R v Yu [2013] NZHC 3284 (10 December 2013)

Last Updated: 12 February 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2005-004-24153 [2013] NZHC 3284

THE QUEEN

v

YUAN ZHENG YU

Hearing: 10 December 2013

Appearances: N E Walker for Crown

P Kaye for Prisoner

Judgment: 10 December 2013

_{SENTENCING REMARKS OF LANG J}

R v YU [2013] NZHC 3284 [10 December 2013]

[1] Mr Yu, you appear for sentence today having pleaded guilty in this Court to a charge of importing the Class C controlled drug pseudoephedrine. You initially appeared in the District Court on charges of both importing the pseudoephedrine and also being in possession of it for supply. The District Court transferred both charges to this Court. Soon after you appeared for the first time in this Court, you entered a guilty plea to the importation charge. The Crown now offers no evidence on the supply charge, and I discharge you on it pursuant to s 347 of the Crimes Act 1961.

[2] The Registrar has just informed me that a further charge of failing to answer District Court bail was also transferred to this Court. The Crown offers no evidence on that charge either, and you are accordingly discharged on it pursuant to s 347 of the Crimes Act 1961.

[3] The maximum penalty for the charge to which you have pleaded guilty is eight years imprisonment. Had your offending occurred after 8 September 2011, it would have attracted a maximum penalty of 14 years imprisonment. This is because pseudoephedrine was reclassified to a Class B controlled drug at that time.

Background

[4] The charge to which you pleaded guilty arose after you were found in possession of pseudoephedrine at Auckland Airport on 26 November 2005. At that stage you were living in New Zealand, and attending an educational institute as an English language student. You had arrived in New Zealand in 2002 on an educational visa.

[5] At the time of your arrest, you were returning from the five day trip from Auckland to Hong Kong and China. Your offending came to light after a drug dog was attracted to some scent on or about your person. You were searched, and the customs officials who searched you found 2.446 kilograms of ContacNT secreted in condoms in a specially modified belt and in your shoes. ContacNT contains a high level of pseudoephedrine, which is one of the main ingredients used in the manufacture of methamphetamine.

[6] You told the authorities that this was the third occasion on which you had brought pseudoephedrine into New Zealand during 2005. You said that in April and May 2005, you had returned from another trip on which you had acquired pseudoephedrine for a person called Nick. You said you were to be paid the sum of

$9,000 for the pseudoephedrine, but that you never received payment for the pseudoephedrine you brought in. You said that you proposed to sell the “medicine”, as you called it, that you imported in November 2005 to other Chinese persons in Auckland.

[7] The summary of facts records that the pseudoephedrine that you imported would produce between 492 and 739 grams of methamphetamine. At street level methamphetamine sells for between $600 and $1,000. As a result, even if only 492 grams were produced, it would have a value of between $295,000 and $492,000. You said you believed you would receive $9,000 for bringing the pseudoephedrine into New Zealand, and that you intended to use this sum to pay your school fees.

Sentencing Act 2002

[8] In any case in this area, the starting point must be a sentence of imprisonment. This reflects the seriousness with which the courts view the importation of ingredients that may be used in the manufacture of methamphetamine. Deterrent sentences are the only way in which the courts can hope to combat the rising tide of methamphetamine in this country. It is also important that I select a starting point that is broadly consistent with those applied in other similar cases.

Starting point

[9] As counsel agree, there is now a body of case law establishing that starting points for importing pseudoephedrine will generally be between the three and five year mark where the defendant is a courier and not the instigator or mastermind. The amount of pseudoephedrine that is imported will obviously have a bearing on the starting point. Large importations may well attract a much higher starting point.

[10] In R v Zhang,¹ the offender had imported approximately five kilograms of ContacNT. That was sufficient to produce between 750 grams and 1.125 kilograms of methamphetamine. The Judge in that case selected a starting point of four years imprisonment. In R v Ho², the offender had imported 2.75 litres of pseudoephedrine. The Crown calculated that this could produce methamphetamine worth between

$250 and $500,000. The Judge in that case took a starting point of three years six months imprisonment.

[11] Your counsel submits that I should apply a starting point of around three years imprisonment. The Crown contends that a starting point of between three years six months and four years six months imprisonment would be appropriate. I see your offending as less serious than that in Zhang, and broadly consistent with that in Ho. For that reason, I adopt a starting point of three years six months imprisonment.

Aggravating factors

[12] Although you have candidly acknowledged you were involved in two further importations, the Crown does not seek an increase in your sentence to reflect that fact. The Crown submits, and I agree, that it must be offset against any suggestion that you should receive a discount for previous good character.

[13] I now need to consider the extent to which the sentence should be reduced to reflect mitigating factors personal to you.

Mitigating factors

[14] To a large extent, I am hampered in this regard because you absconded in or about April 2006. You then remained at large for the next seven years. During that entire period you were unlawfully in New Zealand, because your visa had expired in

_{2005. You say that you were caring for your girlfriend during this period.}

¹ _{R v Zhang HC Auckland CRI-2005-004-008357, 15 September 2006.}

² R v Ho HC Auckland CRI-2005-092-000567, 12 April 2005.

[15] In August 2013, you voluntarily surrendered yourself to the authorities. Thereafter, you quickly sought a sentence indication. You entered a guilty plea, as I have already recorded, soon after you appeared for the first time in this Court.

[16] Ordinarily, an early guilty plea would attract a discount of around 20 to 25 per cent. That factor must be tempered in your case by the fact that you absconded for nearly seven years. The Crown submits that this means you should only be entitled to a discount of around ten per cent.

[17] I consider that you should receive a discount of slightly more than that, because you voluntarily handed yourself in and then took steps to resolve issues quickly. I propose to allow a discount of seven months, or around 15 per cent, to reflect that fact.

Sentence

[18] On the charge of importing pseudoephedrine to which you have pleaded guilty you are sentenced to two years 11 months imprisonment.

Lang J

Solicitors:

Crown Solicitor, Auckland

Counsel:

P Kaye, Auckland