[1] Mr Lin was found guilty of importing large quantities of pseudoephedrine (a Class C controlled drug) to New Zealand from China and a related count of possessing pseudoephedrine for supply. The pseudoephedrine was contained in a cold and influenza medication called Contac NT. Mr Lin contends that the sentence of three years imprisonment is manifestly excessive having regard to the sentences imposed upon his co-defendants and his prospect of reform (Mr Lin is 21 years old and without prior convictions). He also submits that a sentence of home detention should have been imposed, following R v Hill.[1]
[2] The Crown submits that all of the defendants, including Mr Lin, were treated leniently as a consequence of the adoption of incorrect starting points.

Background

[3] Mr Lin is one of a group of young men who imported Contac NT medication from China concealed in furniture and paraphernalia. The broader ring imported a total of 32.86 kilograms of Contac NT or 13.28 kilograms of pseudoephedrine with a potential yield of 6.64 – 9.94 kilograms of methamphetamine.
[4] Mr Lin’s role was limited to providing two consignment addresses and handing the substance on to the co-defendant higher in the chain (Mr Chen). The first package connected with Mr Lin was intercepted. It contained 9.71 kilograms of Contac NT or 3.8 kilograms of pseudoephedrine with a potential yield of 1.9 – 2.85 kilograms of methamphetamine.
[5] The second package was sent to Mr Lin’s home address. He was present and signed for it under a false name. The co-defendant (Mr Chen) came to collect it that afternoon. This package contained 5.3 kilograms of Contac NT or 2.2 kilograms of pseudoephedrine with a potential yield of 1.1 – 1.65 kilograms of methamphetamine.
[6] Those higher in the chain of command, namely Messrs Chen and Nie, (ultimately) pleaded guilty and assisted the authorities. Mr Lin and the remaining co-defendant, Mr Xu, went to trial.

Sentencing remarks

[7] Judge Sharp was dealing with the sentences of the four accused mentioned above: Mr Chen, Mr Nie, Mr Xu and Mr Lin. She noted that, in assessing the relevant starting points for each of the men, the balancing of three factors was necessary: the role played; the number of importations; and the quantity of pseudoephedrine. The Judge relied on the decision of Winkelmann J in R v Ho[2] which she considered had developed something of a tariff case reputation. In that case, a range of three to five years was suggested for those who are not the instigators, masterminds, prime movers and controllers of a Class C importation, but are people without whom the enterprise could not be brought to fruition.[3]
[8] The Judge saw Mr Chen’s role as being the most significant, justifying a departure from the range set in Ho for those who are not considered to be the masterminds or instigators. Mr Chen had been involved in ten importations. She set a starting point of five years and six months. For Mr Nie, who had been involved in seven importations and with a lesser role than Mr Chen, the starting point was set at four years and nine months.
[9] For Mr Xu, the starting point of three years was chosen. While Mr Xu had been involved in four importations, the quantity of Contac NT was low by comparison to his co-offenders: 6.70 kilograms with a resultant potential methamphetamine yield of 1.35 – 2.03 kilograms. The Judge also said that it appeared to her on the evidence that Mr Xu had the least knowledge and involvement of all the men and was enticed into the offending by his older stepbrother, Mr Nie.
[10] The Judge’s starting point for Mr Lin was four years imprisonment. The Judge took into account Mr Lin’s role, the quantity of the drug and the number of importations. The total quantity of Contac NT connected to Mr Lin was 15 kilograms or 6 kilograms of pseudoephedrine with a potential yield of 3 – 4.5 kilograms of methamphetamine over two importations.
[11] In terms of personal factors, the Judge considered Mr Lin to be the most remorseful. She also took into account his promising future as a (student) chiropractor and the fact that he had been led into offending through naivety. She gave him a generous discount of 20 per cent, which she discounted further to reach an end sentence of three years. With regret, she did not consider that this was within a range where home detention could properly and fairly be imposed.

Submissions on behalf of Mr Lin

[12] Mr Edgar, for Mr Lin, submitted that Judge Sharp had erred in her assessment of relative culpability. In his submission, she had underestimated the role of Mr Chen who could be seen as a mastermind. She had also minimised the role of Mr Xu, who had been involved in four importations, as against the two Mr Lin had been involved in. Further, two of Mr Xu’s importations had been undertaken after Mr Xu knew that the police had become aware of Mr Nie’s activities.
[13] While the quantities that Mr Xu was involved with were below those of Mr Lin, Mr Edgar submitted that the Judge had put too much emphasis on this point. In addition, she was wrong to consider Mr Xu was less involved and less culpable than Mr Lin. Mr Lin was recognised by the Judge as having been very naive. Further, the financial reward he was expecting was uncertain. It is submitted on Mr Lin’s behalf that a starting point of three years should have been selected.
[14] Even if Mr Lin’s nominal sentence is not reduced, Mr Edgar submitted that Mr Lin’s youth, his very good prospects of future rehabilitation and his low risk of re-offending should lead to a sentence of home detention.

