R v Wei HC Auckland CRI-2010-092-5861

[2010] NZHC 2374

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-092-5861

THE QUEEN

v

XIN WEI

Hearing:         7 December 2010

Appearances: C P Paterson for the Crown

M A Edgar for the Prisoner

Sentence:       7 December 2010

SENTENCING NOTES OF ELLIS J

Solicitors:      Crown Solicitors, PO Box 2213, Auckland 1140. Counsel:  M A Edgar, PO Box 6462, Auckland 1141

R V WEI HC AK CRI-2010-092-5861  7 December 2010

[1]      Mr Wei, you pleaded guilty to one charge of importing pseudoephedrine on

4 August 2010.  The maximum penalty for this offence is eight years imprisonment.

Facts

[2]      On  10  April  2010  Customs  Officers  at  the  Auckland  International  Mail Centre examined a package that was sent from Ireland.  This package was addressed to someone called “Edward” and was being sent to a Half Moon Bay address.   A mobile telephone number was listed as the point of contact.

[3]      Upon examination, the Customs Officer found that the package contained

1063 grams of ContacNT concealed within two hand warmers.   That amount of ContacNT contains 429 grams of pseudoephedrine, which could have been used to manufacture between 214.5 to 321.8 grams of methamphetamine, with a street value of between $214,500 and $321,800.

[4]      On 13 April 2010, a man contacted Courier Post stating that he would be present at the Half Moon Bay address on 14 April 2010 between 7 am and 9 am to collect the package.   Officers attended the address on that day. You were seen approaching a Courier Post driver, and you were intercepted by Customs Officers.  A phone call was put through to the phone number listed on the package and it became apparent that that phone was in your possession.  You were then arrested.

[5]      A  pre-committal  sentence  indication  hearing  took  place  at  the  Manukau District Court on 21 July 2010, at which time Judge Blackie indicated a starting point of three and a half years imprisonment. That, as I understand it, led to your guilty plea on 4 August 2010, after which you were remanded in custody.  You now appear for sentence before this Court, the District Court having declined jurisdiction on 25 November 2010.

[6]      The pre-sentence report says that you are 30 years old and that you were born in Mainland China.  You have a close relationship with your parents and sister, and a supportive relationship with your girlfriend Jojo. You completed a Diploma in Computer  Science  in  2004  and  gained  permanent  residency in  New  Zealand  in December 2008.  Between 2005 and 2009, you were employed as a technician and systems engineer, and then as a shop assistant. You have been unemployed since November 2009, however, and you say that it was the financial pressure of unemployment that made you accept an offer to make some easy money by picking up a parcel from “a friend” whom you had met online. You said that you did not know that the parcel contained ContacNT, but admitted to knowing that the “stuff in the parcel must be unclean”.  The pre-sentence report writer states that you showed remorse and accepted responsibility for your offending. You have no previous convictions in New Zealand.  The report recommends a sentence of home detention.

[7]      The Immigration Service has advised that you could be subject to deportation after you have served your sentence.  That is a matter over which I have no control and which has no bearing on what I am going to do today.

[8]      I have read the letter that you have written, the letter written to you by your girlfriend, Jojo, who has supported you throughout.   I have also read the letter of support from Pioneer Computer Limited.  Pioneer Computer Limited have said that they had offered you a job in August of this year, but obviously your arrest put an end to that.

[9]      From reading your letter I accept that you realise just how very stupid you have been and that you are sorry.  To some extent I accept Mr Edgar’s submission that you have been preyed upon by others and so that you are a victim too.  However what your letter does not mention, and what you need to appreciate, is just what dreadful harm methamphetamine is doing to New Zealand society, both as a whole and individual members in it.  By willingly engaging in an activity that supports the methamphetamine trade you have done a great disservice to the country that you say you love and in which you wish to remain.

[10]     Your counsel, Mr Edgar, submits that a starting point of two to two and a half years  imprisonment  is appropriate,  and  that  you  should  be  given  the  maximum discount possible for your early guilty plea, as well as for your co-operation with the authorities and the remorse you have shown.  Mr Edgar submits that a sentence of home detention is a real alternative to imprisonment and should be considered by the Court in the event that it is available.

[11]     Ms Paterson for the Crown submits that a starting point in the range of three to three and a half years imprisonment is appropriate, and that the guilty plea, while entered at the pre-committal stage, was not quite at the earliest opportunity.  She also submitted that home detention would not be an appropriate sentence in light of the seriousness of your offending.

