wilfully blind” as to the contents of the package. I am not sure that a lot turns on the issue in terms of the appropriate sentence, on the particular facts of this case, but it is appropriate that I make a finding on the issue for sentencing purposes.
[7] There was no “smoking gun” in this case. Rather the Crown’s case was based on circumstantial evidence. Taken together, however, all those strands of circumstantial evidence clearly point, in my view, to the conclusion that you had actual knowledge of the contents of the package.
[8] Firstly, there was considerable focus at trial on the role of Lucky Wang, who was a friend and former work colleague of yours. He was closely involved, from the China end, in the importation of the ContacNT into New Zealand. Lucky was your point of contact in relation to the delivery. Your communications with him were, at least in part, by way of “WeChat” messages which were found on your mobile phone when you were arrested. Lucky gave you various instructions regarding the package. These included instructions not to touch the package and to deny any knowledge of it or its contents if asked. He also suggested that the package should be placed in such a way that it effectively straddled your car park and the neighbouring car park and sought information from you in order to try and arrange this. This was presumably to further reduce any risk of the package being associated with you.
[9] A further strand of circumstantial evidence relates to the fairly detailed message found stored on your phone as part of a calendar entry. That message, when read as a whole, clearly relates to the importation of drugs, although I note you have not been charged or convicted of importation. More particularly, however, the calendar entry message relates to the “catching” of drugs at the New Zealand end of the importation process. Bo Zi was referred to as a person who appears to have been requested to recruit or organise catchers. You acknowledged in evidence that you had met Bo Zi at Lucky’s request, although you denied that your meeting was anything to do with drugs. I accept the Crown submission, however, that there were
a number of similarities between the words used in the calendar entry and the later
WeChat messages from Lucky to you.
[10] In addition, the very strange instructions you gave to your girlfriend via WeChat in relation to the delivery of the package are not consistent with your claim to lack of actual knowledge. For example, when two men came to collect the remote control for your garage from the mailbox, you gave your girlfriend various instructions as to how to let them through the locked gate of your block of flats without actually interacting with them. For example, you suggested she open the gate and “pretend” to wander around, or that she go to the shops and incidentally open the gate and let them through on her way past. These are not the sort of instructions you would give your girlfriend if you believed a friend of a friend was dropping by to arrange for delivery of some luggage which you had agreed to store. It was clear that you did not want your girlfriend to engage in any way with the people who were delivering the package. Indeed at one stage you told her to remain in the flat and not to answer the door if anyone knocked.
[11] A further strand of circumstantial evidence is your behaviour after work on the evening the package was delivered. You went to some lengths to ensure that neither you nor your girlfriend had any direct interaction with the people who were delivering the package. Again, this is not consistent with an honest belief that what was being delivered was luggage. Further, after the package had been delivered, you took a photo of it, logged into Lucky’s email account using his login details (thereby avoiding having to send him an email message) and placed the photo of the package in his drafts folder for him to review. This was all done at Lucky’s request and under circumstances of apparent urgency.
[12] The evidence also established that you received six phone calls from Lucky’s phone number during the time when you were being interviewed by Detective Zhang on the evening of the delivery. You were, however, reluctant to answer those calls in the presence of a police officer and were unwilling to engage in conversation when you did finally answer a call, after the formal interview had concluded.
[13] None of these factors would, on its own, establish that you knew what was in the package. Taken together, however, they lead, in my view, to a clear inference that you knew full well that the package being delivered to you contained illegal drugs.
[14] Mr Dacre submitted that there is no evidence that you knew the precise amount of drugs in the package. I accept that submission, although in my view you must have realised that the quantity was likely to be relatively significant, given the size of the package and the fact that it had been too large to be delivered to the original address.
[15] If I had concluded you were only wilfully blind, then your culpability for sentencing purposes would likely have been slightly lower. However, any difference would be fairly marginal in my view, on the facts of this particular case.
Purpose and principles
[16] The Sentencing Act 2002 sets out a number of purposes and principles for me to take account of in sentencing you today.1 Deterrence is at the top of that list. Numerous cases have emphasised the extremely harmful and highly addictive nature of methamphetamine and its devastating effect on our community. Pseudoephedrine is one of the key pre-cursor substances in the manufacture of methamphetamine.
[17] In addition, the sentence I impose on you must hold you accountable for the harm your conduct could have inflicted on the community, instil in you a sense of responsibility for what you have done, and to denounce such conduct. The sentence I impose will of course take into account your degree of culpability and, where possible, be consistent with other sentences imposed for similar offending.
Starting point
Assessing culpability
[18] The recent re-classification of pseudoephedrine from a Class C to a Class B
drug, with the maximum penalty for this offending increasing from 8 to 14 years’
1 Sentencing Act 2002, ss 7 and 8.
imprisonment is a clear message from Parliament as to the seriousness of this type of offending. While you may have been at the bottom end of the chain of offending, you played an important role in the potential distribution of a very significant amount of pseudoephedrine.
