R v Yu HC Auckland CRI-2007-004-15768

[2007] NZHC 2052

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-004-15768

THE QUEEN

v

XIAO FEI YU

Appearances: N R Williams for Crown

S Tait for Prisoner

Judgment:      27 August 2007 at 9:15 am

SENTENCING NOTES OF COURTNEY J

Solicitor:             Meredith Connell, P O Box 2213, Auckland

Fax: [phone]

Counsel:             S Tait, P O Box 76-538, Manukau City

Fax: [phone]

R V YU HC AK CRI-2007-004-15768  27 August 2007

[1]      Xiao Fei Yu, you appear for sentence today having pleaded guilty to one charge of importing a Class C controlled drug pseudoephedrine.   The maximum penalty for this charge is eight years imprisonment.

[2]      On 3 August 2006 you were on board a Singapore Airlines flight that left Singapore for Auckland.  During the flight you were noticed by another passenger to go into the toilet and the sound of adhesive tape being unrolled alerted the passenger to some suspicious activity.  That passenger reported your behaviour to the police and customs staff at Auckland airport.  You were spoken to and searched by customs and 2.193 kilograms of pseudoephedrine granules were found wrapped in adhesive tape around your waist beneath your clothing.   It is estimated that this amount of pseudoephedrine could produce between 442 to 663 grams of methamphetamine. According  to  the  Crown  this  would  have  a  street  value  in  the  range  between

$265,530 and $663,830.

[3]      Your personal circumstances are these.   You are now 23 years old.   You came to New Zealand as a student in 2002 and obtained a work permit in August

2006.    You  have  worked  for  a  panelbeating  firm  since  then  and  have  a  good character reference from your employer who speaks well of you and describes you as hardworking and you are clearly someone devoted to your family.

Sentencing purposes and principles

[4]      In sentencing in a case such as this my aim is to fulfil the purposes identified in the Sentencing Act 2002, namely to hold you accountable for the harm done to the community through this offending, promote in you a sense of responsibility and acknowledgement of that harm, and deter you and others from committing this type of offence.

[5]      In  fulfilling  these  purposes  I  apply  the  general  principle  set  out  in  the Sentencing Act and in this case in particular taking into account the gravity of the offending and the seriousness of the type of offending in comparison with other offences, the desirability of consistency in sentencing and imposing the least restrictive outcome that is appropriate in the circumstances.

[6]      As a general observation, the charge against you is a serious one because it involves a vital  step  towards  the  manufacture  of  methamphetamine.    This  drug causes immense suffering and harm in our community and those who bring the precursor substances required for it into our country must understand that this is something we regard as completely unacceptable.  Deterrence and denunciation are therefore the primary objectives of sentencing in cases like this.

[7]      The  Crown  points  to  certain  aggravating  features  in  the  offending;  the substantial amount of the precursor substance involved, the obvious level of premeditation, profit motive.  There are really no mitigating features connected with the offending.  I am told, and I accept, that although you did this for money you were motivated by a desire to help your mother who was ill and in need of money for medical treatment and that is an understandable motivation.   But personal circumstances  such  as  this  carry  little  weight  in  this  Court  in  terms  of  drug offending.   I am told you did not realise the seriousness of the offence that you embarked on and indeed it was an amateurish effort, done for personal reasons, not for much gain, but indeed for some gain.  I accept that you probably did not realise the seriousness with which this country views this type of offending, although the level of publicity these days about this kind of offending makes it difficult to see how anyone could not realise the way the Courts view this kind of offending now.

[8]      In the recent Court of Appeal decision R v Xie the Court of Appeal suggested that in sentencing for the importation or supply of pseudoephedrine, being the first step towards the manufacture of methamphetamine, it could be guided by its earlier decision in R v Fatu, which related to the importation of methamphetamine, allowing for the fact that Fatu involved Class A drug in comparison with the Class C drug offending in this case.  I am also assisted by the categorisation of the roles of those involved in importing discussed in the case of Wickremasinghe.   In your case you would fall into Category 2 being a crucial player but not a mastermind or prime mover.  In terms of the Fatu bands you would fall into Band 2 being the importation of commercial quantities of the drug which attracts a starting point of three years six months to ten years imprisonment.

[9]      I am also assisted by comparable recent cases1.  I consider that four-and-a- half years would be a reasonable starting point.  And from this starting point you are entitled to a substantial discount to reflect  your immediate acknowledgement of guilt.  At this point I note that you are indeed remorseful.  I accept what counsel tells me about the level of your remorse.  Your employer notes that you are remorseful and your probation officer likewise.  I accept that you deeply regret what you did and possibly did not realise how serious the consequences would be for you.  It seems unlikely that you will re-offend.  Your counsel tells me that it is your wish to return to China and be with your family given your mother’s sickness.  Taking these factors into account I therefore reduce the starting point to reach a final sentence of two

years, nine months.  Stand down.

P Courtney J

1 Qui Wu & Ho