R v Wang
[2014] NZCA 409
•22 August 2014 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA882/2013 [2014] NZCA 409 |
| BETWEEN | THE QUEEN |
| AND | JIQING WANG |
| Hearing: | 12 August 2014 |
Court: | Stevens, Simon France and Mallon JJ |
Counsel: | M D Downs and Z R Hamill for Appellant |
Judgment: | 22 August 2014 at 3.00 pm |
JUDGMENT OF THE COURT
AThe application for leave to appeal is granted.
BThe appeal is allowed.
CThe sentence of four years and six months’ imprisonment is quashed and a sentence of seven years and six months’ imprisonment is substituted.
____________________________________________________________________
REASONS OF THE COURT
(Given by Stevens J)
Introduction
The respondent Mr Wang was convicted following trial by jury of possessing 11.2 kilograms of pseudoephedrine for the purpose of supply.[1] He was sentenced to four years and six months’ imprisonment by Katz J.[2]
[1]Misuse of Drugs Act 1975, s 6(1)(f).
[2]R v Wang [2013] NZHC 3259.
The Solicitor-General applies for leave to appeal against this sentence on the ground it is manifestly inadequate. The key question is whether the sentence imposed adequately took into account the reclassification of pseudoephedrine from a Class C to a Class B controlled substance.
The respondent opposes the appeal on its merits but does not oppose leave to appeal being granted.
Background
In August 2012, a shipment from China containing an oven was intercepted by Customs at Auckland Port. The oven contained 35.32 kilograms of ContacNT. This amounted to 11.2 kilograms of pseudoephedrine, with the potential to produce around 5.6–7.84 kilograms of methamphetamine, with an estimated street value of between $5.6–$7.84 million.
The oven was initially to be delivered to a central Auckland apartment. It became apparent it was too large to be delivered there. Mr Wang’s address was provided as an alternative delivery address. Thereafter, on 12 September 2012, a controlled delivery was carried out to Mr Wang’s address.
Mr Wang’s residence was searched by police and some electronic devices belonging to him were seized. These revealed extensive correspondence with a China-based friend called Lucky, whom Mr Wang had visited numerous times in jail. Lucky was involved in orchestrating the importation of the oven from China. These messages provided instructions to Mr Wang not to touch the oven, to deny knowledge of its contents, and storage advice so as to distance Mr Wang from the oven. Calendar entries in Mr Wang’s telephone related to importing and “catching” the drugs in New Zealand.
There were also references to meetings with recruiters of potential catchers, the meaning and subject of which was denied by Mr Wang at trial. Finally, there was evidence of exchanges between Mr Wang and his girlfriend, instructing her as to conducting the delivery of the oven at their apartment in a manner to avoid her interacting with the delivery agents, or making it appear as if the delivery were not linked to her. Upon delivery, Mr Wang photographed the consignment and delivered a picture to Lucky by logging into Lucky’s email account and saving the picture there, so as to avoid any direct electronic communication.
Mr Wang was convicted of possessing a Class B drug pseudoephedrine for the purpose of supply.
Sentencing
Katz J determined, on the basis of the circumstantial evidence, that Mr Wang had actual knowledge the package being delivered to him contained illegal drugs.[3] While the jury was not required to determine the question of Mr Wang’s knowledge directly in order to convict, the Judge assessed the evidence on which Mr Wang had been convicted and found he must have had actual knowledge of the drugs, and that it was likely to be a relatively significant quantity.[4]
[3]At [13].
[4]At [14].
Katz J noted the reclassification of pseudoephedrine to a Class B controlled drug and Parliament’s intention in doing so.[5] She agreed the operation was “huge”, while acknowledging that Mr Wang was neither its mastermind, nor its instigator.[6] There was no significant degree of premeditation by Mr Wang, as his address was provided as an alternative, in late stages of the delivery.
[5]At [18].
[6]At [21].
The absence of previous decisions sentencing on the basis of pseudoephedrine as a Class B substance was noted by the Judge. She considered cases involving Class C controlled drugs provided a useful guide, “at least for setting a lower limit for the sentencing range”.[7] The Judge referred to a number of authorities starting first with R v Wallace, which dealt with methamphetamine during the period it was a Class B drug.[8]She referred to R v Xie in which this Court noted R v Fatu may be relevant to pseudoephedrine offending, given its relationship as precursor substance to methamphetamine.[9]
[7]At [22].
[8]R v Wallace [1999] 3 NZLR 159 (CA).
