R v Yin

[2008] NZCA 257

IN THE COURT OF APPEAL OF NEW ZEALAND

CA199/2008

[2008] NZCA 257

THE QUEEN

v

JUN YIN

Hearing:         30 June 2008

Court:            Arnold, Panckhurst and Fogarty JJ Counsel:    R J Earwaker for Appellant

M D Downs for Crown

Judgment:      25 July 2008 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Panckhurst J)

R V YIN CA CA199/2008 [25 July 2008]

Introduction

[1]      Following trial the appellant was found guilty on a charge of possession of the class C controlled drug pseudoephedrine for the purpose of sale or supply.   He was  sentenced  to  two  and  a  half  years  imprisonment.  This  appeal  is  against sentence.  The  appellant  contends  that  the  trial  Judge  erred  in  concluding  that  a sentence of home detention was not an available option and that, in any event, the sentence  imposed  was  clearly  excessive  given  the  quantity  of  pseudoephedrine involved and the appellant’s role in the offending.

The background

[2]      On  28  April  2005  a  container  arrived  in  Auckland  from  Hong  Kong. Included in the consignment was a lounge suite.   Customs officers examined it and found  seven  plastic  bags  containing  approximately  five  kilograms  of  ContacNT pseudoephedrine capsules.  The seven bags contained about 17,000 capsules.  These

in  turn  each  contained  90  milligrams  of  pseudoephedrine,  or  1.530  kilograms  of pseudoephedrine in total.

[3]      This quantity of pseudoephedrine was sufficient to yield between 765 grams and 1.150 kilograms of methamphetamine.  The potential street value of this quantity

of methamphetamine was in the range of $765,000 to $1,150,000.

[4]      Between 24 and 30 May 2005 a person using the name Sun Yun Long (but probably  Zhigang  Yu)  telephoned  the  shipping  company  and  Customs  brokers handling  the  consignment  and  arranged  for  the  lounge  suite  to  be  delivered  to  a

Mt Albert address.

[5]      On 26 May Zhigang Yu and the appellant went to a bank and the appellant withdrew $1,483 from his account which was paid by Zhigang Yu into the account

of the Customs brokers.  This payment facilitated delivery of the lounge suite to the

Mt Albert address.

[6]      A  controlled  delivery  of  the  lounge  suite  was  made  on  30  May  2005  at

10.15am.   Zhigang Yu identified himself to the Customs officers acting as delivery men  as  Sun  Yun  Long  and  took  possession  of  the  lounge  suite.                As  soon  as  the delivery van left Zhigang Yu and an unidentified male removed the ContacNT from the sofa and took it by car to Zhigang Yu’s apartment in central Auckland.

[7]      Later in the day the appellant visited Zhigang Yu’s apartment and two of the seven  bags  containing  ContacNT  were  given  to  him.                 He  took  them  back  to  his central city apartment.  At 10pm that night police officers visited the addresses of the two suspects.   In the appellant’s bedroom, concealed beneath clothing in a suitcase, they found  the  two  packages  containing  ContacNT.   The  appellant  told  the  police that  Zhigang  Yu  had  requested  him  to  look  after  the  suitcase  and  that  he  did  not know what was in it.

[8]      The balance of the ContacNT was located at Zhigang Yu’s apartment.

[9]      At  trial  the  appellant  gave  evidence  in  his  own  defence.     He  said  that  he believed the packages to contain a Chinese medicine which Zhigang Yu intended to

on-sell  within  the  Chinese  community  for  a  profit.     The  jury  did  not  accept  this explanation.  A guilty verdict was returned.

The sentencing

[10]     It is relevant to note that Zhigang Yu entered a plea of guilty to importing the pseudoephedrine.           He  was  sentenced  by  Keane  J  in  December  2006.              The  Judge described  Zhigang  Yu  as  the   “only  active  player  evident”  in  relation  to  the importation.   This  assessment  was  made  in  response  to  a  submission  that  another man  (unapprehended)  was  the  true  instigator.  By  reference  to  other  unrelated sentencing decisions for pseudoephedrine importation the Judge arrived at a starting- point of five years imprisonment and imposed a sentence of three years nine months imprisonment  after  giving  a  credit  of  25  per  cent  for  the  guilty  plea.  Although sought by the Crown, a minimum period of imprisonment was not imposed.

[11]     The appellant appeared for sentence before the trial Judge, Judge Gittos, on

16 April 2008.  He assessed the appellant’s criminality in these terms (at [6]):

Some degree of overall knowledge of what was going on and premeditation must be inferred from your facilitation of payment of the customs charges, your immediate presence at his place to uplift part of the consignment and conceal [it] at your place, and a number of text messages which you made to persons  who  appear  to  have  been  treated  as  potential  customers  for  these drugs at prices which are indicative of an understanding that they were being sold  for  some  improper  purpose.   While  you  asserted  a  naivety  about  the whole  exercise,  and  a  belief that  what  you  were dealing with  was nothing more than harmless customary medicine, I am quite satisfied that you were well enough aware that this was an illicit  drug that you were dealing with and  indeed  all  of  your  dealings,  and  particularly  the  prices  and  the  text messages tend to show a cognisance on your part of all of that.

[12]     After reference to the sentencing outcome in Zhigang Yu’s case Judge Gittos indicated  a  starting-point  “at  the  bottom  of  the  Crown  range  of  three  years  …”

(at [14]).   From this he made a reduction of six months to recognise the appellant’s health difficulties, his age (21 years) and the consideration that a prison sentence for

a  young  man  from  a  different  culture  was  a  more  significant  penalty  than  for  a citizen  of  this  country.             Accordingly  the  end  sentence  was  two  years  six  months imprisonment.

Was home detention an available, and appropriate, sentencing option?

An available sentence

[13] Mr Earwaker’s principal submission in the District Court was that home detention was an available and appropriate sentencing outcome in light of the appellant’s role in the offending and his personal circumstances. The Judge, however, was not satisfied that home detention was open, given the sentence range into which he assessed the case to fall. After articulating the starting-point of about three years imprisonment he said that before home detention was available, there would need to be mitigating circumstances “which would justify me in reducing the sentence to one of two years or less …” (at [12] and [14]). Therefore, the Judge reasoned, home detention was not an available sentencing option.

[14]     At the commencement of the hearing in this Court Mr Downs conceded that

as a matter of jurisdiction home detention was an available sentence.   That said, he supported the Judge’s factual findings and, on the basis of these, submitted that on the merits home detention should not be imposed.

[15]     The  concession  was  based  upon  this  Court’s  decision  in  R  v  Hill  [2008]

2 NZLR 381. Mr Hill was sentenced to a term of two years three months imprisonment for possession of methamphetamine. Both in the High Court, and on appeal to this Court, the appellant sought a sentence of home detention. Prior to the amendment to the Sentencing Act 2002 in 2007 (by which a court-imposed sentence

of home detention was introduced), a grant of leave to apply to the Parole Board for release to home detention was only available if the prisoner would otherwise have been sentenced to a short term of imprisonment.  This was defined as a determinate sentence  of  24  months  or  less.    By  contrast,  the  2007  amendment  contained  a transitional  provision  (s 57),  which  provided  that  so  long  as  the  offence  was punishable by imprisonment, home detention was a sentencing option.   Under s 57 there  is  no  requirement  that  the  indicated  prison  sentence  be  a  short  term  one  (ie, under two years).  This section applies to the present offending.

[16]     We accept, therefore, that the concession of Crown counsel was well made. Even accepting for the moment the Judge’s assessment that a sentence of two years

six months was required, thereby home detention did not automatically cease to be a sentencing  option  in  a  jurisdictional  sense.  To  that  extent  the  Judge  erred  in dismissing  home  detention  as  an  option,  at  least  in  saying  the  sentence  was  not available as a matter of jurisdiction.

An appropriate sentence

[17]     But   it   remains   to   assess   whether   a   sentence   of   home   detention   was appropriate.     Mr   Earwaker   accepted   that   home   detention   was   generally  only appropriate where an offender was convicted of less serious offending and where, in addition, there were good prospects of rehabilitation, coupled with a low risk of re- offending.    In   such   circumstances   home   detention   may   provide   a   sufficient

restriction  on  liberty  to  meet  the  need  for  deterrence,  while  at  the  same  time encourage reintegration into the community and the offender’s rehabilitation.

[18]     Counsel  strongly  urged  the  view  that  the  appellant’s  offending  was  in  the “less  serious”  category  in  that  he  was  convicted  of  possession  for  supply  (not importing),  and  the  pseudoephedrine  involved  was  only  two  of  the  original  seven packages, or about 4000 capsules.  The appellant’s personal circumstances were also urged  upon  us.          In  2005  the  appellant  was  only  18  years  of  age.  He  came  to New Zealand in early 2004, aged 17 years, to learn English and undertake university studies.   A number of personal references were placed before the sentencing Judge, which indicated that the appellant was naïve, not streetwise and probably susceptible

to the influence of others.  One of the referees, a language school teacher who had a pastoral  responsibility  to  the  appellant  and  other  Chinese  students  throughout  the relevant time, gave evidence at the trial to this effect.

