R v X HC Auckland CRI 2009-004-13740

[2009] NZHC 2199

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-004-13740

THE QUEEN

v

X

Hearing:         7 December 2009

Appearances: S McColgan for the Crown

O Martell for the Prisoner

Judgment:      7 December 2009

SENTENCE OF WOODHOUSE J

Solicitors:

Mr S McColgan, Meredith Connell, Office of the Crown Solicitor, Auckland

Mr O Martell, Barrister, Auckland

R V X HC AK CRI 2009-004-13740  7 December 2009

[1]      Mr X  , if you would like to take a seat – you can sit down.  I need to explain the sentence I am going to impose on you, and I need to explain it not just for your benefit, but for the benefit of the community as a whole.

[2]      You appear for sentence for two offences of importing pseudoephedrine, a class C controlled drug.  The maximum penalty is 8 years imprisonment.

Facts

[3]      You were involved in importing into New Zealand a total of 709 grams of pseudoephedrine in granules in September and October 2008.   There were two consignments, with the granules hidden in a machine in each case.

[4]      It is estimated that the total of 709 grams would have produced between 140 and 200 grams of methamphetamine with a potential street value of approximately

$150,000.  And all of that, Mr X  , indicates that this is serious criminal offending.

Personal circumstances

[5]      You are a 26 year old student.   You came to New Zealand in 2002 on a student visa to study English.   You quit your studies in 2005.   You are currently enrolled in a diploma in information technology which you have been doing for 18 months.

[6]      Your parents live in China.  You are an only child.  You have no family in

New Zealand.

[7]      Your student permit expired in May 2009.  You are therefore illegally in New

Zealand, but you have applied for an extension of your permit.

[8]      You pleaded guilty to the charges after a number of Court appearances but well before a depositions hearing.   You also co-operated with the Police in a substantial way and that is an important consideration.

Sentence

[9]      In determining a sentence the first thing I need to do is fix what is called a starting point.  This is the appropriate sentence having regard to the offence itself, without taking account of any personal factors which might justify an increase or a decrease in the sentence.

[10]     Mr Martell, on your behalf, and the Crown, agreed in written submissions – and there was no further submission made today – that the starting point should be 3 years imprisonment.   This is assessed having regard to the potential quantity of methamphetamine that could be produced, the fact that you got involved through the influence or encouragement of others, and having regard to a number of similar cases.  I agree that the starting point for the offending itself should be around 3 years imprisonment.    That is the  total  for  the two offences.    Do  you  understand  my English?  Yes, you have acknowledged you do, thank you.

[11]     There are no personal circumstances that should result in an increase in the sentence.   You do have one previous conviction, but the Crown accepts that that should not result in an increase.   There are two main considerations justifying a decrease.   One is the guilty pleas.   This occurred sufficiently early to warrant the maximum reduction.  The other is your co-operation with the Police.  Taking these factors into account I consider that the sentence that would otherwise be imposed should be reduced by 60%.  That would reduce a prison sentence, if imprisonment is the appropriate end sentence, to around 14 months imprisonment.

[12]     There is then a question whether it is appropriate to impose a sentence of home detention rather than imprisonment.  There are some factors which suggest that home detention would not be appropriate.  One is that you have committed serious offences relating to illegal drugs – and I have already made that quite clear.  Another is that you are now illegally in New Zealand and may become subject to a removal order.   In other cases where people convicted for similar offences were subject to removal orders, the Court took this into account in deciding that home detention was not appropriate and sentences of imprisonment were imposed.   However, the fact that you are illegally in New Zealand does not mean I cannot impose a sentence of

home detention.  The Crown recognises that there are some special circumstances in your case which may justify home detention.  I am satisfied, Mr X  , for the reasons I have mentioned and further discussed with your counsel and with the Crown, that the appropriate sentence in your case is home detention.

[13]     I need to make clear that, in giving you a credit of 60% and in imposing a sentence of home detention rather than imprisonment,  I have had regard to the special circumstances that apply in your case and, as I have said, which have been discussed with counsel.  In other words, the sentence cannot be regarded as a general precedent for other cases.

[14]     There  is  one  other  matter  that  I  have  to  make  clear.    I  am  lawfully empowered to impose a sentence of home detention, and that is what I am going to do.  However, I have no control over questions relating to immigration.  It may very well be that the Labour Department – the immigration authorities – will decide that you should immediately be deported.   I have no control over that.   Do you understand?  [Mr X   indicated he did understand.]

Final sentence

[15]     Would you stand please.

[16]     For each of the offences of importing a class C controlled drug you are sentenced to home detention for 7 months.

[17]     The sentence is subject to the following special conditions:

a)        You  are  to  travel  directly  from  this  Court  to  apartment  5C,  25

Liverpool Street, Auckland Central.  You are to remain there to await the arrival of the probation officer and the person responsible for electronic monitoring.  Do you understand?

b)Secondly, if required you are to provide spare sets of keys and swipe cards for the apartment to the company responsible for the security

monitoring   and   to   the   probation   officer   responsible   for   your supervision.

[18]     Stand down.

Peter Woodhouse J