The Queen v Chen

[2006] NZCA 145

IN THE COURT OF APPEAL OF NEW ZEALAND

CA476/05

THE QUEEN

v

FU CHEN

Hearing:26 June 2006

Court:Robertson, Gendall and Harrison JJ

Counsel:H B Leabourn for Appellant

H D M Lawry for Crown

Judgment:28 June 2006 

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gendall J)

[1]       This is an appeal against a sentence of three years six months imprisonment imposed on the appellant in the District Court at Manukau on 18 November 2005 following his conviction for possessing precursor substances with the intent that they be used to manufacture methamphetamine in breach of s 12A(2)(b) Misuse of Drugs Act 1975. 

Background

[2]       The facts upon which the appellant was sentenced disclosed very serious offending.  His possession of the precursor substances was closely allied to the importation of them from China.  He was a Chinese national living in Auckland and arranged with his parents in China for them to bring a large quantity of pseudoephedrine-based tablets or capsules into New Zealand.  He was to on-sell the product to others and beyond question the purpose was to manufacture methamphetamine.  About 30,000 capsules or tablets containing pseudoephedrine were brought into New Zealand by the appellant’s parents through an elaborate system of hidden body pouches, as well as tablets being packed into a ceramic ornament in their luggage.  The capsules could have produced about 3,000 grams of methamphetamine having a street value of something in the region of $3million.  It was said that the appellant was to receive a cash payment of $10,000 for his part in the importation and on supply. 

[3]       The appellant’s parents were apprehended at Auckland Airport as they were being processed through Customs upon their arrival into New Zealand.  A very substantial quantity of pseudoephedrine-based capsules were found on them and in their luggage.  They, together with the appellant, were jointly charged with possessing the precursor substance pseudoephedrine for the purpose of manufacturing methamphetamine and all three elected trial which proceeded in the District Court at Manukau on 5 October 2005.  It was not until the completion of the Crown case and before there was an election as to whether to give evidence that the appellant pleaded guilty.  He then gave evidence for the defence on behalf of his parents who were acquitted.

[4]       In imposing sentence the District Court Judge observed that the offending was very serious and taking into account its gravity she took as a starting point a sentence of four years imprisonment.  The maximum for such a crime is five years imprisonment, but it was not argued before us that the starting point was outside the permissible range.  The Judge referred to the aggravating features including premeditation and the fact that there had been an earlier “dummy run” in order to ensure that the way may have been clear for a later importation.  The Judge had the advantage of hearing all the Crown and defence evidence at trial.  After taking a starting point of four years imprisonment the Judge concluded that the only mitigating features were the absence of the appellant’s previous convictions, his offer of co-operation to the police but said that the guilty plea only came at the end of the Crown evidence when the evidence was overwhelming.  The Judge said that she did not consider that the plea deserved any discount but went on to accept that a concession of six months was appropriate although noting the personal circumstances of the appellant will carry little weight in a drug case.

Counsel’s submissions

[5]       On behalf of the appellant, Mr Leabourn submitted that the sentence was manifestly excessive and insufficient discount or credit was given to the appellant for pleading guilty.  He said that because of cultural and language aspects the appellant could not fully comprehend the strength of the Crown case until it ended.  Further, he had felt pressure to maintain a stance of innocence for the sake of his parents and because of cultural factors.  Counsel said that if the Judge did take into account the guilty plea, she failed to give sufficient credit for it.  Generally, it was submitted that the sentence was manifestly excessive not being in keeping with sentences imposed on other matters of a similar nature where guilty pleas have been entered.

Discussion

[6]       In terms of possession of precursor substances with the prohibited intent the case must fall at the very top end.  It is far removed from that which is commonly seen, namely “shoppers” who acquire pseudoephedrine tablets from pharmacies with a view to on-selling them to those who manufacture.  This was a sophisticated and major exercise involving importation of a large quantity of pseudoephedrine products.  This was done at substantial risk to those importing but aimed to afford a substantial profit or yield to this appellant and also to those to whom he would eventually supply the product.  Whilst he initially maintained the defence that he did not know that the capsules were to be used for the manufacture of methamphetamine his guilty plea and the “dummy run” make such a claim fatuous.  This was not a case of innocently importing pseudoephedrine-based tablets for sale to those in need of cold remedies and the potential yield of methamphetamine in the public market of New Zealand places this offending at the very top end of the range of cases.  The Judge did not err in fixing a starting point of four years imprisonment and that is not contended.

[7]       The issue is what discount should have been given for the mitigating features which included the absence of any previous convictions against the appellant and his eventual plea of guilty.  Whilst not to be disregarded in the context of this type of crime personal circumstances are of limited weight, and the real issue is whether a discrete concession had to be given for the guilty plea.

[8]       Section 9(2)(b) Sentencing Act 2002 requires the Court to take into account as a mitigating factor “to the extent that [it is] applicable in the case” and when an offender pleaded guilty.  But that does not require a sentencing Judge to always give a discount or concession for a guilty plea and it very much is dependent upon when such occurred.

[9]       Recognition is usually given to a guilty plea upon sentence.  Yet it must always be a factually based issue upon when and where the plea is entered.  A discrete concession is appropriate for an early guilty plea and at other stages to reflect acknowledgement of the crime, remorse, contrition and saving the State and others of the financial and other costs of a trial.  Where, as here, the appellant pleads guilty at the conclusion of the Crown case, the trial was all but completed, and the plea could hardly have been later.  It is difficult to conclude that significant allowance should have been given.  The appellant was initially charged in June 2004 and maintained not guilty pleas for a period of 16 months until 5 October 2005.  Only when the inevitability of a conviction was apparent did he plead guilty.  Perhaps the reason for the plea was also with the aim of assisting his parents but such assistance, and his giving of evidence in their defence could just as easily have been undertaken after an early guilty plea.  Counsel submitted that he felt cultural pressure to maintain face with his parents, or correspondingly to aid his parents, which delayed the acknowledgement of guilt.  Counsel said that it was not until the appellant understood the full impact of text messages that he appreciated the strength of the Crown case.  We do not find those submissions persuasive.

[10]     The appellant’s parents were in grave jeopardy and the appellant maintaining a not guilty plea could not have provided any real benefit to them.  It was the appellant who sent and received the text messages, and he who arranged or instigated the importation of the pseudoephedrine-based products.  He had a pre-arrangement to receive a payment of $10,000.  The plea of guilty was no more than recognition of the futility of continuing to maintain a pretence of innocence.  Allowance for such a plea could only be minimal at best.

[11]     The Judge, in exercising her discretion, was not clearly wrong in refusing any discrete discount for the plea, given that it came when all else had failed.  No savings to the Crown or the State in terms of costs and time followed. 

[12]     In the end the real issue is whether the final sentence of three and a half years imprisonment was manifestly excessive.  We think that the Judge, having taken an appropriate starting point of four years imprisonment, was generous in the context of this serious case, in allowing a discount or concession of six months to reflect the appellant’s personal circumstances.  Any further allowance because of the guilty plea would have been inappropriate.  The offending was grave and called for a stern sentence.  That imposed was clearly within the range available to the sentencing judge.

Result

[13]     The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington