The Queen v Huang

[2008] NZCA 174

IN THE COURT OF APPEAL OF NEW ZEALAND

CA691/07
[2008] NZCA 174

THE QUEEN

v

RUI HUANG

Hearing:16 June 2008

Court:Chambers, Randerson and Winkelmann JJ

Counsel:G J Newell for Appellant

A R Burns for Crown

Judgment:20 June 2008 at 11 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)

[1]       Rui Huang was found guilty of the following offences:

(a)Possessing the class A controlled drug methamphetamine for the purpose of supply;

(b)Possessing a precursor substance, namely pseudoephedrine, with the intention that it be used for manufacturing methamphetamine;

(c)Importing, on two occasions, the class C controlled drug pseudoephedrine. 

[2]       Courtney J sentenced Ms Huang to a total period of imprisonment of five and a half years.  She had adopted a starting point of six years’ imprisonment, but allowed a six months’ discount for a “belated attempt to co-operate with police” and for the fact that Ms Huang would “find prison more difficult than most because of the language and [her] lack of family support here”: HC AK CRI‑2005‑092‑007418 20 November 2007. 

[3]       Ms Huang has appealed against sentence.  Mr Newell, who represented Ms Huang both at trial and before us, submitted the sentence was manifestly excessive.  He concentrated his submission on the starting point the judge adopted for the methamphetamine offending, namely five and a half years.  He submitted that starting point was too high given Ms Huang’s role in the offending.  He submitted that the starting point for the methamphetamine offending should have been no more than four years.  Mr Newell did not quarrel with the judge’s uplift for the other offending (six months).  Nor did he quarrel with the judge’s discount for mitigating factors. 

[4]       We turn first to Ms Huang’s role.  The drug operation was run from a house Ms Huang shared with her then boyfriend and another couple.  Three of the four living in the house were charged with drug offending.  Ms Huang’s former boyfriend has not yet stood trial, but counsel believed he had recently pleaded guilty.  The third member charged was Ms Huang’s co-accused at trial.  He also was found guilty on the charges he faced. 

[5] Courtney J, as the trial judge, was in an excellent position to determine what Ms Huang’s role in the drug ring had been. The judge concluded that Ms Huang had been “motivated by profit”: at [5]. The judge considered that Ms Huang had been “directly involved” in the offending, but she was “not the main instigator of the offending”: at [5]. The judge suspected that Ms Huang “may have been under some pressure to assist the main instigator”: at [5].

[6] Later in the sentencing notes, the judge concluded that “it was obvious from the evidence that [Ms Huang was] involved in an ongoing operation in which the pseudoephedrine was imported, collected from the addresses, used in the manufacture of methamphetamine, and that the drug was then supplied”: at [8]. The judge accepted there was no evidence that Ms Huang was actually involved in the manufacture of the methamphetamine, but in all of the other steps of the operation, she appeared “to have a level of involvement”: at [8]. Among other things, Ms Huang arranged the address to which the imported pseudoephedrine was sent. She also assisted in tracking the progress of the shipments on her computer: at [13].

[7]       Mr Newell has not persuaded us that the judge’s findings as to Ms Huang’s role were wrong. 

[8]       We now turn to the starting point.  As this court has recently explained in R v Johnstone [2008] NZCA 143 at [9], “an appellant is not entitled to corral those parts of the sentencing judge’s reasoning process which find favour and concentrate solely on that part or those parts they find less palatable”. What matters is whether the end result for all the offending is manifestly excessive, not whether the appellate court would have constructed the sentence in exactly the same way the sentencing judge did. That is amply demonstrated in the current case. Mr Newell had submitted that the starting point for the methamphetamine offending should have been four years. We asked him what the starting point should have been for the charge of importing pseudoephedrine. He submitted three years. (The judge had concluded four years was appropriate: at [14].) Even if we were to accept Mr Newell’s starting points, we get four plus three: adjusting for totality, we could easily come to six as the starting point for the total offending, which was the judge’s starting point. (We are ignoring for the moment the other charge of possessing a precursor substance; to include that would simply strengthen the point we are making.)

[9]       We might have structured the individual components of the total sentence somewhat differently.  But that is by the by: the overall starting point of six years’ imprisonment was easily within range for the overall offending in this case. 

[10]     It follows that the final sentence of five and a half years’ imprisonment was also well within range.  Indeed, it was lenient. 

[11]     We dismiss the appeal. 

Solicitors:
Crown Law Office, Wellington