[19] The supply of drugs to end users involves a wide range of people along the supply chain, all with different roles and different levels of culpability. The case law generally recognises three categories of drug offenders, ranging from instigators and masterminds2 at the top end, to people who are a link in the chain of offending, but who are not a crucial player and whose involvement is not of critical importance, at the lower end.3 You fall into the latter category. You were not an instigator or mastermind, but nevertheless without people like you who are willing to assume the significant risk of “catching” large importations of pseudoephedrine, the supply lines for the manufacture of methamphetamine would dry up.
[20] Another factor that is relevant to your culpability is the sheer scale of the offending. The pizza oven contained 35.32 kilograms of ContacNT, consisting of
11.2 kilograms of pseudoephedrine. That is a huge importation. It is estimated that such a quantity could have been used to make between 5.6 kilograms and 7.84 kilograms of methamphetamine, with a street value of between $5.6 million and
$7.84 million. The seriousness of your offending is to be measured by the total quantity intended to be delivered to you and I therefore disregard that some of it was replaced with a placebo prior to the controlled delivery.4
[21] The Crown submits that this case also involved a high level of planning and pre-meditation, as evidenced by the numerous visits you made to Mr Wang in prison. While obviously the importation of the pseudoephedrine involves a high level of planning, in my view your particular offending did not involve significant pre- meditation, as your address was only provided as a substitute delivery address at the
last minute, because the original address turned out to be impractical.
2 R v Wallace [1999] 3 NZLR 159 (CA) at [25](4); R v Wickremasinghe HC Auckland T013408,
28 March 2003 at [20].
3 Tilialo-Staples v Police [2013] NZHC 1255 at [18].
4 R v Gray CA209/91, 14 April 1992 at 3.
Authorities
[22] Both Crown counsel and your lawyer have referred to a number of authorities. Many of these deal with sentencing levels of pseudoephedrine as a Class C drug. I accept that, given the paucity of sentencing decisions following the re- classification of the drug as Class B, these serve as a useful guide, at least for setting a lower limit for the sentencing range. However, the re-classification of the drug as a Class B drug and the associated increase in maximum penalty must be kept in mind.
[23] The Crown referred to the decision of R v Wallace and Christie5 which involved methamphetamine offending, at the time it was classified as a Class B drug. The Court of Appeal made a number of observations regarding sentencing for Class B drug offending in that case, some of which are relevant to this case.6 In particular the Court noted that relevant matters may include market or street value (although this must be treated with caution). Instigators, masterminds, prime movers or controllers are at the top level and when convicted must attract sentences at the upper end of the relevant range. Participants in distribution at lower levels should be dealt
with proportionately to their culpability as assessed by the sentencer.
[24] In terms of sentencing bands for Class B offending, the Court of Appeal in R v Wallace and Christie set out three bands: 8 to 14 years for commercial activity on a major scale; 5 to 8 years for commercial manufacture or importation reflecting some sophistication but not involving massive quantities; and up to 5 years for smaller commercial operations.
[25] The Crown also referred to R v Xie7 where the Court of Appeal observed that the R v Fatu8 guidelines for methamphetamine offending, adjusted to reflect the lesser maximum penalty, may be of some assistance in sentencing for pseudoephedrine offending, given that pseudoephedrine is a precursor substance for
methamphetamine manufacture. R v Xie was an importation case rather than a
possession for supply case.
5 R v Christie and Wallace (1999) 16 CRNZ 443 (CA).
6 At [25].
7 R v Xie [2007] 2 NZLR 240 (CA).
8 R v Fatu [2006] 2 NZLR 72 (CA).
[26] Counsel also referred to the case of Tran v R.9 This was a case decided when pseudoephedrine was still a Class C drug. The total quantity of ContacNT in that case was 45.76 kilograms, containing 37 kilograms of pseudoephedrine. It had a potential yield of 7.5-11.2 kilograms of methamphetamine. Mr Tran and Ms Yu faced importation and possession for supply charges. Ms Yu pleaded guilty following a sentencing indication. The Judge had commented that the mastermind of this offending would be looking at a starting point of 10 years, but that Ms Yu was not the mastermind and so adopted a starting point for the importation and possession of seven years. Mr Tran went to trial and was acquitted on the importation count. He received the considerable benefit of an acquittal on that count and a starting point of five years and six months was taken. The Court of Appeal commented he should “count himself fortunate that the starting point was not
higher”.10
[27] The Crown suggested that your offending is broadly analogous to that of Mr Tran. However, I accept Mr Dacre’s submission that Mr Tran’s culpability is somewhat greater than yours.
[28] Mr Dacre relied on the decision of R v Loh.11 There, Mr Loh was offered
$200 to receive a package at his address. He was unaware of the contents, but knew they were most likely illegal. The package contained 2.21 kilograms of ContacNT granules, which had a potential yield of 669 grams of methamphetamine, worth approximately $223,000 - $669,000. A starting point of three years’ imprisonment was adopted. The scale of Mr Loh’s offending is, however, much less than in your case.
[29] There is also the Court of Appeal decision of Lin v R.12 Mr Lin was convicted as part of a wider ContacNT importation ring. His role was limited to providing two consignment addresses and handing the substance on to a co-defendant higher in the chain. The total quantity of ContacNT connected to
Mr Lin was 15 kilograms (or 6 kilograms of pseudoephedrine) with a potential yield
9 Tran v R [2010] NZCA 349.
10 At [23].
11 R v Loh HCAuckland CRI-2008-004-25021, 29 November 2010.
12 Lin v R [2010] NZCA 141.
of 3-4.5 kilograms of methamphetamine. A starting point of four years was upheld on appeal. I note, however, that pseudoephedrine was classified as a Class C drug at the time. The same fact scenario would now therefore result in a higher starting point.
[30] In Tilialo-Staples v Police13 the appellant had been persuaded to accept possession of a machine containing 21.9 kilograms of pseudoephedrine. His role could not be said to be of prime importance. It had been surmised that if one of the organisers had not persuaded the appellant to accept possession of the machine for a short time, he would have found someone else who would have done so. The appellant also would not have known what sort of drug was present and the quantity in the machine. The possession period was short, some 6 hours at his parents’ home, and the reward was a comparatively modest $500. In that case, a starting point of six years’ imprisonment was reduced on appeal to four years.
[31] There are similarities between your and Mr Tilialo-Staples’ offending, but I consider you to be more culpable. Mr Tilialo-Staples was an offender on the absolute lowest rung of the ladder. He knew little about the offending. I have found that you, however, knew what you were doing. I also believe that you knew the gravity of it and the potential consequences, having visited Lucky Wang in prison on
17 occasions. You took a calculated risk that you would not be caught. In addition, the quantity of pseudoephedrine involved was significantly greater in your case.
[32] It is not easy to assess exactly where your offending sits on the spectrum. While the scale of your offending sits in the upper region of the Wallace and Christie bands, your own level of involvement was at the lower end of the range. Although your culpability, in my view, is more than that of the lowest level of catchers. Your level of knowledge and involvement was somewhat greater than that.
[33] The Crown and the defence are very far apart as to the appropriate starting point. Mr Harborow submits I should take a starting point of 10-11 years’ imprisonment, which in my view is too high. Mr Dacre submits I should take a
starting point of 3-4 years’ imprisonment which in my view is on the low side.
13 Tilialo-Staples v Police [2013] NZHC 1255.
[34] The starting point suggested by the Crown is driven to a significant extent by the very large quantity of drugs involved in this case. However, in my view, while quantity is an important factor, the primary factor that should drive the starting point for your sentence is your personal level of involvement and culpability. This turns on your own participation and your level of knowledge. That then needs to be adjusted to take into account that there was a very large quantity of drugs involved in this case. Even when very large quantities are involved there will obviously be different levels of culpability, ranging from the mastermind to the lower level offenders.
[35] After careful consideration, and taking into account the authorities I have outlined and my conclusions as to your level of your culpability, I have concluded that a starting point of five years and six months imprisonment is appropriate.
Adjusting the starting point
[36] Mr Wang, having read your pre-sentence report, it is hard to understand why you got involved in this sort of illegal activity. You are 27 years old. You came to New Zealand from China in 2009 on a Working Holiday visa. You have since applied for permanent residence and indeed had an interview with the Immigration Department at about the time of your offending. You were a good student at school. You have been employed as a chef for the past two years, and your employer has spoken highly of your work ethic. You appear to have an unblemished record. You do not have any issues with drugs or alcohol. I can only assume that your offending was motivated by some form of financial gain. There are no personal aggravating features that would justify any uplift in your sentence.
[37] In terms of mitigating factors I note that you have no previous criminal history and are of previous good character. You continue to maintain your innocence, so I will not be giving you any discount for remorse. But for redeeming personal qualities I am prepared to give you a one year discount on your sentence. That is, in my view, a generous discount, given that minimal discount is usually given for personal factors when sentencing for drug offending. I am conscious, however, not to impose a sentence on you that will be crushing, given that you are a first time offender of otherwise good character. It appears that, for whatever reason,
you fell in with the wrong crowd. That has led to you being here today. Lucky Wang, who you met through a previous job, appears to have been an extremely negative influence in your life and was instrumental in your offending. You have paid a very high price for that offending and appropriately so. In addition to a lengthy term of imprisonment you will no doubt be deported from New Zealand on the conclusion of your sentence. Your dream of a long term future for you and your girlfriend in New Zealand is now at an end.
[38] The Crown seeks the imposition of a minimum term of imprisonment under s 86 of the Sentencing Act. I do not consider that such an order is necessary in this particular case.
Sentence
[39] Mr Wang, please stand. On the charge of possession of pseudoephedrine for the purposes of supply, I sentence you to 4 years 6 months imprisonment.
[40] You may stand down.
Katz J
3
0