The Queen v Xie

[2008] NZCA 111

IN THE COURT OF APPEAL OF NEW ZEALAND

CA192/07
[2008] NZCA 111

THE QUEEN

v

JIAN ZHONG XIE

Hearing:23 April 2008

Court:William Young  P, Chisholm and Ronald Young JJ

Counsel:B J Hart and A J Haskett for Appellant

M D Downs and S B Edwards for Crown

Judgment:5 May 2008 at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Chisholm J)

Introduction

[1]       After pleading guilty to 20 counts of importing pseudoephedrine, one count of possession of pseudoephedrine for supply, and one count of breaching bail, the appellant was sentenced by Asher J to eight years and three months imprisonment.  He appeals against that sentence on three primary grounds:  the starting point adopted by the Judge was too high;  inadequate allowance was made for his guilty plea and previous good character;  and the Judge erroneously treated him as the mastermind behind the importations. 

[2]       In relation to the third ground, affidavits sworn by the detective in charge of the file and the appellant are before the Court.  Both the detective and the appellant were cross-examined.  Counsel for the Crown and counsel for the appellant also placed affidavits before the Court, but they were not cross-examined.  We will return to this evidence when we consider the third ground of appeal. 

Background

[3]       Interception of a package containing a large number of blank credit cards led to the execution of a search warrant at 24 Springleigh Avenue, Auckland, on 21 December 2005.  That property was rented by the appellant and his wife.  The search revealed 120,000 Contact NT pseudoephedrine capsules behind a locked door leading to the basement area.  It was estimated by the police that those capsules could make methamphetamine having a street value of $4 – 6 million. 

[4] Subsequently the police established that there had been 20 separate importations from China to fictitious consignees at various Auckland addresses. By virtue of various exhibits located at the appellant’s address plus other information, the police were able to link the appellant to each of these importations: see [25]. A total of 135,512 pseudoephedrine capsules were seized by Customs. It was calculated that the seized capsules could make methamphetamine having a street value of $6 – 9 million. The final importation involving 8,691 capsules occurred while the appellant was on bail.

[5]       Taking into account both the capsules located at the appellant’s address and those seized by Customs, there was a total of 255,512 pseudoephedrine capsules weighing 22.9 kg.  Those capsules were capable of making methamphetamine with a street value of $10 – 15 million. 

[6]       The appellant, who is 37 years of age, was born and raised in China.  He came to New Zealand with his wife in 2002.  Their two children remained in China with the appellant’s mother.  After the appellant’s arrest and before his sentencing, the appellant’s wife was permitted to return to China. 

Sentencing in the High Court 

[7]       Although Asher J noted that there was no tariff case relating to the importation of pseudoephedrine, he accepted that R v Xie [2007] 2 NZLR 240 addressed the principles to be applied. He also indicated that sentencing should be approached broadly on the basis of concurrent sentences (albeit that he considered that the sentencing options available were not constrained by the maximum penalty for importing of eight years) and that the totality principle applied.

[8]       The Judge recorded that pseudoephedrine had been designated a Class C controlled drug because it is the principal ingredient in the production of methamphetamine.  For that reason he proceeded on the basis that the guidelines in R v Fatu [2006] 2 NZLR 72 were of some significance. It was his view that if the offending had involved the importation of methamphetamine it would have fallen into band four of Fatu and attracted a sentence of 12 years to life imprisonment.  While the Judge recognised that importation of pseudoephedrine only carried a maximum penalty of eight years imprisonment (in relation to each charge) he considered that the potential yield of methamphetamine should be taken into account. 

[9]       As to the appellant’s role in the offending, the Judge observed:

[13] … It is common ground between the Crown and your counsel that you had arranged the importation and were in charge of the capsules in New Zealand.  If you had not been apprehended you would have sold the capsules to persons who would have then proceeded to manufacture the methamphetamine and sell it.  Thus, while not a mastermind in the sense of being in charge of the whole process from import of pseudoephedrine to sale as methamphetamine, (which would have led to much more serious charges in any event), you were in charge of this importation of pseudoephedrine.  You were, therefore to that extent, a mastermind.  As I have said, your counsel has not disputed this.

It was those observations that led to further evidence being adduced in this Court. 

[10]     The Judge then compared the case before him with R v Xie.  Having noted that the quantity in that case was considerably greater and that the starting point was 11 years imprisonment, Asher J continued:

[15]     I decline, however, to adopt the approach suggested by your counsel and reach a starting point by calculating the percentage difference between 36.8 kg and 22.9 kg to the sentence starting point of 11 years’ imprisonment in R v Xie, Guo & Zhang.  While I do place weight on the fact that there was a considerably lower weight of pseudoephedrine imported, here there were 20 separate importations rather than the six in R v Xie, Guo & Zhang.  As I have already commented, the number of separate importations is relevant as each involves a separate pre-meditated act of wrongdoing.  However, I am prepared to accept, even taking this into account, that the starting point should be lower in this case than in R v Xie, Guo & Zhang.  I also put to one side the fact that in R v Xie, Guo & Zhang the 11 year starting point was considered the “lowest appropriate starting point”. 

This led the Judge to conclude that the appellant’s “lead role” and the lesser quantity of capsules but greater number of importations justified a starting point of 10 years imprisonment.  

[11]     Asher J then took into account that the appellant had offended while on bail.  He noted that the importation involved a flagrant disregard of the Court’s process and a lack of concern for the consequences of the offending.  To reflect those matters he increased the starting point by one year to 11 years imprisonment. 

[12]     Turning to personal factors, the Judge noted that there was no indication that the appellant had shown any particular remorse.  After noting that the appellant had no previous convictions in New Zealand, the Judge said that he was prepared to give the appellant some credit for his previous good character but that this had to be limited because of the absence of any detail as to his past.  The most significant factor, said the Judge, was the appellant’s guilty plea which, while not at the earliest possible opportunity, was made prior to depositions.  A 25 per cent discount was allowed for mitigating factors. 

[13]     In the end result the Judge imposed sentences totalling eight years and three months imprisonment on the importation charges.  On the possession charge the appellant was sentenced to a concurrent term of three months imprisonment and on the breach of bail charge a further concurrent sentence of three months.  The appellant was ordered to serve a minimum term of four years and two months.

This appeal

[14]     The first ground of appeal alleging that the Judge’s starting point was too high is largely based on the proposition that the Judge’s starting point is incompatible with R v Xie.  Although the third ground of appeal alleging that the Judge inaccurately categorised the appellant as the mastermind behind the importations is treated as an entirely separate ground of appeal, it is our view that the categorisation of the appellant’s role is also directly relevant to the starting point.  Thus we will consider those grounds together before turning to the question of whether there was an adequate allowance for the guilty plea and previous good character. 

Was the starting point too high?

Was a proper comparison drawn with R v Xie?   

[15]     It is alleged by the appellant that Asher J failed to adequately distinguish between the differing seriousness of the offending in the present case compared with that involved in R v Xie.  As the appellant sees it, in terms of quantity the importations in this case were only about 63 per cent of those in Xie and the difference of two years between the Judge’s starting point and the starting point that this Court said it would have applied in Xie had it not been a Crown appeal was manifestly inadequate. 

[16]     Although R v Xie involved six importations totalling 409,240 pseudoephedrine capsules weighing 36.8 kg, it needs to be kept in mind that it was only the final three shipments in that case that attracted charges of importing a Class C controlled drug (pseudoephedrine).  This reflects that pseudoephedrine was only classified a Class C controlled drug at a date between the third and fourth shipments.  Although the first three importations attracted other charges, those charges carried a lower maximum sentence than the importation of a Class C controlled drug.  Therefore in the narrow context of importing Class C controlled drugs the direct comparison is between 269,240 capsules in R v Xie and the 255,512 capsules in this case. 

