R v Zhan HC Auckland CRI 2006-004-22722

[2007] NZHC 2118

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-004-22722

THE QUEEN

v

ZHI TONG ZHAN

Hearing:         18 September 2007

Appearances: H Lawry for the Crown

P Wicks for the prisoner

Sentencing:     18 September 2007

SENTENCING REMARKS OF STEVENS J

Solicitors/Counsel:

Crown Solicitor, PO Box 2213, Auckland

P Wicks, PO Box 1614, Shortland Street, Auckland

R V ZHAN HC AK CRI 2006-004-22722  18 September 2007

[1]      Zhan Zhi Tong, you appear for sentence today having pleaded guilty to one charge of possessing the Class C controlled drug pseudoephedrine for supply.  Under New Zealand law, that is an offence under the Misuse of Drugs Act 1975 carrying a maximum penalty of eight years’ imprisonment.

[2]     For the purposes of sentencing today, I have been assisted by written submissions  from  the  Crown,  helpful  and  focused  submissions  from  your  own counsel and a Probation Officer’s report.   Unfortunately, it seems that when you were interviewed by the Community Probation Service there was no interpreter present.  Accordingly, some of the remarks attributed to you in that report appear to have been as a result of difficulties with the English language.   However, your counsel has today placed the correct information before the Court so I am aware that you fully accept the contents of the summary of facts and have entered a guilty plea to this charge.

Background facts

[3]      On 11 February 2006, you were with a friend in his car when you were stopped by the Police.   On a search of the car, Police located a brown paper bag containing a cellphone, a security access card and a key.  Also inside the bag was a snaplock  plastic  bag wrapped  in  newspaper  containing  450  grams  of pseudoephedrine in granule form.

[4]      Police established that earlier that evening you and your friend had gone to an apartment on Princes Wharf in Auckland and met three of your associates there. When you arrived, the two of you were given the brown bag by others containing all of the previously described items.  You were told to deliver the pseudoephedrine to a pre-arranged purchaser  and confirm the appointment on the  cellphone  provided. Your activities were interrupted before you could make that delivery.

[5]      The amount of pseudoephedrine found in your possession was sufficient to allow the manufacture of approximately 120 grams of methamphetamine.  The street value of such methamphetamine would be in the vicinity of $120,000.

Personal circumstances and pre-sentence report

[6]      You are a 24 year old Chinese national and the only child in your family. You came to New Zealand to study but it appears that your student permit has expired.    You  say  that  you  have  completed  your  English  study  at  Auckland University and would like to continue studying.  It seems from the observations of your  counsel that  your English needs  further  work and  more  study is  required. During your time in New Zealand,  you lived predominantly in an apartment in Auckland  City  and  have  been  supported  by  your  parents.    You  report  having suffering recurring bouts of illness, for which you say you used both Western and Chinese medicine.   You admit having used the nefarious drug “P”, something confirmed today by your counsel.  That may in part explain your involvement in this offending.

[7]      The other offenders were known to you socially, though you say you did not know them well.  To your credit, you no longer want to have contact with them and have been vigilant about avoiding contact with them while on remand.  It seems that you have been in custody since February 2006, a period of some 19 months.

[8]      The Probation Officer considers that you are at medium risk of re-offending. Your counsel confirms that you are subject to a removal order by the immigration authorities and will be deported to China upon completion of your sentence.

[9]      Your criminal history discloses no convictions in New Zealand.

Crown submissions

[10]     The Crown acknowledges that you pleaded guilty prior to trial and whilst awaiting the outcome of a pre-trial ruling which was heard by the Court in June

2007.  The Crown further accepts that your role in the offending was as a courier of the drug.  There are no specific aggravating features relating either to your offending or you personally.  However, any personal circumstances that you seek to rely on in mitigation should, in the Crown submission, be given minimal weight as personal circumstances count for little when dealing with the need to deter drug offenders.

[11]     As a result, the Crown submits that the appropriate starting point for this offending is in the vicinity of two and a half to three years’ imprisonment.  In the Crown submission, the discount you receive for your guilty plea should be only modest.

Submissions for the prisoner

[12]     Mr Wicks submitted that the role that you played in the offending was that of a courier or facilitator, rather than one of a mastermind or instigator.   He further submitted that the offending involved, in comparison with some of the other cases, a moderate amount of pseudoephedrine and is therefore not at the highest end of the scale of offending.

[13]     Your counsel emphasised that you pleaded guilty prior to trial and that you are a first offender.   He helpfully drew attention to some of the previous cases similar to yours, inviting me, as did the Crown, to adopt a starting point of between two and three years’ imprisonment.

Purpose and principles

[14]     There are a number of purposes and principles under the Sentencing Act

2002 that I am required to keep in mind.  I refer to the need to hold you accountable for the harm done to the community through your offending.  Pseudoephedrine is a precursor substance and is a vital ingredient in methamphetamine which is quite frankly the scourge of our community at present.  I am required to promote in you a sense of responsibility for the harm and provide for the victims of your offending. Importantly, on behalf of the community as sentencing Judge I must denounce your conduct and impose a sentence which would deter you and others from committing the same or similar offences.

[15]     I must also take into account the gravity of the offending and degree of culpability, the seriousness of the offending and have in mind the maximum penalty prescribed, which as I said earlier was eight years’ imprisonment.  I must then take

into account the desirability of consistency in sentencing and impose the least restrictive outcome appropriate in the circumstances.

[16]     In terms of the approach to sentencing, I am required by the Court of Appeal in R v Taueki [2005] 3 NZLR 372 to set a starting point based on the features of the offending and then adjust that according to any aggravating and mitigating features of the offender.

Aggravating and mitigating factors

[17]     Section 7(1) of the Sentencing Act specifies a number of factors that may aggravate your offending.  I acknowledge that the extent of the loss, damage or harm from pseudoephedrine offending is great and that your offending required at least some measure of premeditation.   I also consider that these are inherent in the offending which involves possession of pseudoephedrine for supply.

[18]     Section 7(2) allows for statutory mitigating factors.  In terms of the offending here, your role as courier mitigates the starting point to a certain extent.   While distribution of the drug is vital in the overall operation, you are not as culpable, for example, as the importer of the pseudoephedrine might be or the mastermind or instigator of the drug ring concerned.

[19]     Personal to you is your guilty plea, for which you will get some credit, and your previous good character.

[20]     In terms of the starting point, both your counsel and the Crown are agreed that the appropriate starting point is between two and three years.  There is no set tariff for this type of offending.  Most of the cases of possession of pseudoephedrine for supply are charged alongside importation of pseudoephedrine, but that is not the case here.

[21]     In the light of R v Fatu [2006] 2 NZLR 72, the Court of Appeal noted that generally a supplier is less culpable than an importer. While that was in the context of methamphetamine offending, I see no reason not to apply the same type of logic

in relation to pseudoephedrine offending, given that pseudoephedrine is a direct precursor in the manufacture of methamphetamine.

[22]     I have carefully considered the following cases referred to by your counsel: R v Tan HC AK CRI 2006-004-6665 & CRI 2006-004-19122 1 May 2007, Rodney Hansen J; R v Lu & Guo HC AK CRI 2005-004-018884 9 February 2007, Keane J; R v Chen HC AK CRI 2006-004-016564 9 November 2006, Cooper J; and R v Cao HC AK CRI 2006-004-005410 17 October 2006, Andrews J.

[23]     Bearing in mind these cases and the submissions of counsel, I propose to adopt a starting point of two years and eight months’ imprisonment.  This is higher than that adopted in the Tan case on the basis that more pseudoephedrine is involved and the offending here has occurred in the context of a larger drug ring.  I consider you must have been aware of this, given you accepted your instructions from three higher players in the ring.

[24]     I propose to apply a discount of eight months to take into account your guilty plea and good character.  As noted earlier, you will be deported from New Zealand back to China upon your release.

[25]     The final sentence of the Court will be two years’ imprisonment.

Home detention

[26]     Because  I  have  imposed  a  sentence  of  two  years’  imprisonment,  I  am required by s 97 of the Sentencing Act to consider the question of home detention. In so considering, I am required by s 97(3) to take into account the nature and seriousness of the offence, and the circumstances and background of the offender, which I have done.

[27]     Your counsel has very properly acknowledged that, because you  will  be deported back to China, this is not a case where home detention is appropriate.  He has wisely not pushed that point.

[28]     For the same reason, I consider that home detention is not appropriate in the circumstances of this case.  Therefore, the final sentence will be one of two years’ imprisonment.  There will be no grant of leave to apply for home detention.

[29]     I would like to acknowledge the presence today in Court of the interpreter and thank him very much indeed for coming along and assisting you to understand and follow everything that has happened in Court at your sentencing.

[30]     Please stand down.

Stevens J