R v Miao [2016] NZDC 25357 (13 December 2016)

Last Updated: 13 March 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT AUCKLAND

CRI-2015-004-010919 [2016] NZDC 25357

THE QUEEN

v

_{JINJUN MIAO}

Hearing:	13 December 2016
Appearances:	S McColgan for the Crown B Sellars for the Defendant
Judgment:	13 December 2016

_{NOTES OF JUDGE C J FIELD ON SENTENCING}

[1] Mr Miao, you have been found guilty by a jury and are to be sentenced today in respect of one charge of importing a Class B controlled drug, namely ephedrine. The maximum penalty available to the Court is one of 14 years’ imprisonment, and it is for the Court today to determine the appropriate sentence measured against your culpability in this importation as a whole.

[2] This was a major importation. There was in excess of 80 kilograms of ephedrine imported, and it could have generated revenue of over $9 million. The amount alone brings this case into the most serious band of cases referred to in our leading Court of Appeal judgment. There are other factors, of course, to take into account: the level of your involvement, the actual degree of assistance that you gave, whether this is a case of wilful blindness, as was mentioned during the trial, or whether you in fact knew what was going on and knowingly played your part in it

_{with your eyes wide open. As I have already indicated to counsel, I think this is}

R v JINJUN MIAO [2016] NZDC 25357 [13 December 2016]

more properly a case of wilful blindness, closing your eyes to what must have been obvious to you but choosing to go ahead with the steps you took regardless. The Crown has referred to a number of matters which would support that proposition. I will turn to those shortly.

[3] Importation of significant quantities of drugs into New Zealand involves a number of people fulfilling a number of roles. There is, of course, the top end of the scheme, but others have roles to play. The mules or carriers, for example, the catchers or people who take delivery of the drugs when they arrive in New Zealand, and people such as yourself who actively assist the importer in a number of ways, which places you, I think, at a higher level than a mere catcher. In this case, of course, the Crown submits that you were a facilitator and logistical support person, and on this basis you were more involved than the mere catcher. You used, as the Crown put it, anti-surveillance and anti-detection techniques in that, for example, you lied concerning your identity on one occasion as Lian Qin. You organised the catchers on their arrival in New Zealand, arranging accommodation and some money for them. You used a new phone card. You deleted WeChat history and used, as I have said, a false name for much of your part in this. These are only some of the matters referred to by the Crown in the course of the trial.

[4] I can accept, if only for reason of your lack of previous significant convictions, that you were a relatively unsophisticated young man, no doubt lured by the charismatic figure of Bing Chen. But, I take the view that you were certainly or should certainly have been aware of what was going on but, nonetheless, you closed your eyes to it. Your actual financial reward seems to have been limited, but that is only part of the case against you.

[5] Importation of drugs of this kind, of course, is regarded very seriously, as evidenced by the level of penalties imposed by various Courts and, of course, the leading judgment in the Court of Appeal. Significant sentences must be imposed so that the aspects of deterrence and denunciation can be adequately met in terms of the Sentencing Act 2002 and, indeed, these are the features of sentencing which I am required, I think, to take into account today.

[6] The amount alone, in my view, having regard to the authorities, would justify a starting point of nine years’ imprisonment. I am then left with the assessment of whether or not your account of things to the police was a pre-planned and cynical attempt at taking advantage of the knowledge element of your offence or whether this was truly represented by wilful blindness. I, having heard the case and made my own assessment, feel that whilst it may blur somewhat, you are entitled to the benefit of such doubt as I have, and I lean towards the wilful blindness concept. In the end, I consider that a starting point of nine and a half years is appropriate in your case.

[7] You have spent eight months on electronically monitored bail, and I am prepared to deduct six months from that in recognition of the restrictive bail conditions. That would leave a sentence of nine years.

[8] In addition to that, while personal circumstances count for little, I feel that I can deduct a further period for the support that you have and your previous good record, the fact that you are a comparatively young man aged, I think, 26, and you will be serving your sentence in a foreign prison from your perspective. The most, however, I feel I can allow for that is a deduction of six months. In the end, you are sentenced to imprisonment for a period of eight and a half years.

[9] I have considered the issue of a minimum period of imprisonment, but I think that this is not warranted in this case, having regard to your level of involvement and matters that emerged from the trial. I understand you will be deported upon completion of your sentence and that, in my view, would be entirely appropriate.

[10] In the circumstances, the sentence is one of eight and a half years’

imprisonment. You may stand down.

C J Field

District Court Judge