[19] In terms of the appellant’s personal circumstances we think that he was a suitable candidate for home detention. He was a young man, living away from the support and influence of his parents, at the time. Although Judge Gittos was in no doubt that the appellant knew full well that the ContacNT was a controlled drug intended for resale, he nonetheless described him as “to some degree, a person of naivety …” (at [12]). Importantly, the references indicated that the appellant had prospered in New Zealand over the three years since his apprehension for this offence. All of the indications were that his apprehension in relation to this offence had served as a salutary lesson.

[20]     A home detention appendix to the pre-sentence report also concluded that the appellant was suitable for the sentence.   It contained the assessment that: “Mr Yin presented as a quiet, deeply remorseful man, who answered questions thoughtfully and clearly.”  It also assessed him as suitable for the relapse prevention programmes and other interventions which would accompany a sentence of home detention.

[21]     Returning  to  the  seriousness  of  the  offence,  some  help  is  provided  by referring to the facts of Hill.   Mr Hill was sentenced to, and successfully appealed against, a term of two years three months imprisonment in relation to possession of

methamphetamine for supply.   The amount involved was 6.3 grams, having a street value  of  about  $6,000.  The  evidence  at  trial  demonstrated  that  Mr  Hill  was  an addict, who also dealt in methamphetamine at street level to feed his addiction.  The redeeming feature of the case was the considerable steps he had taken to address his addiction between the date of his apprehension and the sentencing.

[22]     Despite their different circumstances we do not see any significant difference

in  the  prospects  for  rehabilitation  as  between  the  appellant  and  Mr  Hill.         More difficult, however, is the seriousness of the appellant’s offending.

[23]     Even  recognising  that  he  was  in  possession  of  pseudoephedrine  (a  class  C controlled  drug)  for  the  purpose  of  supply  and  that  the  quantity  was  less  than  a quarter  of  the  amount  imported  by  his  co-offender,  this  nonetheless  remained  a serious offence.   The trial Judge found that the appellant was no mere custodian of the  pseudoephedrine,  but  rather  that  he  was  immediately  and  actively  involved  in text messaging in an  endeavour  to  secure  its  on-sale.   The  4,000  capsules  had  the potential  to  produce  a  very  significant  quantity  of  methamphetamine.  It  was  a further aggravating feature that the appellant provided funds to Zhigang Yu which secured  the  release  of  the  whole  shipment  from  Customs,  albeit  the  appellant  was only convicted upon a possession charge.

[24]     In  the  end  result  we  conclude  that  home  detention  was  not  an  appropriate penalty given the underlying seriousness of the criminal conduct in this case.

Was a sentence of two years six months imprisonment clearly excessive?

[25]     In  fixing a  starting-point  of  three  years  imprisonment  the  Judge  referred  to the five year starting-point applied in the case of Zhigang Yu and said (at [10]):

…  a  lesser  start  point  should  be  adopted  in  your  case  because  you  are charged with … possession for supply, which must be limited to the 4,000 tablets that you had …

Later, in assessing the degree of criminality, he said (at [15]):

Those who import pernicious substances like this into the country, knowing full  well  that  it  is  going  to  be  turned  in  to  methamphetamine,  which  is  a scourge, and responsible for a great deal of criminal activity here and social degradation, need to understand clearly that if they are caught doing it, they will  be  punished  and  that  that  punishment  can  only  be  ameliorated  to  a moderate  degree  to  take  account  of  any  particular  circumstances  of  the offender.

(Emphasis added.)

[26]     Mr Earwaker drew attention to the reference to importing, which suggested that the distinction between the two offences was lost sight of, at least at this point in the sentencing remarks.  Undoubtedly the appellant was close to the action so far as the importing was concerned.  But, of course, he was to be sentenced for possession

of  pseudoephedrine,  and  despite  a  slip  of  the  tongue  we  are  unpersuaded  that

Judge Gittos fell into error in this regard.

[27]     In our view it is not demonstrated that the two and a half year sentence was clearly excessive.  This was a serious offence of possession for supply.  The quantity

of  pseudoephedrine  was  significant. Surrounding  circumstances  aggravated  the offending.  The trial Judge was best placed to assess the degree of criminality and we consider that he imposed a sentence which was within the available range.

[28]     The appeal is therefore dismissed.

Solicitors:

Haigh Lyon, Auckland for Appellant
Crown Law Office, Wellington.