[9]R v Xie [2007] 2 NZLR 240 (CA) referring to R v Fatu [2006] 2 NZLR 72 (CA).
The Judge acknowledged it was difficult to assess clearly where Mr Wang’s offending sat on the spectrum. The Crown sought a starting point of 10–11 years’ imprisonment, which she considered too high. The defence contended a starting point of three to four years would be appropriate, which Katz J considered to be too low. The Judge said:[10]
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.
[10]At [34].
Katz J concluded the correct starting point ought to be five years and six months’ imprisonment. She allowed a discount of one year for mitigating factors personal to Mr Wang, namely his previously unblemished record.[11] The end sentence imposed was four years and six months’ imprisonment.[12]
Submissions
[11]At [37].
[12]At [38].
For the Solicitor-General Mr Downs contends this sentence was manifestly inadequate. He submits the Judge, after assessing Mr Wang’s role in the offending, failed to place sufficient weight on the reclassification of pseudoephedrine from a Class C controlled drug to a Class B controlled drug. This led to the Judge adopting a starting point outside the available range. By applying the existing guideline judgment, R v Wallace, an appropriate starting point should not have been below eight years’ imprisonment.
Here, it is said the Judge was too heavily influenced by cases involving Class C controlled drugs. For example in Tran v R, the defendant was acquitted of importation, but found guilty of possession for supply of 37 kilograms of pseudoephedrine.[13] The consignment was delivered to his address. The Court noted that if the defendant had been convicted of importing as well, he would have faced a starting point of 10 years’ imprisonment. The sentencing Judge considered that to be an appropriate starting point for mastermind offending. On appeal, this Court noted the defendant had been “fortunate” to receive a starting point of five and a half years’ imprisonment and not higher.[14]
[13]Tran v R [2010] NZCA 349.
[14]At [22]–[23].
In Lin v R the defendant provided addresses for two shipments of pseudoephedrine, containing a total of six kilograms.[15] He handed the packages onto a co-offender. This Court rejected an appeal against a starting point of four years. This was due to the fact the principal offender had received an inadequate starting point, which had a consequential effect on the starting point of the defendant in question.
[15]Lin v R [2010] NZCA 141 at [23].
With reference to these authorities Mr Downs emphasises that even for Class C controlled drugs, starting points between four and five and a half years’ imprisonment for offending involving large commercial amounts of pseudoephedrine were seen as lenient.
Mr Downs emphasises in R v Wallace this Court established the bands for offending in Class B controlled drugs.[16] The most serious band, involving commercial activity on a major scale, attracts eight to 14 years’ imprisonment. Commercial manufacture or importation on a lesser, albeit still substantial scale but not involving massive quantities of drugs would call for a range of five to eight years’ imprisonment. The Crown argues this case lies within the most serious band identified in R v Wallace.
[16]R v Wallace, above n 8, at [30].
Finally, Mr Downs submits the Judge erred by allowing a 12 month discount for previous good character. Appellate authority suggests no such discount was called for. At most a discount of six months should have been applied.
For the respondent Mr Dacre QC supports the reasoning of Katz J both in terms of the starting point of five years and six months’ imprisonment and the allowance of a discount for previous good character. Mr Dacre stresses that Mr Wang was sentenced not for any part in the importation of the pseudoephedrine but rather for being in possession of the pseudoephedrine for the purpose of supply. He accepts that there was extensive contact with the associate Lucky who clearly played a central role in the importation. But Mr Wang’s role was “relatively minor” in that he was asked to store the drugs at his address. His role was more in the nature of a lower-level catcher. At most Mr Wang was to be a temporary custodian of the drugs.
Analysis
Starting point
The decision of this Court in R v Wallace is the leading Class B drug offending.[17] It is convenient to set out the three categories of offending identified:
[30] The cases reflect a considerable range in the seriousness of offending. They show that for commercial activity on a major scale the starting point before any allowance for mitigating factors for the principal offender will be in excess of eight years and in the very bad cases up to 14 years, especially where repeat offending is involved. For major offending of this kind there will likely be numerous separate offences so that the 14-year maximum penalty will have little direct relevance to the total offending.
[31] Commercial manufacture or importation on a substantial scale reflecting sophistication and organisation with operations extending over a period of time though not involving massive quantities of drugs or prolonged dealing calls for a starting point in the range of five to eight years.
[32] For smaller operations, but representing commercial dealing, starting points of up to five years are appropriate. This necessarily must be a broad category to enable sentences to reflect the many varied circumstances that can arise.
