The Queen v Zheng

[2006] NZCA 260

IN THE COURT OF APPEAL OF NEW ZEALAND

CA435/05

THE QUEEN

v

FENG ZHENG

Hearing:30 August 2006

Court:O'Regan, Williams and Heath  JJ

Counsel:M N Pecotic for Appellant

K Raftery for Crown

Judgment:18 September 2006  at 11 am

JUDGMENT OF THE COURT

A        The appeal is allowed.

BThe sentence imposed in the High Court is quashed and we substitute a sentence of two years imprisonment.  Leave to apply for home detention is refused.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1]       Mr Zheng pleaded guilty to one charge of importing the Class C drug, pseudoephedrine.  He was sentenced to imprisonment for a term of two years and three months.  He appeals against that sentence.  Although a number of grounds of appeal were raised, the appeal turns on one issue: did the sentencing Judge, Goddard J, give sufficient credit for the assistance provided by Mr Zheng to the police?

The offence

[2]       In February 2005, the Customs service intercepted consignments of soft toys in which 4000 capsules of Contac NT were concealed.  The consignments were forwarded to Mr Zheng and a co-offender who extracted the capsules from the soft toys and sold them for about $12,000.  Each capsule contained 90mg of pseudoephedrine, a major ingredient in the manufacture of pure methamphetamine.  The Judge was told that the 360,000mg of pseudoephedrine in the consignments could be converted into 180g of methamphetamine worth $180,000.

The sentence

[3]       The Judge described Mr Zheng as a “small time entrepreneur acting on your own behalf and motivated by profit”.  She noted that there had been earlier importations in which Mr Zheng was said to have been involved.  Although he was not charged in respect of these they illustrated his willingness to be involved in such importations.  She set a starting point of three years six months, and gave a discount of about one third to reflect Mr Zheng’s early guilty plea, leading to the sentence of two years three months.

The assistance

[4]       Mr Zheng’s counsel, Ms Pecotic, provided us with a copy of a letter addressed to the Parole Board about Mr Zheng’s assistance to the Police.  It was written by Detective Salton of the Auckland Drug Squad.  The letter records that Mr Zheng assisted the Police in providing information about his co-offender, Xinyu Hu.  Mr Zheng went to Court on the day of the taking of depositions for the charges against Mr Hu.  He did this to assist the Police.  In the end he was not required to give evidence: we understand that his written deposition as handed up.  Mr Zheng is to give evidence for the Crown at Mr Hu’s trial.  If Mr Zheng’s sentence is completed before the trial, and he is deported from New Zealand as is anticipated, he has undertaken to the Police to return to New Zealand to testify at Mr Hu’s trial if required.

The appeal

[5]       Ms Pecotic raised a number of appeal points in her written submission but we are satisfied that it is necessary to deal with only one: the recognition of Mr Zheng’s assistance to the Police.  We say that because we are satisfied that the sentence was within the available range in other respects.

[6]       Ms Pecotic said the officer in charge was available in Court at sentencing and prepared to provide to the sentencing Judge details of Mr Zheng’s assistance to the Police.  The Judge indicated that details of assistance should be provided to her confidentially and declined to hear from counsel or the officer on the subject.  It appears there was a misunderstanding that Mr Zheng had provided assistance in secret, when his evidence against Mr Hu was, in fact, public, in that it was contained in a deposition which had been handed up in open Court.

[7]       Counsel for the Crown, Mr Raftery, accepted that the misunderstanding had meant that Mr Zheng’s assistance to the Police had not had the public recognition it deserved.  He accepted that a reduction in sentence was appropriate to reflect this.

[8]       We understand that Mr Zheng is in protective segregation in prison.  His evidence against Mr Hu is important evidence from the Crown’s point of view.  In addition, the information he provided to the Police led to a revised summary of facts being prepared for Mr Zheng’s own sentencing.

[9]       We are satisfied that this Court should recognise the benefit to the public of Mr Zheng’s co-operation with the Police in a reduction in sentence on appeal.  This Court has indicated in other cases that it is appropriate to do so if there has not been adequate recognition of this factor at sentencing: R v Sanchez-Silverio CA196/05 4 November 2005 at [13] and R v Stark CA104/06 25 July 2006.  We are conscious that the Judge has already made a generous allowance of 15 months for the early guilty plea.  In the circumstances we are satisfied that further reduction of three months is appropriate.  This makes a total reduction of 18 months, or just over 40% from the starting point of three years six months, to reflect both the early guilty plea and the assistance to Police.

The result

[10]     We therefore allow the appeal, quash the sentence imposed in the High Court, and substitute a new sentence of two years imprisonment.  We do not give leave to apply for home detention.

Solicitors:
Crown Law Office, Wellington