R v Wang

[2007] NZCA 226

IN THE COURT OF APPEAL OF NEW ZEALAND

CA477/06
[2007] NZCA 226

THE QUEEN

v

NANYIN WANG

Hearing:23 May 2007

Court:Wilson, Williams and Rodney Hansen JJ

Counsel:H E Juran for Appellant

A Markham for Crown

Judgment:5 June 2007 at 12 pm

JUDGMENT OF THE COURT

A        THE APPEAL AGAINST CONVICTION WAS ABANDONED.

B        The appeal against sentence is dismissed.

REASONS OF THE COURT

(Given by Rodney Hansen J)

Introduction

[1]       The appellant was convicted following trial before Judge R Wade and a jury in the Manukau District Court of one count of importing a Class C controlled drug, pseudoephedrine, and one count of conspiracy to import pseudoephedrine.  He was sentenced to three years imprisonment.  He appealed against conviction and sentence but abandoned his appeal against conviction.

Background facts

[2]       The appellant is a Chinese national who was studying English in New Zealand at the time of the offending.  In November 2005 he travelled to China, returning to New Zealand on 4 December.  Acting on intelligence received, customs officers stopped and searched him at Auckland airport.  Although no drugs were found, the appellant was in possession of a receipt issued by customs authorities in Beijing indicating that “medication” had been taken from him and was being held by the Chinese authorities.

[3]       The appellant was interviewed by customs officers and subsequently by the police.  He admitted attempting to leave Beijing airport with approximately 500 packets (5,000 capsules) of Contac NT capsules strapped to his body.  Contac NT is a pseudoephedrine-based cold and flu medication legally available in China, which is sold on the illicit drug market in New Zealand for manufacture into methamphetamine.  The appellant said he was offered $10,000 to bring the drugs to New Zealand by a man he met at the Auckland Casino.

[4]       The appellant also admitted travelling to China in March and again in April 2005 with another student, Yuanzheng Yu (or “Harry”).  The appellant said that on the first trip Harry strapped about 300 packets of Contac NT capsules to his body and tried to persuade him to do the same.  He declined to do so.  The appellant was acquitted of conspiring with Harry to import the pseudoephedrine into New Zealand.

[5]       When the appellant and Harry again travelled to China in April, the appellant agreed to bring 200 packets (2,000 capsules) of Contac NT to New Zealand strapped to his body.  Harry promised to pay him $10,000.  The appellant brought the drugs into New Zealand undetected by the authorities.

[6]       At trial the appellant sought to disavow his admissions, claiming they were the result of coercion by customs and the police.  He was found guilty of importing pseudoephedrine on or about 5 May 2005 and of conspiring to import pseudoephedrine in November-December.

[7]       The Crown evidence was that each capsule of Contac NT contains 90 milligrams of pseudoephedrine.  The total amount involved in the two counts is 630 grams, which would sell for between $28,000 and $49,000 in New Zealand.  That quantity of pseudoephedrine has a potential yield of 315-472.5 grams of pure methamphetamine.  A gram of pure methamphetamine has a street value of up to $1,000.

Sentencing decision

[8]       In his sentencing remarks, Judge Wade noted that the appellant was 23 years of age.  He had a good upbringing in China, had received a good education and was a person of previous good character.  As an overstayer, he would be deported to China once his sentence had been served.

[9]       The Judge said the offending came within Category 2 in relation to Class C importations, as discussed in R v Ho HC AK CRI 2005-092-000567 12 April 2005.  Category 2 covers crucial players without whom the enterprise could not be brought to fruition, but who are not the instigators, masterminds, prime movers or controllers.  The starting point for Category 2 offences suggested by Ho is 3 – 5  years.  The Judge adopted a starting point of three years and six months.  He took into account as aggravating features the premeditation and the repetition involved in the offending.  He reduced the sentence by six months to take into account the appellant’s previous good character and his relative youth.

Submissions

[10]     Mr Juran accepted that the Judge had correctly categorised the offending as Category 2 but submitted that the starting point he adopted was too high.  He took issue with the aggravating factors identified by the Judge.  He submitted that the Judge had given the appellant insufficient credit for his decision not to continue with the importation after the Chinese authorities had found the drugs at Beijing airport.  He said the drugs had not been confiscated.  The appellant could have elected to continue but had chosen to voluntarily withdraw from the offending.  Mr Juran argued that the starting point for sentence should have been fixed on the basis that only 2,000 capsules had been imported.  He said the starting point should not have been as high as the three and a half years upheld in R v Zheng CA435/05 18 September 2006, where 4,000 capsules had been imported.

[11]     Ms Markham submitted that the starting point of three and a half years adopted by the sentencing Judge is entirely consistent with recent sentencing levels and decisions.  The offending was premeditated, repeated and motivated by profit.  She submitted that the Judge rightly identified deterrence and denunciation as important sentencing objectives having regard, in particular, to evidence at the trial of a recent trend of methamphetamine manufacturers recruiting Asian students to import pseudoephedrine-based products.  Ms Markham argued that whether the appellant “chose” to hand over the capsules discovered in Beijing or, as he originally told police, they were “forfeited”, it is plain that, were it not for the intervention of the Beijing authorities, he would have attempted to import the drug.  She submitted there is no justification for any discount in such circumstances.

Discussion

[12]     We are satisfied that the starting point adopted by the Judge was within the available range and the final sentence appropriately reflected aggravating and mitigating factors.  In our view, the Judge was right to characterise the offending as premeditated and repeated.  The appellant would have completed the second importation were it not for the intervention of the authorities in Beijing.  His culpability is appropriately to be assessed on the basis of both consignments and a total quantity of 7,000 capsules while making some allowance in the appellant’s favour for the fact that only 2,000 capsules were actually imported.  The starting point adopted by the Judge is consistent with cases such as Zheng and the decision of this Court in R v Qiu CA202/06 17 October 2006 where a starting point of five years imprisonment was upheld for the importation of the equivalent of 20,528 Contac NT capsules. 

Result

[13]     For these reasons, the appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent