R V LI HC AK CRI-2006-019-008458 [2009] NZHC 1122 (25 August 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                  CRI-2006-019-008458



                                            QUEEN



                                                v



                   
                     GUOZHI LI



Hearing:         25 August 2009

Appearances: KP Cato for Crown
             R Mansfield and E
Chan for Offender

Judgment:        25 August 2009

Sentence imposed:        Conspiracy to supply methamphetamine (x1)
         
               7 years' imprisonment, concurrent.
                         Supplying methamphetamine (x1)
                      
  11 years and 3 months' imprisonment, concurrent
                         Possession of methamphetamine for supply (x4)
       
                 11 years and 3 months' imprisonment, concurrent


                         SENTENCING NOTES OF ASHER J




Solicitors:
Meredith Connell, Crown Solicitor, PO Box 2213, Auckland
R Mansfield, Barrister, PO Box 2674, Shortland Street, Auckland



R V LI
HC AK CRI-2006-019-008458 25 August 2009

[1]     Mr Li, after a jury trial you were found guilty of six offences: conspiracy to
supply methamphetamine (x1), supplying methamphetamine (x1) and possession of
methamphetamine for supply (x4).         The maximum
penalty for conspiracy is
14 years' imprisonment. The maximum penalty on each of the other five counts on
which you were convicted
is life imprisonment.


[2]     The charges arose from a police investigation that was code named Operation
Manu.      The police
intercepted various private communications including
communications to the phone of a Ri Tong Zhou.               You were in frequent
communication with Mr Zhou. In relation to Operation Manu as a whole, over
13,500 private communications were intercepted.      
  What was shown was drug
dealing on a large scale. The relevant communications involving you concerned you
talking to Mr Zhou, and,
on a few occasions, persons who assisted him.


[3]     You acquired methamphetamine from Mr Zhou and on-supplied it to others.
You
were a middleman. The offending was in the period between 10 October to
5 December 2006. The telephone calls that were played at
the trial showed a close
working relationship between you and Mr Zhou.


[4]     In relation to various counts on which you were
convicted, excluding the
conspiracy count, the Crown submits that on counts 2 and 3 the amount involved
was 84 grams, count 3: 28
grams, count 5: 28 grams to 140 grams, count 6:
504 grams and count 7: 500 grams. Mr Mansfield, on your behalf, suggests lower
quantities,
equating to 22 ounces or 0.623 kilograms. It is impossible to be precise
as to the amount of methamphetamine involved. It is my assessment
having heard
the evidence, that the amounts suggested by the Crown, which indicate
methamphetamine approaching 1.3 kilograms, is
a little high, but that the amount
involved was certainly in excess of 0.623 kilograms. I propose sentencing you on
the basis that
the amount involved was one kilogram, which reflects my perception
of what was involved.


[5]     Against that background, the Crown
in its written submissions proposed a
starting point of 10 to 12 years' imprisonment for the supply offending, uplifted to

11 to
13 years' imprisonment to reflect totality, and then uplifted another two years
to 13 to 15 years' imprisonment to reflect the fact
that you were on bail when the
offending occurred. In her helpful oral submissions Ms Cato changed the emphasis
somewhat, accepting
that the suggested uplift of two years for the offending while on
bail was too much. Nevertheless she submitted effectively that
the proposed starting
point, excluding that factor in the written submissions, was too low, and that a
starting point of up to 15
years was appropriate in any event. She submitted that a
minimum term of imprisonment was appropriate, and indeed necessary given
the
gravity of the offending.


[6]    Mr Mansfield submitted that a starting point in the range of 11 to 12 years'
imprisonment for the totality of the offending was appropriate. He
submitted that a
finite sentence of between 9.5 years and 11 years' imprisonment was adequate to
address the principles in the Sentencing
Act 2002 and to take into account personal
and parity factors. He strongly submitted that a minimum term of imprisonment was
not
appropriate given your personal circumstances.


[7]    In approaching the imposition of sentence I must first consider the culpability
of your offending to reach a starting point. Having reached that starting point I then
turn to matters relating to you personally
to consider the appropriate end point of
sentence. I then consider the issue of minimum term.


[8]    The approach to sentencing
in a methamphetamine case is well settled. The
various bands for sentence are set out in R v Fatu  [2006] 2 NZLR 72. Both counsel
accept rightly that your offending falls into the sentence range referred to as band 4
in R v Fatu, where the sentence
range is 10 years to life imprisonment.


[9]    Because you were part of a larger operation, quite a number of offenders
involved
in Operation Manu have already been sentenced. Their sentences are
obviously relevant to the sentence I impose on you. In approaching
sentence I must
acknowledge the gravity of methamphetamine offending and the terrible damage
done to our society by the distribution
of methamphetamine by persons such as you.

[10]   In considering the starting point and assessing your culpability, it was made
clear in R v Fatu at [31], and is reflected in the sentences already imposed for
Operation Manu offenders, that the role you played
in the Operation is important. It
is necessary to say something about the others who were involved.


[11]   I accept that Mr Zhou
had the senior role in your relationship. He had access
to large quantities of methamphetamine, and supplied others who have already
been
convicted, Mr Alan McQuade, Ms Lyrice Peri and Ms Wang Jia. As the sentencing
Judge of Mr Zhou (R v Zhou HC AK CRI-2006-019-8458
10 March 2009),
Harrison J stated:

       Mr Zhou was the major distributor and he surrounded himself with a group
       of lesser
criminals.

You were one of those. Mr Mansfield submits that you were recruited by Mr Zhou.
That certainly would be consistent with
my assessment of your relationship, having
heard many telephone discussions between you and Mr Zhou. He was clearly a
dominant and
possibly charismatic person and his energy and access to
methamphetamine was central to your offending. Nevertheless, you appear
to be an
intelligent man, and an organised and entirely willing participant in the
arrangements.


[12]   Your lifestyle appears
to have been modest, and the perception I have is that
the money you would pay Mr Zhou for the drugs came from other end users or
purchasers rather than from your own resources of funds. In that sense you were a
facilitator and that is why I described you at
the outset as being properly called a
"middle-man".


[13]   It is necessary to consider the sentences imposed on others who have
been
involved in Operation Manu. The starting point fixed for Mr Zhou was 20 years'
imprisonment. I have already indicated his far
more important role in the operation.
The basis on which he was sentenced is that he had supplied 4.2 kilograms of
methamphetamine,
over four times the amount on which you are to be sentenced,
together with large quantities of tablets containing methamphetamine
and ecstasy.

[14]   On 8 May 2009 Mr Huang Chen-Wei and Mr Wei Zhong were sentenced by
Woodhouse J: R v Huang HC AK CRI-2006-019-8458
8 May 2009. In relation to
Mr Wei the total amount of methamphetamine involved was 5.4 kilograms. The
Judge found that he had a significant
hand in initiating the drug dealing. A starting
point was fixed for Mr Wei Zhong at 20 years. In relation to Mr Huang Chen-Wei
the
amount involved was a little over two kilograms. The starting point fixed for
him was 17 years.


[15]   I must also mention the
sentenced imposed on Mr Alan McQuade by
Keene J: R v McQuade HC AK CRI-2006-019-8458 10 September 2008. He was
sentenced on the basis
that 1.5 kilograms of methamphetamine had passed through
his possession. Mr McQuade also dealt with Mr Zhou and appears to have had
a role
not too dissimilar from yours. However, there were a number of aspects of his
offending which made it considerably more serious.
There were two separate lots of
offending. The first occurred in Tauranga and Mount Maunganui, and was not part
of Operation Manu.
It involved the manufacture of methamphetamine and spanned a
period of almost six months. The Operation Manu offending involved 12
offences,
including possession of methamphetamine for manufacture or supply. Guns and
weapons were found in relation to both offending.
In particular, in relation to the
Operation Manu offending, there were two stun guns in his possession. He also
dealt commercially in cannabis and ecstasy. The Judge
fixed a starting point of
17 years and added two years because the second lot of offending was committed
while he was on bail for
the first, and to reflect the totality of the offending.


