R v Ye HC Auckland CRI 2009-090-8660

[2010] NZHC 608

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-090-008660

THE QUEEN

v

HAIHANG YE

Hearing:         16 April 2010

Appearances: C P Paterson for the Crown

O Martell for the Prisoner

Judgment:      16 April 2010

SENTENCING NOTES OF ELLIS J

Solicitors:   Crown Solicitors, PO Box 2213, Auckland 1140

Counsel:    O Martell, Level 1, 4 Kingstone Street, Auckland 1010

R V YE HC AK CRI-2009-090-008660  16 April 2010

[1]      Mr Ye, you have pleaded guilty to a charge under the Misuse of Drugs Act

1975 of importing a Class C drug, namely pseudoephedrine.  The maximum penalty for this offence is eight years imprisonment.

[2]      I formally enter a conviction against you for that offence.

Facts

[3]      On 18 August 2009 Customs Officers intercepted a parcel from China that was addressed to Zhang Lei at 60 Titirangi Rd, New Lynn Auckland.  The package contained 680 grams of ContacNT, which is enough to make between 137 – 205 grams of methamphetamine, which would have a street value of between $137,000 and $205,000.

[4]      Both the contact phone number and the tracking number on the package were subsequently found to have direct links to you and indeed, when a search warrant was  executed  the  following  day  at  60  Titirangi  Road  you  were  present  at  that address.  You had rented the front room of the residence there some two and a half weeks earlier under the name of Zhang, that name being another clear link between you and the package.

[5]      Following your arrest you pleaded guilty to the present charge at your second court appearance, before committal.

Pre-sentence Report

[6]      I have read the pre-sentence report.   It shows that you are a 31 year old Chinese National who  arrived in New  Zealand  from China in 2003 after being granted a student visa to study English in Auckland.   You have been staying in New Zealand illegally since the revocation of your student visa in 2005.  You were formerly employed as a painter on the North Shore.

[7]      You have said that you have never consumed any illegal drugs and explained your offending by stating that “It was raining a lot and I had no work on, I had no

money and my friends in China asked me if I wanted to make some money.”  You have claimed that you thought the offending was not serious and would only warrant a fine and that your friends told you that the package contained a cold and flu remedy.    You say that you did not know that ContacNT could make methamphetamine and that you were offered only $1500 for your part in the importation.

[8]      The pre-sentence report says that you are assessed as being at low risk of re- offending and you accept that you should never have got involved.   However, the report also says that you have an offence supportive attitude and a sense of entitlement. I also do not accept that you did not know what the package contained or what it would be used for.

[9]      Mr Martell advised me today that you have been served with a removal order and  so  you  will  be  removed  from  the  country at  the  end  of  your  sentence,  or immediately if given a community based sentence.

Submissions

[10]     The Crown has submitted that your offending was serious and premeditated and that the amount of pseudoephedrine imported was significant.  The Crown said an appropriate starting point for this charge is in the vicinity of three to three and a half  years  imprisonment.   The  Crown  nonetheless  accepts  that  your  guilty plea before committal was one that was entered at the first reasonable opportunity and that this warrants a sentence of significantly less, that is one-third less.  Your own counsel, Mr Martell, agrees about the discount but submits that a slightly lower starting point of between two and a half to three years imprisonment is appropriate.

[11]     Both counsel have referred me to a number of similar cases to assist me in determining what is the appropriate sentence in your case.

[12]     There are certain statutory matters to which I am required by law to have regard when determining your sentence.  The particular matters that are relevant to this case are the need to hold you accountable for the harm you have done, I must also try to promote in you a sense of responsibility, denounce your conduct, deter both you and others from acting in this way and protect the community.

[13]     I also need to take into account the gravity and seriousness of your offending, and the need to be consistent with other sentences imposed in similar cases, but when  looking  at  the  sentence  I  impose  overall  it  should  be  one  that  the  least restrictive outcome appropriate in the circumstances.

[14]     For you the aggravating factor is a degree of premeditation that was involved in your offending.  In particular, the renting of a room using an alias to reduce the risk of detection is indicative of this premeditation, although I accept that by definition planning is required in order to commit an offence of this kind and do not consider it a significant aggravating feature.  Similarly, the general harm done to the community by methamphetamine and by importing precursor substances used in making methamphetamine is implicit in the penalty for importation offences.

[15]     In terms of mitigating features, I have already noted your early guilty plea and I also note that you have no previous convictions.

[16]     One of the cases referred to me by counsel draws a distinction for sentencing purposes  between  people  who  are  the  “masterminds”  behind  the  importation  of illegal drugs – those who set up the operation and make most of the money from it and those who have played an important, but lesser role in the importation.   The sentencing starting point is greater in the former case than in the latter, second category.

[17]     It is common ground between your counsel and the Crown that you fall within the second, lesser, category of offending.  For this category of offenders the

imprisonment.[1]

[1] R v Ho HC Auckland CRI 2005-092-000567, 12 April 2005. 

[18]     I have considered the sentences imposed in other cases involving second category importation of pseudoephedrine.   These cases show that an appropriate starting point of between two years eight months and four and a half years is the norm which is of course consistent with that three to five year range I have just

mentioned.[2]      The  discount  allowed  from  those  starting  points  of  course  varies

[2] R v Zhai HC Auckland CRI 2007-404-021682, 22 July 2008.

depending on the particular circumstances of the offender and such matters as early guilty pleas.

[19]     Based on my analysis of the comparable cases and the facts of your offending I consider that your offending falls in the lower to middle range of the second category and an appropriate starting point would be three years imprisonment given the amount of pseudoephedrine involved and the absence of any significant aggravating circumstances (other than the necessary premeditation I have already mentioned).   However, I consider that your early guilty plea at your second court appearance (thereby saving the people of New Zealand from having to meet the considerable  costs  of  a  trial)  qualifies  as  a  significant  mitigating  feature  and  I propose to reduce the sentence I would otherwise impose from three years down to

two on that basis.[3]   That means that I must then consider whether or not to impose a

[3] R v Hessell [2009] NZCA 450

sentence of home detention on you.  However neither counsel has suggested that that would be an appropriate outcome and nor do I consider that it would be, in all the circumstances of  your case particularly given a removal order has already been served on you.

[20]     Mr Ye, please stand.

[21]   In formal terms the sentence of the Court will therefore be two years imprisonment on the charge of importing the Class C drug pseudoephedrine.

Rebecca Ellis J

R v You HC Auckland CRI 2008-404-000204, 18 September 2008.
R v Wang HC Auckland CRI 2004-092-8799, 22 February 2005.
R v Zhan HC Auckland CRI 2006-004-22722, 18 September 2007.

R v Chun [2008] NZCA 354.