R v Li [2014] NZHC 2610 (23 October 2014)

Last Updated: 4 November 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-092-011602 [2014] NZHC 2610

THE QUEEN

v

_{PIK YEE LI}

Hearing:	23 October 2014
Appearances:	B R Northwood for Crown M Kan for Defendant
Judgment:	23 October 2014

_{SENTENCING NOTES OF ANDREWS J}

R v LI [2014] NZHC 2610 [23 October 2014]

[1] Ms Li, you appear for sentencing today having pleaded guilty a charge of supplying the Class B controlled drug pseudoephedrine, as set out in a Crown charge notice dated 29 April 2014. The maximum penalty that may be imposed on you is imprisonment for 14 years.

Relevant facts

[2] Pseudoephedrine is contained in the cold and flu medicine known as ContacNT. What is a set of ContacNT is 1000 of the capsules. Each of those capsules contains .223 grams of granules, of which 90 milligrams is pseudoephedrine. Pseudoephedrine can be used to manufacture methamphetamine.

[3] The charge against you was laid as a result of a Police investigation into a syndicate involved in the importation, supply and distribution of class A and class B controlled drugs, involving monitoring the private communications of a number of people. You were one of these people, along with your partner at the time, Mr Zhang. Between June and October 2013, you supplied 115 sets of pseudoephedrine, in 16 transactions. In the main, the buyers had requested, or ordered, pseudoephedrine from Mr Zhang, and he directed you to arrange to deliver it, and receive the payment which you then gave to Mr Zhang. The investigation showed that you were involved in supplying a total of 24.65 kg of ContacNT to others. The amount of pseudoephedrine you supplied was 10.35 kg, and it would have yielded between 5.175 and 7.76 kgs of methamphetamine.

Personal information

[4] You are a 43 year old woman who moved to New Zealand in 1995. You have two sons who live with you. You receive a sickness benefit as you have been diagnosed with mental health issues. You have no previous convictions.

[5] In your pre-sentence report it is noted that you deny that you knew the drug was illegal at the time as your partner told you they were flu tablets. You said you acted as an interpreter for your partner with English speaking buyers. You never used the drug. The report writer records that you are remorseful and have insight into the behaviour which led to your offending.

[6] You are assessed as being at a very low risk of reoffending and a low risk to the community. You presented as highly motivated to complete a community-based sentence. You have no rehabilitative needs. You consented to a sentence of home detention. The report writer recommends home detention but notes that there is a concern regarding your ability to cope with the restrictive nature of an electronically monitored sentence, given your mental health. However, your own view is that you do not think that the imposition of such a sentence would be detrimental to your health.

Psychological assessment report

[7] Mr Kan referred you to Mr Kirker, a clinical psychologist, for a psychological assessment. Mr Kan has provided a copy of the report to me. Mr Kirker says that you were in a vulnerable position when you met Mr Zhang, and based on what you said, it seems that Mr Zhang may have taken advantage of your predicament (having, at the time, lost confidence in your ability to undertake work following cancer surgery in 2010), exploiting your vulnerability; in particular your uncertain sense of self, possible deficits in your ability to judge a situation, and your wish to have a business, to be loved, and to have a family. Mr Kirker says that it is not indicated that you had any intention to knowingly engage in criminal activity. Mr Kirker says you likely lacked agency to change the situation you were involved in with Mr Zhang. Mr Kirker records that you took out a mortgage on your home for Mr Zhang, and once you had done that you may have thought you needed to continue in your actions.

[8] Mr Kirker notes that following your arrest, you have developed a depressive condition which will not be resolved until your stressors are resolved. You have adopted a coping strategy of social isolation to avoid being taken advantage of. I quote a comment from Mr Kirker’s report, as follows:

It seems there would not be any additional deterrence or negative reinforcement coming from Court imposed punitive measures. Furthermore, it seems that any custodial sentence could have a particularly detrimental effect on Ms Li’s psychological functioning and future wellbeing. It appears that in the interests of her mental health it is important at this point in her life that Ms Li is able to maintain daily face to face contact with her sons and also that she is able to communicate with her mother in Hong Kong.

Affidavit of Ms Li

[9] You have also sworn an affidavit for your sentencing. In your own affidavit, you say that in the past, you volunteered in the Chinese community, helping to translate and/or care for children from your church. In 2005, you discovered that your ex-husband was having an affair. He moved out of the family home and you cared for your two sons alone. You began to suffer depression, panic disorder and hypertension from this point. In 2010 you had major surgery. You have had weak health since this time. In 2011, you met Mr Zhang who was very kind to you. At his request you helped him open a business. You translated documents for him or assisted him with New Zealand businessmen. You put your family home in his name so that he could get a mortgage to invest in his business.

[10] You acknowledge responsibility for your offending and you are deeply remorseful. You said that you allowed yourself to be taken in by Mr Zhang and you were persuaded by him to assist him. You said that into 2013, Mr Zhang became more and more demanding, abusive and neglectful towards you. You said you felt under his control emotionally and financially, as your home was now in his name. You did not keep any of the money from the offending.