[16]   It is necessary also to mention some offenders who were lower down
than
you in the scale of offending.        Mr Cai (R v Cai HC AK CRI-2006-019-8458
10 February 2009), was involved in obtaining and
distributing methamphetamine for
Mr Zhou.     There were four possession charges and the amount involved was
28 grams on one occasion,
and 500 CS ecstasy tablets containing methamphetamine
on another. Mr Cai was charged with manufacturing methamphetamine. There was
a starting point of five years' imprisonment fixed for the manufacturing, with an
uplift of two years for the possession charges,
to a total starting point of seven years.

[17]     Finally, in relation to R v Wang HC AK CRI-2006-019-8458 3 March 2009
Courtney
J, there were four charges of possession of methamphetamine, involving
90 grams over a period of a few weeks.          Ms Wang had
been purchasing from
Mr Zhou with a view to supplying others. A starting point of seven years was also
fixed.


[18]     Clearly
your offending was more serious than that of Ms Wang or Mr Cai.
The amounts involved were considerably greater. Your offending was
a lot less
serious than that of Mr Zhou and it was also less serious than that of Mr McQuade.
In relation to Mr McQuade there were
considerably more offences. There was a
greater amount of methamphetamine involved and there were the other aggravating
factors relating
to the culpability of the offending to which I have already referred.


[19]     Having heard the intercepted conversations, you
seem to me to be strangely
removed from the reality and horror of what really happens with methamphetamine.
You were not involved
in sourcing it, save from what was offered to you by your
friend Mr Zhou, and you passed it on to others without any perception or
moral
recognition of what actually happened when the methamphetamine was used in the
market place. It seems that you did use methamphetamine
but the impression that I
have is that you were a modest user.


[20]     Taking into account the need for parity and my assessment
of the nature of
your particular role, I consider that the appropriate starting point is somewhere
between 12 and 13 years' imprisonment.
I do not ignore the fact that you offended
while on bail.     It is an aggravating factor, but in the circumstances I accept
Mr Mansfield's
submission that it should be treated as a minor one of its type. The
offences for which you were on bail were not drug related, and
you were ultimately
not convicted on those counts. This takes away from much of the flagrancy that
might otherwise be involved in
offending while on bail. Including this factor in my
assessment I fix a starting point of 12 years and six months' imprisonment.


[21]     It is now necessary to turn to matters relating to you personally. When you
offended you were approximately 25 years old.
You are now 27. You have lived in
New Zealand since 2003 and have an unblemished record. I have a letter from your

parents and
this confirms what Mr Mansfield has said on your behalf, that you come
from a good family. You are an only child. You came to New
Zealand on a student
visa to study English, and, in a pattern that is seen with disturbing frequency, you
appear to have been introduced
to methamphetamine by your peers, and you have
ended up a serious criminal. To the probation officer you continued to maintain the
innocence you had expressed at trial, with no remorse or insight into your offending.
It seems that you will be deported at the completion
of your sentence.


[22]   You have now, through your counsel, presented the Court with a letter where
you do accept your wrongdoing
and express your regret. Your counsel has said that,
although you do not accept that every transaction involved drugs, you do accept that
many of the
transactions did involve drugs, and you greatly regret your actions. This
is a significant development, which I accept is relevant
to the final sentence that is
imposed on you. I cannot, however, ignore the fact that your acknowledgement and
repentance is very
much at the last minute prior to sentence.


[23]   You are entitled to a credit for your good character and for your remorse. In
the circumstances, I propose imposing an end sentence of 11 years and 3 months'
imprisonment.


[24]   The final question that must
be determined is whether a minimum term of
imprisonment should be imposed pursuant to s 86 of the Sentencing Act. In R v
Huang no
minimum term of imprisonment was imposed. In R v Zhou the ultimate
sentence imposed taking into account the guilty plea was 15 years'
imprisonment,
and a minimum term of imprisonment of eight years was imposed to reflect the
nature and extent of the offending. There
was no minimum term of imprisonment
imposed in R v McQuade. It was recorded by Keane J that there were exceptional
factors in Mr
McQuade's case. He had a major drug problem, and following his
apprehension had committed himself to a number of programmes. His
corrections
officer described the changes he had made to his life as remarkable, and he pleaded
guilty on arraignment.


[25]   The
imposition of a minimum term of imprisonment in R v Zhou was
appealed to the Court of Appeal. That sentence was upheld in a recent
judgment: R v

Zhou  [2009] NZCA 365. The Court found that there was ample justification for the
minimum sentence imposed, while finding that there was not a justifiable
basis for
the non-imposition of such a minimum term in respect of Messrs Wei and Huang, at
[26].   It was stated that the fact that
Messrs Huang and Wei were subject to
deportation because they were not New Zealand citizens was not a factor to which
"any great
weight" could be given, as to treat New Zealand citizens and foreigners
differently in this context could send an unhappy signal
of leniency to foreigners
who were considering drug dealing, at [26]. Ms Cato emphasised the Court of
Appeal's decision, R v Anslow
CA182/05 18 November 2005, where it was held at
[27] that minimum periods are seldom imposed for drug offending when the finite
sentence
is to be less than nine years' imprisonment, but minimum terms are often
imposed when the finite sentence is to be greater than nine
years' imprisonment.


[26]    I turn to the s 86 factors.   The Court will impose a minimum term of
imprisonment if it is satisfied
that the period is insufficient for all or any of the
purposes set out, including holding the offender accountable for the harm done
to the
community, denouncing the offender's conduct, deterring the offender, and
protecting the community from the offender. The
particular factors of relevance here
are holding the offender accountable for the harm done to the community by the
supply of large
quantities of methamphetamine, and the need to denounce the
conduct.     I accept Mr Mansfield's submission that minimum periods
of
imprisonment do not automatically follow a conviction for an amount of
methamphetamine of this quantity, and indeed that is clear
from the way in which
the R v McQuade sentencing was dealt with by the Court of Appeal in R v Zhou.
However, here there are not the
quite exceptional mitigating factors that existed in R
v McQuade. I conclude that a minimum term of imprisonment is necessary to
hold
you, Mr Li, accountable for the harm done to the community by the release of a
kilogram of methamphetamine, and to denounce
your conduct.            This was very
serious drug offending involving a drug which is lethal to our community.


[27]    However,
in fixing the minimum term I do take into account your recently
expressed remorse. I take into account the limitations of your role,
which I have
already discussed, and although it is a minor factor I do not ignore the hardship of

you serving a term of imprisonment
in a foreign country away from your family, and
the factor referred to recently in R v Wang  [2009] NZCA 118, at [15], namely that:

       Where deportation is to follow and elements of community protection do not
       exist, the minimum
term might not in some circumstances be as lengthy as
       otherwise ought to be the case.

[28]   Mr Mansfield has also drawn
my attention to the fact that you were on EM
bail for a period of 15 months. While not irrelevant to the issue of whether a
minimum
term of imprisonment should be imposed, it does not dissuade me in these
circumstances from imposing such a term.


[29]   I therefore
fix a minimum term of imprisonment of five years, approximately
45 percent of your total term.


[30]   The issue of cash found in
your possession arises. I do not consider that the
$8,000 found in your girlfriend's handbag should be forfeited. That $8,000 is
not
forfeited and is to be returned by the police to Fang Fang Yu. The $15,000 found in
your apartment is forfeited to the Crown.


[31]   Stand up please. Mr Li, on the conspiracy to supply methamphetamine count
you are sentenced to seven years' imprisonment.
That is a concurrent sentence.


[32]   On the other counts, mainly supplying methamphetamine (x1) and possession
of methamphetamine
for supply (x4), you are sentenced to a term of imprisonment of
11 years and three months, those terms all being concurrent.


[33]
  You are sentenced to a minimum term of imprisonment of five years.


[34]   The jury was not able to agree on count 4. At the request
of the Crown, I
discharge you under s 347 of the Crimes Act 1961 in relation to count 4, CRN
09004501832.


[35]   It is very unfortunate
that a person of your obvious intelligence and ability is
convicted of such serious offending and sentenced to prison for so long.
I can only
hope that the lessons that you now say you have learned will stay with you, and that

when you are released from prison
you will fulfil the potential you undoubtedly
have.




                                                    ..................................
                                                                            Asher J