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The Queen v Qiu [2006] NZCA 292 (17 October 2006)

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The Queen v Qiu [2006] NZCA 292 (17 October 2006)

Last Updated: 14 November 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA202/06

THE QUEEN

v

PENG QIU

Hearing: 11 October 2006

Court: Robertson, Williams and Panckhurst JJ

Counsel: A D Couchman for Appellant
G J Burston for Crown

Judgment: 17 October 2006 at 11 am

JUDGMENT OF THE COURT

The appeal is allowed. The sentence of four years and three months’ imprisonment is quashed. The appellant is sentenced to three years and nine months’ imprisonment.
____________________________________________________________________

REASONS

(Given by Robertson J)

Introduction

[1] Mr Qiu appeals against a sentence of four years and three months’ imprisonment imposed following a plea of guilty to one charge of importing a Class C drug (pseudoephedrine).
[2] Judge Bouchier determined that a five year starting point was appropriate and, after a reduction for mitigating factors, imposed the effective sentence.
[3] The appeal is advanced on the basis that the sentence was manifestly excessive because:

(a) the starting point was too high;

(b) insufficient weight was given to the guilty plea; and
(c) insufficient weight was given for the appellant’s youth and other mitigating features.

Facts

[4] The Customs Service located 4783.9 grams of a pseudoephedrine-based medicine (Contac NT) hidden in the armrests of two lounge chairs and a sofa imported from China. The furniture was allowed to be delivered. Customs officers and police executed a warrantless search on the delivery address and arrested the appellant. The 4783.9 grams of Contac NT granules seized would equate to approximately 20,528 capsules, which converts to approximately 1847.5 grams of pure pseudoephedrine which, when manufactured, would yield between 923 and 1385 grams of methamphetamine. The street value of the seizure would be between $923,700 and $1,385,500. This is calculated on the basis that a gram of methamphetamine would cost up to $1,000 if sold by a dealer.
[5] The appellant said he was asked by a female friend whether he wanted to make some extra money by importing pseudoephedrine. His role was to recruit associates who would accept delivery and then organise the transfer of the drugs to his house. He was offered $1,000 for his role in the importation scheme.

Judgment under appeal

[6] The submissions at sentencing focused on the fact that Mr Qiu did not devise the plan and that his friend was going to be the main beneficiary of the importation. The Judge recognised that the appellant was not a "one man band". However, she found at [19]:

... [t]he importation demonstrated conduct which was deliberate, carefully planned and premeditated and for commercial profit.

[7] The Judge identified mitigating factors: the guilty plea, youth (the appellant is 20 years old); and previous good character (no previous convictions). However, she did not accord these much weight because she said:

In the cases of drug offending with commercial undertones, personal circumstances are relegated in importance to the need to deter in dealing in drugs and the potential harm to the vulnerable.

Issues

Was the five year starting point too high?

[8] The sentencing Judge followed the approach in R v Ho HC AK CRI-2005-092-00567 12 April 2005 which held there were two starting points for importation offending depending on the category of culpability. The first includes offenders "in the top level, instigators, masterminds, prime movers and controllers": at [23] with a starting point in the range of six to seven years. Category two includes people who are still crucial players but are not the masterminds. These are the "people without whom the enterprise could not be brought into fruition": at [23] and includes couriers. The starting point is between three and five years.
[9] In the present case Judge Bouchier found that the offending fell at the high end of category two and took a starting point of five years.
[10] Mr Couchman argued that this was excessive and resulted from the influence of the Crown submission that the offending in the present case was similar to that in R v Wu HC AK CRI-2005-092-006711 27 September 2005. There the offender sourced 2.2 kilograms of pseudoephedrine from China and imported it into New Zealand by carrying the capsules strapped to his body. Potter J in sentencing described him as a "one man band".
[11] In Wu, the Judge took the view that the offending fell between the two categories articulated in Ho meaning that the offender was more culpable than a courier and less culpable than a mastermind in a drug importation operation and took a starting point of four and a half years. The drugs involved had a potential to yield methamphetamine worth $400,000 to $600,000.
[12] Mr Couchman noted that the Crown had initially argued that Mr Qiu was a "one man band" and had sought a starting point of between five and five and a half years. However, in the course of the sentencing, the Crown accepted that was not the case but there was no consequent modification of the starting point in light of the concession which was accepted by the sentencing Judge.
[13] Counsel submitted that a starting point up to four years would have been appropriate. He referred to R v Ye HC AK CRI-2006-404-000175 18 July 2006 where the offender played a similar role to that of Mr Qiu as an effective middle-man. Mr Ye was involved in the importation of 8.8 kilograms of pseudoephedrine and the starting point there was four years and nine months.
[14] Mr Couchman emphasised:

(a) that Mr Qiu did not formulate the plan to import the drugs;

(b) did not source the pseudoephedrine; and
(c) was not going to receive the proceeds from the sale of the pseudoephedrine.

[15] Mr Burston accepted that, while the starting point adopted was at the top end of the range, it could not be categorised as manifestly excessive. He referred to R v Guo HC AK CRI-2005-004-007990 CRI-2005-004-013886 16 September 2005. There the accused was a facilitator in a large-scale pseudoephedrine operation and was convicted of three charges. He was only 17 years old and received $10,000 for his part in the importation. In sentencing the Judge took a starting point of five and a half years to recognise the large volume imported (28.7 kilograms).
[16] It is clear that there have been a variety of decisions in the High Court dealing with not dissimilar offending and a pattern of adopting the two categories identified in Ho. For the purposes of this appeal, we are content to do likewise.
[17] As well as the initial assessment of the appropriate categorisation, the decisions have not surprisingly reflected the amount of pseudoephedrine which has been imported, and its potential yield as methamphetamine, and its possible street value, the number of occasions and the general circumstances of the importation.
[18] It is common ground that Mr Qiu’s offending was in category two. It is not in dispute that the offending was at the higher end of that category. The five year sentence was the very top of the available sentencing range but, particularly having regard to the value of the drug involved, its potential for the manufacture of methamphetamine and the serious social and criminal problems flowing from that drug, we are not persuaded that the starting point was beyond the sentencing Judge’s discretion.

Did the Judge fail to give proper weight to the mitigating factors?

[19] The Judge’s approach to the mitigating factors is noted in [7]. There are two aspects of challenge. First, Mr Couchman argued that the discount for the plea of guilty was insufficient. It was 15%. He argued that a discount of at least 20% was warranted for the guilty plea, even although it was not early. He pointed to various of the cases mentioned above where guilty pleas entered at a comparable time had attracted substantially greater discounts.
[20] As observed by Mr Burston, where there were the most markedly different discounts there had also been early co-operation and assistance to the authorities. Mr Qiu’s assistance only occurred after the person whom he identified as being the organiser had left the jurisdiction.
[21] We accept that 15% was, in all the circumstances, a modest discount, although not necessarily beyond sentencing discretion. Discounts are for early pleas and the longer accused people delay facing the consequences of their acts and omissions the less will be the reduction.
[22] Although we agree that personal circumstances do not have much priority in offending of this nature, the Court was sentencing a man for offending when he was 19 years of age with no previous convictions and whose involvement was in a one-off incident.
[23] It is not helpful to endeavour to place precise percentages on various mitigating factors, but we have been persuaded that, in the total circumstances of this case, the guilty plea and his personal situation taken in concert suggest that a sentencing discount of 25% would more properly reflect the ends of justice.

Result

[24] The appeal is allowed. The sentence of four years and three months’ imprisonment is quashed and Mr Qiu is sentenced to three years and nine months’ imprisonment.

Solicitors:
Crown Law Office, Wellington

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[1]	Mr Qiu appeals against a sentence of four years and three months’ imprisonment imposed following a plea of guilty to one charge of importing a Class C drug (pseudoephedrine).
[2]	Judge Bouchier determined that a five year starting point was appropriate and, after a reduction for mitigating factors, imposed the effective sentence.
[3]	The appeal is advanced on the basis that the sentence was manifestly excessive because:

[8]	The sentencing Judge followed the approach in R v Ho HC AK CRI-2005-092-00567 12 April 2005 which held there were two starting points for importation offending depending on the category of culpability. The first includes offenders "in the top level, instigators, masterminds, prime movers and controllers": at [23] with a starting point in the range of six to seven years. Category two includes people who are still crucial players but are not the masterminds. These are the "people without whom the enterprise could not be brought into fruition": at [23] and includes couriers. The starting point is between three and five years.
[9]	In the present case Judge Bouchier found that the offending fell at the high end of category two and took a starting point of five years.
[10]	Mr Couchman argued that this was excessive and resulted from the influence of the Crown submission that the offending in the present case was similar to that in R v Wu HC AK CRI-2005-092-006711 27 September 2005. There the offender sourced 2.2 kilograms of pseudoephedrine from China and imported it into New Zealand by carrying the capsules strapped to his body. Potter J in sentencing described him as a "one man band".
[11]	In Wu, the Judge took the view that the offending fell between the two categories articulated in Ho meaning that the offender was more culpable than a courier and less culpable than a mastermind in a drug importation operation and took a starting point of four and a half years. The drugs involved had a potential to yield methamphetamine worth $400,000 to $600,000.
[12]	Mr Couchman noted that the Crown had initially argued that Mr Qiu was a "one man band" and had sought a starting point of between five and five and a half years. However, in the course of the sentencing, the Crown accepted that was not the case but there was no consequent modification of the starting point in light of the concession which was accepted by the sentencing Judge.
[13]	Counsel submitted that a starting point up to four years would have been appropriate. He referred to R v Ye HC AK CRI-2006-404-000175 18 July 2006 where the offender played a similar role to that of Mr Qiu as an effective middle-man. Mr Ye was involved in the importation of 8.8 kilograms of pseudoephedrine and the starting point there was four years and nine months.
[14]	Mr Couchman emphasised:

[15]	Mr Burston accepted that, while the starting point adopted was at the top end of the range, it could not be categorised as manifestly excessive. He referred to R v Guo HC AK CRI-2005-004-007990 CRI-2005-004-013886 16 September 2005. There the accused was a facilitator in a large-scale pseudoephedrine operation and was convicted of three charges. He was only 17 years old and received $10,000 for his part in the importation. In sentencing the Judge took a starting point of five and a half years to recognise the large volume imported (28.7 kilograms).
[16]	It is clear that there have been a variety of decisions in the High Court dealing with not dissimilar offending and a pattern of adopting the two categories identified in Ho. For the purposes of this appeal, we are content to do likewise.
[17]	As well as the initial assessment of the appropriate categorisation, the decisions have not surprisingly reflected the amount of pseudoephedrine which has been imported, and its potential yield as methamphetamine, and its possible street value, the number of occasions and the general circumstances of the importation.
[18]	It is common ground that Mr Qiu’s offending was in category two. It is not in dispute that the offending was at the higher end of that category. The five year sentence was the very top of the available sentencing range but, particularly having regard to the value of the drug involved, its potential for the manufacture of methamphetamine and the serious social and criminal problems flowing from that drug, we are not persuaded that the starting point was beyond the sentencing Judge’s discretion.

[19]	The Judge’s approach to the mitigating factors is noted in [7]. There are two aspects of challenge. First, Mr Couchman argued that the discount for the plea of guilty was insufficient. It was 15%. He argued that a discount of at least 20% was warranted for the guilty plea, even although it was not early. He pointed to various of the cases mentioned above where guilty pleas entered at a comparable time had attracted substantially greater discounts.
[20]	As observed by Mr Burston, where there were the most markedly different discounts there had also been early co-operation and assistance to the authorities. Mr Qiu’s assistance only occurred after the person whom he identified as being the organiser had left the jurisdiction.
[21]	We accept that 15% was, in all the circumstances, a modest discount, although not necessarily beyond sentencing discretion. Discounts are for early pleas and the longer accused people delay facing the consequences of their acts and omissions the less will be the reduction.
[22]	Although we agree that personal circumstances do not have much priority in offending of this nature, the Court was sentencing a man for offending when he was 19 years of age with no previous convictions and whose involvement was in a one-off incident.
[23]	It is not helpful to endeavour to place precise percentages on various mitigating factors, but we have been persuaded that, in the total circumstances of this case, the guilty plea and his personal situation taken in concert suggest that a sentencing discount of 25% would more properly reflect the ends of justice.