R v Wu
[2015] NZHC 1733
•28 July 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-092-11602 [2015] NZHC 1733
THE QUEEN
v
ZHI FENG WU
Hearing: 28 July 2015 Counsel:
ZR Johnston
PE Dacre QC for defendantJudgment:
28 July 2015
SENTENCING NOTES OF FAIRE J
Solicitors: Meredith Connell, Auckland
To: PE Dacre QC, Auckland
R v Wu [2015] NZHC 1733 [28 July 2015]
Contents
Introduction ............................................................................................................[1] Facts .......................................................................................................................[3] Purposes and Principles of Sentencing (ss 7 and 8 of the Sentencing Act 2002) ..[8] Sentencing approach ............................................................................................[10] Submissions for the Crown .................................................................................. [11] Submissions for the defendant .............................................................................[13]
Starting point ..............................................................................................................
Aggravating factors relevant to the offending (s 9 Sentencing Act 2002) [15] Relevant Cases [16] Setting the starting point [22]
Adjusting the starting point ..................................................................................[24] Mitigating factors .................................................................................................[25]
Pre-Sentence Report [26]
Previous good character [28]
Guilty plea [31] Sentence ...............................................................................................................[32]
Introduction
[1] Mr Wu, you appear for sentencing today on one charge of possession of a Class B controlled drug, which is an offence against s 6(1)(f) and s 6(2)(b) of the Misuse of Drugs Act 1975 and carries a maximum penalty of 14 years’ imprisonment.
[2] Mr Wu, you pleaded guilty on the morning of your trial, 15 June 2015. However, you indicated to the Crown some weeks prior to trial that a plea will be likely.
Facts
[3] Mr Wu, you were arrested as part of Operation GEM, which involved an investigation into the importation, supply and distribution of Class A and Class B controlled drugs in New Zealand by a syndicate operating from China.
[4] On 22 October 2013, at approximately 8:15 am police executed a search warrant at a property at Pakuranga. You were the sole occupant. The police located
10.258 kg of pseudoephedrine in the form of ContacNT granules in a locked bedroom. A key to the bedroom was located on your keyring, which was in your bag.
[5] The granules were packaged for the purposes of sale. There were 10 one set packages, six two set packages, and eight three set packages. Each package was wrapped with newspaper and labelled with the number of sets contained within. Each set weighed approximately 223 grams. The quantity of ContacNT contained between 3.4 and 4.1 kg of pseudoephedrine. The amount was capable of yielding between 1.7 and 2.6 kg of methamphetamine.
[6] Your role was to be a keeper of the granules. Your co-defendant Mr Ma would travel to the address to collect quantities of ContacNT on behalf of other dealers.
[7] After your arrest you declined to comment when spoken to by the Police and refused to name any third party or identify its role in the offending.
Purposes and Principles of Sentencing (ss 7 and 8 of the Sentencing Act 2002)
[8] I keep in mind the relevant purposes and principles of sentencing. The most applicable to this case are to denounce your conduct and to deter yourself and others from committing similar offending in the future. Another is to hold you accountable
for the harm done to the community and to promote in you responsibility for that harm.
[9] The relevant principles which I must take into account are the gravity of the offending and the seriousness of the type of offence. I must impose a penalty near the maximum if the offending is near the most serious offending of its kind and I must ensure consistency with appropriate sentencing levels.
Sentencing approach
[10] I will follow the sentencing approach set out in R v Clifford.1 I will first identify a starting point which reflects the aggravating factors relating to the offence. I will then evaluate the mitigating and aggravating factors relating to you personally. Lastly, I will apply a discount for the guilty plea.
Submissions for the Crown
[11] The Crown submits that the Court should take into account the fact that pseudoephedrine has been recently re-classified as a Class B controlled drug. In re- classifying the drug from Class C to Class B, Parliament has increased the maximum penalty from eight years’ imprisonment to 14. The Crown submits that the increase in penalty signals to the Court that harsher sentences ought to be imposed for such offending.
[12] The Crown submits that an appropriate starting point is between six and seven years’ imprisonment. The Crown also accepts that you should receive a discount for your guilty plea in the vicinity of 15 to 20 per cent, but opposes any discount for previous good character.
Submissions for the defendant
[13] Mr Wu, you have instructed your counsel to inform the Court that you did not receive payment for allowing your premises to be used for storing drugs. Your
1 R v Clifford [2011] NZCA 360 at [57]—[60].
counsel submits that your offending falls between that in R v Ha2 and R v Li.3
Counsel submits that the offending is more serious in Ha but the quantity involved and the level of activity is significantly less than in Li.
[14] Counsel submits that a starting point in the range of six years should be taken and a discount of 20 per cent for the guilty plea should apply.
Starting point
Aggravating factors relevant to the offending (s 9 Sentencing Act 2002)
[15] I accept the aggravating factors of the offending as they are submitted by the
Crown:
(a) The extent of commerciality: the quantity of pseudoephedrine contained in the ContacNT granules was between 3.4 and 4.1 kg. That quantity is capable of yielding between 1.7 and 2.6 kg of methamphetamine.
(b)The period of offending: it is unknown how long you have stored the granules or how long you have been involved in the syndicate. However, police surveillance indicates that you were involved since at least August 2013 until your arrest in October that year.
(c) The role of the offender: it is apparent that you allowed your property to be used as a storehouse, and that Mr Ma travelled there to collect the drugs. It is also apparent that you were not a ringleader or mastermind, but your role was nevertheless an important one.
(d)The nature and extent of the connection between the offending and the offender’s participation in an organised criminal group: the offending is directly linked to your participation in organised criminal activity.
You played an important part within a wider distribution network that stretched from China to New Zealand.
Relevant Cases
[16] There is no tariff decision for possession or importation of a Class B
controlled drug. In R v Wang,4 where the defendant was charged with possession of
11.2 kg of pseudoephedrine for supply, the Court of Appeal identified that R v Wallace5 is the leading authority for Class B offending. In R v Wallace the Court of Appeal, recognising that there is a considerable range in the seriousness of offending, identified three categories which are to be used when setting a starting point:
[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 a principal offender will be in excess of 8 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 5 to
8 years.
[32] For smaller operations, but representing commercial dealing, starting points of up to 5 years are appropriate. This necessarily must be a broad category to enable sentencers to reflect the many varied circumstances that can arise.
[17] The categories are given in ranges based on the role played by the offender within the wider network, rather than based on quantities of the drug as was the approach taken for methamphetamine related offending in R v Fatu.6 In respect of
the role played by the offender, the Court of Appeal stated:7
There is little difference to be drawn between manufacturers and importers. Both introduce the drug to the market. Their interdependence with wholesale distributors mean that the true instigator might fill any of these roles or
4 R v Wang [2014] NZCA 409.
5 R v Wallace and Christie [1999] 3 NZLR 159 (CA); (1999) 16 CRNZ 443.
6 R v Fatu [2005] NZCA 278.
7 R v Wallace and Christie, above n 4, at [25].
indeed might stand remote simply manipulating others. Instigators, masterminds, prime mover or controllers are at the top level and when convicted must attract sentences at the upper end of the relevant range.
[18] Unlike in methamphetamine related offending, the Courts are less concerned with the retail value of the controlled drug, as the value of pseudoephedrine is to be determined by reference to the potential yield of methamphetamine that could have been manufactured.8
[19] Importantly, there are no distinguishing principles in setting a starting point for importers and suppliers of pseudoephedrine, as in both instances, the drug is intended to be used to manufacture methamphetamine.9
[20] As noted above, you were not a principal mastermind or ringleader and accordingly the first Wallace category is not suitable. However, keeping in mind the large commercial quantity involved, and the duration of the offending lasting at least three months, the offending is too serious to be placed into the third categories. It follows that the second Wallace category is most appropriate, and a sentencing range between five and eight years must be adopted.
[21] Counsel for the Crown has cited a number of authorities in support, and your counsel accepts these as appropriate:
(a) R v Ha: the defendant stored pseudoephedrine in his home and supplied it on to others under instructions from co-defendants. The defendant was identified supplying 1.5 kg of ContacNT on one occasion, and an unknown quantity on another. Andrews J considered that Mr Ha’s role could not be described as fleeting or very minor, because for the drug operation to succeed, ContacNT needed to be stored in places like Mr Ha’s home so that it could be available for supply whenever needed. Andrews J adopted a starting point of four years placing the offending at the top end of the lowest category in R v Wallace.
(b)R v Li: the defendant assisted her partner in supplying a total of 24.65 kg of ContacNT, which amounted to 10.35 kg of pseudoephedrine, to his customers. The defendant’s role was to deliver and collect payments. The starting point was seven and a half years’ imprisonment.
(c) R v Afakasi:10 the case involved a wide range of drug offending. The defendant was involved in supplying 4 kg of pseudoephedrine. The Court noted that that charge alone would attract a starting point between five and seven years’ imprisonment.
(d)R v Wang: the defendant possessed over 35 kg of ContacNT, from which 11.2 kg of pseudoephedrine could have been extracted, and which in turn could be used to produce 5.6 to 7.8 kg of methamphetamine. The Court of Appeal imposed a starting point of eight years’ imprisonment.
Setting the starting point
[22] I consider that your role in the offending is very similar to the defendant’s in R v Ha. I agree with Andrews J’s observation in that case that the role of a person allowing for their property to be used as a safe storehouse was crucial to the success of the wider distribution network, the end aim of which was to manufacture and sell methamphetamine. However, I am also mindful of the Court of Appeal’s comments that a starting point at the top of the relevant range should be adopted for instigators, masterminds, prime movers or controllers. Having found that your role was lesser than these, I consider that your offending falls into the middle of the second Wallace category.
[23] Accordingly, I take a starting point of six and a half years’ imprisonment.
Adjusting the starting point
[24] Mr Wu, you have no previous convictions. There are no aggravating factors relevant to you personally that warrant an adjustment of the starting point.
Mitigating factors
[25] Mr Wu, you are 39 years old. You are a Chinese citizen and have lived in New Zealand since 1995. You have no previous convictions of any kind. Your parents also live in Auckland. You are reportedly single and do not have any children. Your employment history involves various labouring jobs.
Pre-Sentence Report
[26] During the interview you were not forthcoming with information and you were reluctant to discuss your personal situation, your family, your co-offenders, your offending or what caused it. From the limited information that you have offered, you described your offending as one of being at the wrong place, at the wrong time, and indicated that you did not know that ContacNT was a controlled drug in New Zealand. You also stated that you would not be in custody if you did not want to get caught.
[27] You are classified as being at a low risk of further offending and posing a low risk of harm to others. A sentence of imprisonment was recommended due to the nature of your offending.
Previous good character
[28] Because you have no previous convictions, ordinarily a discount for previous good character could be available. Such a discount however is not always appropriate in commercial drug offending cases. The Supreme Court in Jarden v R stated that in such cases, the personal circumstances of the offender must be subordinated to the importance of deterrence.11 The Court recognised that this does
not mean that personal circumstances may never be relevant in such cases.12 A
11 Jarden v R [2008] NZSC 69 at [12].
discount for personal circumstances in drug-related cases is warranted where the personal circumstances of the offender contributed to the offending, or where compassionate grounds exist.13
[29] In R v Wang, the Court of Appeal overturned the decision to grant a discount for previous good character, which in that case, like in the present, constituted an absence of previous convictions.
[30] Other than a lack of previous convictions there is nothing before the Court that would indicate your previous good character. There is also nothing before the Court that points to some special personal circumstances that were a reason for your offending or that could warrant compassion from the Court. For these reasons, I am not prepared to impose a discount for previous good character.
Guilty plea
[31] Mr Wu, you pleaded guilty on the morning of your trial, although both counsel agree you indicated that was likely to happen some weeks prior. A discount of 15 per cent is appropriate to recognise that you have saved the Crown and the Court the burden of an eight week trial.
Sentence
[32] Mr Wu, please stand.
[33] You are sentenced to five and a half years’ imprisonment on one charge of
possessing a Class B controlled drug.
[34] You may stand down.
JA Faire J
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