[17]R v Wallace, above n 8.
Plainly circumstances will vary from case to case and there is a need for flexibility in the application of these sentencing guidelines.[18] This is particularly so where the bands are expressed with epithet-based descriptors rather than quantities as in R v Fatu. Quite apart from the nature and size of the transaction, the role of the offender will be an important consideration.[19] In the context of Class B controlled drugs this Court said in R v Wallace, on the topic of roles:[20]
There is little difference to be drawn between manufacturers and importers. Both introduce the drug to the market. Their interdependence with wholesale distributors means that the true instigator might fill any of these roles or indeed might stand remote simply manipulating others. 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 sentence.
[18]The application of flexibility might well be required in cases which, because of the scale of the commercial activity involved, only just fall within the eight to 14 year band. Conceivably a lower-level participant might warrant a sentence below the eight year mark.
[19]R v Fatu, above n 9, at [34]–[36], in which the Court notes “the more significant the role of the offender in the importation, the closer would be the appropriate sentence to the top of the relevant sentencing band for the imported volume”.
[20]At [25].
With respect to the circumstances in the present case, the following are the key features:
(a)Mr Wang had considerable interaction with his associate Lucky who had already been convicted for pseudoephedrine offending. The Judge referred to Mr Wang visiting his friend in prison some 17 times and Lucky being a crucial player in the importation.
(b)Mr Wang took steps to conceal his involvement including instructing his girlfriend how to assist in the delivery and uploading photographs onto Lucky’s email account once delivery had been made.
(c)There was a calendar entry in Mr Wang’s telephone marking the date of the export leaving China, together with instructions on how to “catch” the delivery.
(d)Mr Wang had contact with a recruiter of “catchers”, a Mr Bo Zi, as well as regular contact with the associate who was a crucial player in the importation.
(e)With respect to Mr Wang’s role the Judge found that he was acting at more than the lowest level of catchers.
We are satisfied that the Judge, although acknowledging the change, failed to place sufficient weight on the reclassification of pseudoephedrine from a Class C controlled drug to a Class B controlled drug. As a consequence the starting point of five years and six months’ imprisonment was well below the available range. We consider that the circumstances in the present case fell clearly within the band of serious offending in R v Wallace concerning commercial activity on a major scale. That created a range of between eight and 14 years’ imprisonment. We have no doubt that a prime mover or major player would have attracted a starting point of around 12 years’ imprisonment.
Having regard to the role played by Mr Wang we agree with the submissions for the Solicitor-General that a starting point of eight years was the lowest available. Mr Wang was the means by which the importation of the oven could be completed, and the contents of it (the pseudoephedrine) stored and held ready to be passed on to the highest level of distributors. Mr Wang thus played a crucial role in introducing a huge amount of the Class B controlled drug to market.
We have tested this conclusion by considering the sentences imposed for not dissimilar conduct in relation to Class C offending. The observations of this Court in Tran and Lin indicate that, even for a Class C controlled drug, starting points from four to five and a half years’ imprisonment for offending involving large commercial amounts of pseudoephedrine were lenient. That said, Judges sentencing in cases of the Class B controlled drug pseudoephedrine ought to apply the guidelines in R v Wallace rather than focus on sentences for Class C drugs.
It follows that we conclude that the starting point of five and a half years’ imprisonment imposed by the Judge was manifestly inadequate. A starting point of eight years’ imprisonment should have been adopted.
With respect to the discount of one year for Mr Wang’s previous good character, we are satisfied that this was contrary to principle. There is clear authority in this Court that previous good character can hold little weight in relation to drug offending of this kind.[21] This Court in R v Wallace said:[22]
Personal circumstances are relegated in importance to the need to deter dealing in drugs with their potential harm to the vulnerable. In this context dealing by addicts warrants no different response from dealing out of greed or otherwise motivated.
[21]R v Anslow CA182/05, 18 November 2005 at [30]; R v Aram [2007] NZCA 328 at [78].
[22]At [25].
We conclude that the Judge erred in allowing a discount of one year for good character. We consider that no discount could have been given. However Mr Downs responsibly accepted that as a discount had been allowed by the sentencing Judge it was appropriate on appeal to make a small allowance but the reduction should be no more than six months. We agree.
Result
The Solicitor-General’s application for leave to appeal is granted. The appeal is allowed.
The sentence of four years and six months’ imprisonment is quashed and a sentence of seven years and six months’ imprisonment is substituted.
Solicitors:
Crown Law Office, Wellington for Appellant
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