Crown submissions

[15] The Crown submitted that Judge Sharp placed too much emphasis on High Court authorities at the expense of decisions of this Court. It was also submitted that, in selecting the starting points, the Judge appears to have assumed that the range in Winkelmann J’s decision of Ho delimited the applicable range (three to five years imprisonment). In the Crown’s submission this is not the case.
[16] The Crown referred to a number of this Court’s decisions. The first case was R v Qiu.[4] The defendant in that case imported 4.78 kilograms of Contac NT to New Zealand or 1.85 kilograms of pseudoephedrine. This Court observed that such a quantity could produce 0.923 – 1.385 kilograms of methamphetamine. The Judge at first instance adopted a starting point of five years (in light of Ho). This Court found that this was “at the very top of the available sentencing range” but nonetheless within it.[5]
[17] In R v Wang[6] a Chinese student was stopped upon re-entering New Zealand. He subsequently confessed to being involved in the importation of Contac NT and an associated conspiracy relating to a total of 0.63 kilograms of pseudoephedrine with a potential yield of 0.315 – 0.473 kilograms of methamphetamine. The case went to trial. The defendant was 23 years old and “a person of previous good character”. This Court held that the three and a half year starting point “was within the available range” as was the resulting three year term of imprisonment.[7]
[18] In R v Yin[8] the defendant was convicted of possessing five kilograms of Contac NT or 1.530 kilograms of pseudoephedrine for the purpose of supply. The potential yield from this quantity appears to have been 0.765 – 1.150 kilograms of methamphetamine. The sentencing Judge adopted a starting point of three years imprisonment which the Judge then reduced by six months to accommodate the defendant’s age (21 years by the time of sentencing), “health difficulties” and the defendant’s incarceration in a foreign jurisdiction. This Court declined to interfere, even though it accepted that the appellant had learned “a salutary lesion”.[9] Home detention was rejected “given the underlying seriousness of the criminal conduct in this case”.[10] As with the defendants in the other cases, Mr Yin appeared to have been of previous good character.
[19] The final case of relevance is R v Xie.[11] There, a group of Asian men imported almost 37 kilograms of pseudoephedrine (over six shipments) with a potential yield of 18.5 – 28.75 kilograms of methamphetamine (the exact amount of Contac NT involved is unclear). The sentencing Judge considered himself constrained to a starting point of eight years imprisonment, the statutory maximum for an individual offence. On a Crown appeal, this Court accepted that the Judge had erred and said that, if it was sentencing at first instance, a 12 year starting point could have been justified. Because it was a Solicitor-General appeal, however, the appeal resulted in a substituted sentence of the lead offender of eight years and nine months imprisonment. Mr Xie had pleaded guilty.
[20] The Crown submitted that, while the quantity of pseudoephedrine is only part of the sentencing equation with the other key component being the defendant’s role in the offending, the starting point adopted by Judge Sharp in the case of all four men cannot be reconciled with this Court’s authorities. It was submitted that in Mr Chen’s case, the Judge, when determining the starting point, should have adopted the statutory maximum for an individual offence of this nature: eight years imprisonment. This would have resulted in corresponding increases to the remaining defendants’ starting points, including Mr Lin’s starting point, to maintain parity.
[21] It was submitted that the starting point of four years imprisonment for Mr Lin was at least 12 months too little given the quantity of pseudoephedrine involved. While it is true that Mr Lin is young and of previously good character, this appears to be a feature common to many of the offenders in this area. Moreover, the Crown submitted that the illegal importation of Contac NT does not appear to be abating. The need for deterrence, the Crown submitted, remains paramount.

Our assessment

[22] We accept the Crown submissions that the Judge should not have relied so heavily on a High Court decision when there are relevant decisions of this Court (and we do not in any event consider that Winkelmann J was purporting to set a tariff for this type of offending).
[23] In terms of the authorities of this Court referred to by the Crown, we accept the submission that the starting point for Mr Chen was too low. We also accept the submission that this would have a consequent effect on the appropriate starting point for Mr Lin.
[24] We do not accept Mr Edgar’s submission that the Judge put inordinate weight on the quantity of drugs Mr Lin was involved with compared to Mr Xu. It was an appropriate consideration in assessing relative culpability. Nor do we accept the submission that the Judge failed to take account of the extent of Mr Lin’s role and the fact he was involved in two importations only. These factors were clearly noted by the Judge. She was also entitled to take account of Mr Xu’s youth (17 years old) and the influence of his stepbrother. Judge Sharp had presided at the trial of Mr Lin and Mr Xu and was therefore well placed (and entitled) to assess the extent of their involvement.
[25] In our view, the starting point taken by the Judge for Mr Lin was clearly available to her and any disparity with the starting point for Mr Xu is explicable in terms of the Judge’s assessment of relative culpability on the basis of the factors she outlined. In addition, Mr Lin can count himself fortunate to have received an extraordinarily generous discount where there had been no guilty plea.
[26] As to home detention, we do not consider that this case comes into the exceptional character of cases of which Hill is an example. Even with the very generous discounts given by the Judge, the end sentence was three years and we agree with the Judge that this is likely to be outside the range where home detention can properly be imposed under the transitional provisions. The period of imprisonment imposed reflects the seriousness of the offending (which, after all, involved Mr Lin’s home). Further, while Mr Lin’s prospects for rehabilitation might be good, he does not show the type of current successful rehabilitative efforts that had been shown in Hill.

Result

[27] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Hill [2008] 2 NZLR 381 (CA).
[2] R v Ho HC Auckland CRI 2005-092-569, 12 April 2005.
[3] At [23].
[4] R v Qiu CA202/06, 17 October 2006.
[5] At [18].
[6] R v Wang [2007] NZCA 226.
[7] At [12].
[8] R v Yin [2008] NZCA 257.
[9] At [19].
[10] At [24].
[11] R v Xie [2007] 2 NZLR 240 (CA).

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2010/141.html