R v Xia HC Auckland CRI 2006-092-009456

[2008] NZHC 2497

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-092-009456

THE QUEEN

v

YAO YONG XIA

Hearing:         12 August 2008

Appearances: J Dixon for the Crown

L West for the prisoner

Judgment:      12 August 2008

SENTENCING NOTES OF STEVENS J

Solicitors/Counsel:

Crown Solicitor, PO Box 2213, Shortland Street, Auckland 1140

L West, PO Box 76 049, Manukau City 2241

R V XIA HC AK CRI 2006-092-009456 12 August 2008

[1]      Yao Yong Xia,  you  appear for  sentence today having pleaded  guilty on

21 May 2008 to two offences under the Misuse of Drugs Act 1975.  There was one charge of possessing the Class A controlled drug methamphetamine for supply, for which the maximum sentence is life imprisonment.  The second charge was one of possessing  a  precursor  substance  for  the  purpose  of  manufacturing methamphetamine, for which the maximum penalty is five years’ imprisonment.

[2]      For the purposes of your sentencing today, I have been assisted by written and oral submissions from the Crown and from your counsel, Mrs West, and by a pre-sentence report prepared by the Probation Officer.

Factual background

[3]      At 7.40am on Friday 24 June 2005, Police and Customs executed a search warrant  at  8  Belgate  Place,  Howick,  where  you  lived  with  the  other  accused, including Ms Huang.

[4]      On searching the  bedroom  you  shared  with  Ms  Huang,  Police  located  a quantity of pink and yellow granules in plastic bags in a kit bag in the wardrobe. Those pink and yellow granules were subsequently identified as originating from cold  medication  capsules  marketed  in  China  under  the  brand  ContacNT.    The granules within the capsules contained active pseudoephedrine, which is a precursor substance used in the manufacture of methamphetamine.  A total of 2.5 kilograms of ContacNT  granules  were recovered  from  your bedroom.    By any measure,  this represents a substantial quantity of precursor product.

[5]      Police also located in the kit bag three plastic containers containing a damp crystalline substance.     That substance was subsequently identified as methamphetamine with a purity of between 70 and 73 percent.  The indications were that it had been freshly manufactured.  The amount of methamphetamine located in your bedroom weighed 54.5 grams.

[6]      You are 25 years of age, single and of Chinese ethnicity.  You came to New Zealand  from  China  in  February  2004  to  study  for  a  business  diploma  at  the Manukau Institute of Technology.  You are an only child.  You ceased contact with your parents back in China when you were remanded in prison because you were too ashamed to tell them about your predicament.

[7]      You reported that  you  first became involved with drugs when  you  were introduced to the scene by two friends in New Zealand.  You allege that this led to your conviction for breaching the Medicines Act 1981, which involved importing a prohibited  product.     However,  you  reported  that  this  experience  led  you  to understand that you could make money from ContacNT to support your gambling habit, which at times was costing you between $5000 and $10,000 a week.   You reported that your girlfriend and co-offender, Ms Huang, was involved in drugs and that introduced you to the other offenders, who you claim were also involved in drugs.  The four of you lived together for about two months.  You have stated that you are not a drug user and that you never have been.

[8]      You studied for about a year, but after your apprehension on these charges you withdrew from your studies and did not leave the house for a long time.  Mrs West indicates that this was because of depression.   You said that you felt very ashamed of yourself, so you kept to yourself.  You apparently have no health issues, but the probation officer notes that you may have suffered from depression.   You have few friends and apparently no family members residing in New Zealand.

[9]      You have expressed some  remorse for  your  offending  and  the  probation officer notes you acknowledge that you did not think about the consequences of your actions for others.  You recognise that you have lost contact with friends as a result of this offending.   You have accepted responsibility for the offending, given up gambling and demonstrated a willingness to undertake rehabilitative programmes. That is to your credit.  The probation officer assessed you as presenting a low risk of re-offending, but nevertheless recommends a sentence of imprisonment given the

seriousness of the charges.   Your New Zealand visa has been removed and you expect to be deported at the end of your sentence.

Prior convictions

[10]    You have one previous conviction from 2005 for importing prescription medicine contrary to the Medicines Act.   This conviction apparently related to an importation of ContacNT.  You received a sentence of 200 hours’ community work, which you did not complete.  You have recently been convicted and discharged for failing to comply with that sentence.