[17]     Having said that, we should observe that generally speaking a comparison with other cases calls for overall judgment rather than mathematical precision.  It also requires all other relevant factors to be taken into account.  Of particular significance in this case was the fact the appellant faced 20 counts of importation compared with three counts of importation in Xie.  As Asher J rightly observed, offending is more serious if there are numerous premeditated importations. 

[18]     Assuming for the moment that the Judge accurately categorised the appellant’s role in the offending, we have not been persuaded that the Judge’s starting point of 10 years imprisonment was out of step with the 12 years that this Court would have adopted in Xie had it not been a Crown appeal. 

Categorisation of the appellant’s offending

[19]     Behind this ground of appeal is an unfortunate history that could have been avoided if the summary of facts had included the Crown’s allegation that the appellant was the mastermind behind the importations.  There is no real dispute about the history which is traversed in the affidavits of counsel for the Crown and counsel for the appellant. 

[20]     The Crown’s written sentencing submissions prepared for the District Court, and for the High Court after the District Court declined jurisdiction, were on the basis that the appellant was not the mastermind and that his role was at a subsidiary level.  Having received those submissions Mr Cassidy, who originally acted for the appellant, prepared and filed sentencing submissions in this Court but his involvement in another trial meant that he needed to instruct Ms Giles to appear at the appellant’s sentencing at relatively short notice.  Had he been aware that the Crown was going to change its stance he would not have instructed Ms Giles to proceed with the sentencing.  Rather he would have instructed her to adjourn the matter for a disputed fact hearing. 

[21]     Mr Williams, who appeared for the Crown at the sentencing hearing, had received the file the day before.  Having read the file and spoken with the police who did not agree with the submission that the appellant was “not thought to be the mastermind”, he spoke to Ms Giles on the morning of sentencing.  He explained that the Crown was changing its stance and gave the reasons for so doing.  Ms Giles confirms that there was a discussion and that “in the absence of any other instructions, and what I knew informally about the matter, I accepted what the Crown told me”.

[22]     At sentencing, Mr Williams clarified that the Crown’s stance had changed and that it now alleged that the appellant was the mastermind behind the importations.  As the Judge recorded, Ms Giles accepted that that was so.  The summary of facts was silent on the issue. 

[23]     It is against that background that this Court agreed to receive further evidence.  Evidence about the role of the appellant comes from Detective Gray and the appellant. 

[24]     Detective Gray said that it has always been the police view that the appellant arranged the importations and was in charge of the imported capsules once they had arrived in New Zealand.  She said that the police used the term “mastermind” in the sense that the appellant was responsible for arranging for the receipt of the packages at the various addresses or for another person to receive the packages and then bring them to him.  On the other hand, the detective said that it had never been the police’s stance that he was the mastermind in the sense that he was involved in the distribution of pseudoephedrine from China. 

[25]     Reduced to basics, the prosecution stance that the appellant was the mastermind at the New Zealand end reflects:  the very significant quantity of pseudoephedrine found at the appellant’s home when the search warrant was executed;  the documentary evidence located at both the appellant’s home and in a rubbish container outside that linked the appellant to many of the addresses to which the consignments had been directed;  further links between the appellant and some of the consignment addresses by virtue of a cellphone found in his bedroom;  information provided to the police by persons who maintained that they had been instructed by the appellant to pick up consignments;  and surveillance of the appellant and others in connection with the controlled delivery while the appellant was on bail.  We note that while the information provided to the police by those who picked up some of the consignments was material to the police assessment, it was not relevant to our consideration. 

[26]     The appellant denied the he was the mastermind.  He said that he only had “a small role at the final stage of some of the importations” and that he had minimal involvement in receiving delivery of some packages.  The appellant said he was asked to do this by a named person (who we will refer to as KSW) after having met this person in a bar.  It was his evidence that he did not organise the importations and did not know what they were.  Nor did he know that there were 120,000 capsules under his house.  He said that after he was arrested he was told by the police that if he did not plead guilty immediately he and his wife could be kept in custody “for years” before trial.  The appellant also said that when he was sentenced he did not know that the police would be suggesting that he was the mastermind.  Had he known that, he would have told his lawyer to challenge the police’s position. 