Analysis

Purposes and Principles of Sentencing

[12]     In sentencing you for this offence I must hold you accountable for the harm you have done, promote in you a sense of responsibility, denounce your conduct, deter you and others from acting in this way, and protect the community.  I must also have  regard  to  the  gravity  of  your  offending,  including  the  degree  of  your culpability,  the  seriousness  of  your  offence,  and  the  general  desirability  of consistency with sentences in other similar cases.

[13]     There is no tariff case that specifically relates to importing pseudoephedrine, but in setting a starting point for your offending, I have had regard to the leading decision of the Court of Appeal in relation to methamphetamine offending and to the two category approach adopted in a decision of this Court that was referred to me by

counsel.[1]   In that latter case, the Court identified two categories of offenders – those

[1] R v Ho HC Auckland CRI-2005-092-567, 12 April 2005, Winkelmann J.

at the top level (that is, the masterminds, prime-movers and controllers); and those who were not masterminds, but were nevertheless crucial players without whom the enterprise could not be brought to fruition.  The range of starting points for those two categories were said in that case to be six to seven years and three to five years respectively.[2]   Counsel are agreed and I am satisfied that you fall within the second category, that is the lesser category of offending.   You were not a mastermind or instigator, but at the same time your role was far from insignificant, and a substantial amount of pseudoephedrine was involved.   I have also considered the sentences imposed in those other cases to which counsel referred me.[3]

[2] Ibid at [26].

[3] R v You HC Auckland CRI-2008-404-204, 18 September 2008, Duffy J; R v Zhai HC Auckland, CRI-2007-404-021682, 22 July 2008, Cooper J.

[14]     In my view a starting point of three years is appropriate in this instance.  I consider that such a sentence is consistent with those other decisions to which I have just referred and also gives best effect to the statutory principles and purposes that must govern my decision.  In my view, and in light of what I have already said to you about the very significant and particular harm that methamphetamine is doing in our society, the need to denounce what you have done and to deter you and others who might be inclined to do the same, assumes particular significance.

[15]     That said, I accept that there were no aggravating features in your offending (other than the premeditation that is inherent in an importation offence).  I do take into  account  what  Ms  Paterson  said  about  the  money  aspect  but  do  not  place particular weight on that.   I also accept that there are no aggravating features in relation to you personally.

[16]     In terms of mitigating features, you have expressed remorse and you pleaded guilty, thus avoiding New Zealand the cost of a trial.   I accept that you are of otherwise good character and that you are assessed as being at low risk of reoffending.   I believe, and Mr Edgar has submitted, that you have the potential to contribute to New Zealand society, if you are permitted to stay here, in the future.  In

light of those matters (and taking into account the recent decision of the Supreme Court on these issues) I consider that a discount of one year from the starting point of three years is warranted here.   That discount takes separate account of your remorse and your guilty plea in particular.

[17]     The remaining question therefore is whether home detention is appropriate. Ordinarily it would not be for offending of this type and seriousness.   But I am prepared to take account of your role in the importation as a “catcher” or facilitator rather than as the principal.   As well, there are the other matters I have already referred to.  I also note that you have spent the last four months in custody and that should also be taken into account.  In particular, in my view, that four months that you have spent in jail will have a deterrent effect that is additional to that which is inherent in a sentence of home detention.

[18]     So Mr Wei in formal and final terms I sentence you to a term of home detention for eight months.   You shall serve that sentence at 44 Shoreham Street, Avondale.   You shall go immediately to that address and await the attendance of a probation officer.  The other conditions set out in the pre-sentence report will also apply, namely:

a)       To reside at 44 Shoreham Street, Avondale, Auckland for the duration of Home Detention and not to move address without the prior written approval of a Probation Officer;

b)To undertake and complete alcohol and drug assessment and any treatment/counselling including residential, to the satisfaction of the Probation Officer and treatment provider;

c)       To participate in an assessment and complete to the satisfaction of a Probation Officer any assessments and any treatment/programme if directed by the Probation Officer;

d)Not to associate with any of your co-offender(s) unless you have the prior written consent of your Probation Officer;

e)        To abstain from consuming alcohol and illicit drugs for the duration of the Home Detention; and

f)        To  notify  your  probation  officer  prior  to  starting,  terminating  or changing your position or place of employment.

[19]     I trust you understand Mr Wei that I am treating you leniently today.  You are being given a second chance.  Do not waste it.

[20]     Please stand down.

Rebecca Ellis J