Crown submissions

[11]     The  Crown  submitted  that  a  starting  point  of  five  and  a  half  years’ imprisonment would be appropriate for your methamphetamine offending, with a small uplift to reflect the aggravating presence of the large amount of ContacNT. The Crown submitted that this offending falls in the middle of band two of the tariff decision in R v Fatu [2006] 2 NZLR 72 (CA). The Crown submitted that your possession of the ContacNT together with the fact that the methamphetamine was freshly manufactured suggests that you were involved in both facilitating the manufacture of methamphetamine and in the retail distribution of the end product. The Crown submitted that the gravity of the offending, as well as your culpability, is accordingly high.

[12]     The  Crown  accepted  that  any  sentence  which  I  impose  upon  you  must achieve parity with the sentence imposed on your co-offender, Ms Huang, taking into account differences in the circumstances between her offending and yours.  She was sentenced by Courtney J to a final sentence of five and a half years’ imprisonment from a starting point of six years’ imprisonment for possessing the same quantities of methamphetamine and ContacNT, but also for two charges of importing  ContacNT.    Her  sentence  was  upheld  by  the  Court  of  Appeal  in  a judgment dated 20 June 2008 which indicated that the final sentence was “lenient”.

[13]     Your counsel Mrs West accepted that your methamphetamine offending falls within band two of Fatu.   Mrs West submitted that your rehabilitation and reintegration ought to be paramount in the sentencing exercise.   She also rightly emphasised that the sentence imposed on your co-offender Ms Huang took into account her two extra convictions for importing ContacNT.  She submitted that you ought to be given credit for pleading guilty, although she acknowledged that this must be tempered somewhat by the fact that you absconded and failed to appear for the trial.  Although you have pleaded guilty, this has inevitably resulted in additional costs to the system of administration of justice.

Relevant purposes and principles of sentencing

[14]     The Sentencing Act 2002 requires that I keep in mind a number of purposes and principles when deciding on an appropriate sentence.   In your case, I have specific regard to the following purposes of sentencing as set out in s 7 of the Act: the need to hold you accountable for the harm done to the community, particularly in respect of this dreadful drug methamphetamine which seems to have society at the present time in its grip.  I must also promote in you a sense of responsibility for, and an acknowledgement of, that harm.  There is a need to denounce your conduct; and the need to deter you and others like you from committing the same or a similar offence.  Also there is the need to assist in your rehabilitation and reintegration.

[15]     In sentencing you, Mr Xia, I also must take into account the principles of sentencing according to s 8 of the Sentencing Act 2002, including: the need to take into account the gravity of your offending, including the degree of your culpability. There is the need to take into account the seriousness of this type of offending in comparison to other types of offences.   There is the need to consider the general desirability of consistency with appropriate sentencing levels and with similar offenders.  There is the need to take into account particular circumstances involving you and to ensure that any sentence is not disproportionately severe.   I have to impose the least restrictive outcome that is appropriate in the circumstances.

[16]     I  also  note  that  the  presumption  against  imprisonment  in  s  16  of  the

Sentencing Act is overridden by s 6(4) of the Misuse of Drugs Act.

Features of the offending

[17]     The Court of Appeal in R v Taueki [2005] 3 NZLR 373 set out the orthodox approach to sentencing. Accordingly, I will first set a starting point based on the features of the offending, and then adjust it according to any mitigating and aggravating features applying to you.

[18]   Section 9(1) of the Sentencing Act requires that I consider aggravating circumstances.  Here, I consider that the following are aggravating circumstances to be relevant:

a)       The loss, damage and harm to the community resulting from your offending in light of the impact of the manufacture of methamphetamine, and its distribution, on the community.

b)The  premeditation  inherent  in  storing  methamphetamine  for  the purpose of supply and ContacNT for the purpose of manufacturing methamphetamine, although I accept that to a certain extent premeditation is inherent in those offences.

c)       The   high   purity   and   recent   manufacture   of   methamphetamine suggesting an active involvement in the nefarious drug trade.

d)       There is also the amount of product, particularly in respect of the

ContacNT in your case.

[19]     Mitigating factors must be taken into account under s 9(2) of the Sentencing Act.  The only mitigating factor in your case would possibly be the fact that your involvement with methamphetamine may have been motivated by a gambling addiction.