[27]     When asked under cross-examination whether he had an explanation for the documents connecting him to various properties at which consignments were received, his explanation was that he had been asked by KSW to rent four properties because he said that he had friends coming from China to visit New Zealand.  The appellant said that he has never been to the properties:  after he had rented them he handed the addresses to KSW.  As cross-examination progressed, he was asked about other properties and responded that he could not remember because it was such a long time ago.  Other explanations were also offered.  The appellant repeated under cross-examination that he did not know that there were 120,000 capsules under his house. 

[28]     Having read and heard the evidence we are satisfied beyond reasonable doubt, in terms of s 24 of the Sentencing Act 2002, that the appellant was the mastermind behind the importations.  We use the word “mastermind” in the same sense as the detective, which also appears to be the sense in which it was used by Asher J.  Detective Gray was an impressive witness.  Given the factors relied on by the police (other than the information provided by those who picked up some of the consignments), we have no hesitation in drawing the inference that the appellant was the mastermind behind the importations.  His contention that he was only a low level player was unconvincing.  There is a fundamental contradiction between his guilty pleas and his claims that he did not know that there were 120,000 capsules under his house and that he did not know what the importations were.  Notwithstanding the allegations made by the appellant about pressure being exerted on him by the police, there was no application for his pleas to be vacated. 

Conclusions

[29]     We are satisfied that the Judge’s starting point of 10 years was within the range available to him.  We are also satisfied that the uplift of 12 months to reflect the fact that one of the importations had occurred while the appellant was on bail was appropriate.  As the Judge observed, this represented a flagrant disregard of the Court’s process.  It also involved the importation of a significant number of pseudoephedrine capsules. 

[30]     Mr Hart argued that the imposition of a sentence of three months for the breach of bail meant that the appellant had effectively been penalised twice for the same aspect of the offending.  We do not accept that submission.  The sentence imposed for the breach of bail was concurrent with the sentence for importing and no element of double counting arises. 

[31]     The first and third grounds of appeal fail. 

Was there sufficient allowance for the guilty plea and previous good character?

[32]     It is contended by the appellant that the allowance afforded for his guilty plea and his previous good character is significantly inadequate.  The appellant claims that a discount of 25 per cent should have been allowed for the guilty plea alone and that there should have been a further allowance of a year for his previous good character. 

[33]     Although the appellant was arrested and charged on 21 December 2005, his pleas were not entered until 21 November 2006.  While it is true that the appellant’s pleas were entered prior to depositions, the delay in depositions was contributed to by the fact that the appellant had breached bail and disappeared for a period.  As this Court observed in R v Fonotia [2007] NZCA at [50], the extent of the discount primarily reflects when the guilty pleas were entered;  the earlier the plea is entered, the greater the discount.  It was also recorded that this Court regularly approves discounts of between 10 per cent and 33 per cent. 

[34]     Obviously the plea in this case was not at the earliest possible opportunity and that factor must directly impact on the discount.  When allowing the 25 per cent discount Asher J did not specifically attribute a proportion to the guilty plea.  However, it is clear from his sentencing remarks that the discount largely reflected the guilty plea and it would not be unreasonable to assume that around 20 per cent was attributable to the guilty plea.  In all the circumstances a discount of that order was appropriate. 

[35]     In terms of the appellant’s previous good character, the Judge was entitled to take into account, as he did, that the probation officer’s report indicated that the appellant was not forthcoming in disclosing his personal circumstances.  Moreover, it has been regularly observed by this Court that personal circumstances do not receive a great deal of weight when it comes to drug offending.  On the assumption that around 20 per cent was attributable to the guilty plea, the balance of 5 per cent would reflect the appellant’s personal circumstances.  Such a discount was appropriate.  

[36]     This ground of appeal also fails.   

Outcome

[37]     All grounds of appeal have failed.  The appeal is dismissed. 

Solicitors:
Crown Law Office, Wellington