[20]     In terms of aggravating factors, I have regard to your previous conviction for importing ContacNT in 2005.  It seems that you have not learnt your lesson in terms of seeking to obtain ContacNT.  As your counsel rightly points out, your offending here did not involve importing on this occasion.

[21]     In terms of mitigating factors, there is your guilty plea, however it only came after you had absconded for an 18 month period before you were apprehended by the Police.

[22]     It seems that you did come to the notice of the Police during that period, although the complainant who raised concerns did not lay a formal complaint with the Police about your conduct.   I accept the Crown submission that the credit that you receive for your guilty plea must therefore be limited.

[23]     You have shown remorse and accepted responsibility for your offending and indicated a willingness to undergo rehabilitative programmes.

Comparable cases

[24]     In  terms  of  the  methamphetamine  offending,  the  guideline  judgment  of course is Fatu.  The case of R v Conway CA275/04 23 March 2005 indicates that the Fatu tariffs are also applicable to possession for supply.

[25]     I have also had regard to the decision of Courtney J in R v Huang HC AK CRI 2005-092-007418 20 November 2007 and the Court of Appeal decision in the same case.  I have also considered the cases of R v Fonotia CA413/06 10 May 2007; R v Sheppard HC AK CRI 2004-044-008504, 24 June 2005, Venning J; R v Boon HC AK CRI-2006-004-21763 18 October 2007, Lang J; and R v Yorston HC AK CRI-2005-004-18740 19 May 2006, Priestley J.

[26]     So far as the possession of ContacNT is concerned, as your counsel correctly points out, there is no guideline judgment for possession of precursor substances, but

I have taken into account the cases which she set out in her submissions.  I propose, however, to treat the possession of methamphetamine for supply as the lead offence.

[27]     I am satisfied that your offending can be characterised as commercial in nature, given the quantity of methamphetamine and the precursor substances involved.   The  freshly manufactured  methamphetamine  and  the  presence  of  the precursor substances suggests an involvement in an overarching drug manufacture and supply operation in which you plainly had a significant involvement.   Like Ms Huang,  there  is  nothing  to  suggest  that  you  were  the  actual  mastermind  or necessarily the main instigator of the operation, but undoubtedly you played a significant role.

[28]     Counsel are broadly in agreement that the appropriate starting point in this case is in the region of five and a half years’ imprisonment, given what Courtney J adopted in respect of Ms Huang.  That approach would seem to have been endorsed by the Court of Appeal and I also accept that your offending was slightly less serious because you were not convicted of importing charges.

[29]     Therefore, I adopt a starting point of five and a half years’ imprisonment in respect of the methamphetamine possession charge and fix an uplift of three months’ imprisonment to reflect the charge of possession of precursor substances, but without the importing charges.   So that would mean  a  sentence of  five  years  and  nine months’ imprisonment to reflect the totality of your offending.  In terms of adjusting the starting point, I have decided upon a further modest uplift because of  your previous conviction.  I do not take into account your claim in the probation report that you were falsely convicted.  That conviction must be taken at face value as far as I am concerned.  With the uplift of three months, that would involve a sentence of six years’ imprisonment before taking into account mitigating factors.

[30]     Mr Xia, you deserve credit for your guilty plea, but as already noted that must be tempered by the fact that you absconded for 18 months.   I also take into account, and give some allowance for your preparedness to turn your life around.  I take into account your remorse and the fact that you have given up your gambling and are willing to undergo rehabilitative programmes.

[31]     I  do  not  take  into  account  something  that  was  taken  into  account  by Courtney J, the possibility that you might find prison more difficult because of your language and lack of family support in New Zealand.   A recent Court of Appeal decision in R v Ogaz CA180/06 6 March 2007 held that the fact an offender is a foreign national, who does not reside in New Zealand and is not a native speaker, will not normally justify a greater than normal discount.   So bearing in mind all those mitigating factors to which I have referred, I propose to allow a discount of one years’ imprisonment.

[32]     The final sentence of the Court on the charge of possession of the Class A controlled drug methamphetamine for supply is five years’ imprisonment.  You will be  sentenced  to  nine  months’  imprisonment  for  the  possession  of  precursor substances for the purpose of manufacturing methamphetamine, concurrent with the other sentence.

[33]     You may stand down.

Stevens J