[11] As a result of your offending, you have lost your family home as Mr Zhang stopped making mortgage payments when he was arrested. The home was sold by mortgagee sale and you and your children did not receive anything from the sale. You did not receive any payment from Mr Zhang for allowing him to use your house

to obtain a mortgage. You have also lost jewellery that Mr Zhang said he would keep safe for you. You note in your affidavit that you had contemplated suicide.

Sentencing principles

[12] The first step in sentencing you is to establish what we refer to as the starting point. The starting point is the sentence that would be imposed if you had been convicted after a trial in court. The second step is to take that starting point and decide what is the appropriate sentence is for you, for your offending. I do this by considering whether there are aggravating or mitigating features of your offending, that makes it more (or less) serious, that would lead me to impose a sentence that is greater or less than the starting point. I also consider matters that relate to you, personally, because these may also lead me to adjust your final sentence, either upwards or downwards.

[13] In sentencing you I have to take into account the purposes and principles of sentencing. With respect to the purposes of sentencing, I have to hold you accountable – to make you responsible for your offending. I have to consider deterrence – of you and others – and protection of the community. I also have to denounce your offending – that means tell you that your offending is unacceptable in New Zealand society. At the same time, the purpose of sentencing any offender is to help the offender to get back into the community and to be a useful member of it.

[14] There is also a need to protect the community from methamphetamine. The social cost to families and to the community that follows from the use of methamphetamine is destructive, it is devastating, and its effects are seen in the Courts every single day. Pseudoephedrine is the main precursor ingredient for the purposes of manufacturing methamphetamine. It must be recognised that people who supply the ingredients for the manufacture of methamphetamine enable the trade in it to continue.

[15] In your case the relevant principles of sentencing are the gravity of your offending, including your culpability, and the seriousness of your offending in comparison with other types of offences. I must consider the general desirability of consistency in appropriate sentencing levels, and I am directed to impose the least

restrictive outcome that is appropriate in the circumstances. Further, I must take into account any particular circumstances relating to you that mean that any particular sentence would be disproportionately severe.

[16] It is desirable to keep offenders in the community as far as that is practicable with regard to the safety of the community. However, the Court can impose a sentence of imprisonment in order to achieve the purposes of sentencing that are relevant to your case. For the offence on which you have pleaded guilty, the Misuse of Drugs Act provides that there is a presumption that a sentence of imprisonment will be imposed.

Starting point

[17] I come now to counsel’s submissions as to the appropriate starting point. For sentencing involving the supply of pseudoephedrine, a class B controlled drug, I am guided by the Court of Appeal’s decision in R v Wallace and Christie,¹ confirmed recently by the Court of Appeal in R v Wang as appropriate for offending involving class B drugs.²

[18] In R v Wallace and Christie, the Court of Appeal said that for offending which was commercial activity on a major scale, for a principal offender, the starting point will be in excess of eight years and in the very bad cases up to 14 years. For commercial activity on a substantial scale, reflecting sophistication and organisations with operations extending over a period of time, but not involving massive quantities of drugs, the starting point will be in the range of five to eight years. For smaller commercial operations, the starting point will be up to five years’ imprisonment.

[19] For the Crown, in his written submissions, Mr Northwood identified as being aggravating features of your offending the total amount of ContacNT (24.65kg) containing 10.35 kg of pseudoephedrine; he also noted premeditation; commerciality, which is inherent in the amount supplied, being worth between

$920,000 and $1.38 million and potentially yielding between just over 7 kg and

_{7.75 kg of methamphetamine; your role in moving the ContacNT and eventually}

¹ _{R v Wallace and Christie [1999] NZCA 89; [1999] 3 NZLR 159 (CA).}

² R v Wang [2014] NZCA 409.

supplying it to others; and participation in the organised group for distributing pseudoephedrine.

[20] Mr Northwood submitted that your case falls within the first category in Wallace and Christie, in that you were involved in transporting and supplying pseudoephedrine as part of the drug syndicate which imported, supplied and distributed both class A and class B controlled drugs. Mr Northwood accepted, in his oral submissions today, that you were directed by Mr Zhang but submitted that you acted as the middle person in 16 transactions. He submitted that the amount of pseudoephedrine involved is not materially different from that in the case of Wang (which was 11.2 kg), and that was described by the Court of Appeal as “a huge amount”. Mr Northwood submitted that the repetitive nature of your offending demonstrates a higher level of culpability than that of Mr Wang. He submitted that the appropriate starting point is therefore nine to ten years’ imprisonment.

[21] On your behalf, Mr Kan submitted that the appropriate starting point is between six and eight years’ imprisonment, acknowledging the large amount of drugs involved but taking into account your lesser role and the fact that you were manipulated by your co-offender, Mr Zhang. He submitted that the Court should be cautious in assessing the value of the potential methamphetamine yield and you should have the benefit of the lower range of estimates for sentencing purposes.

[22] Mr Kan submitted that your culpability falls between the upper end of the middle group and the lower end of the highest group in Wallace and Christie. He submitted that you were essentially involved in the transactions only as a result of your relationship with Mr Zhang, completely under his control and acting at his direction, and there is no evidence to suggest you were involved in the planning or organisation of the wider network. He also submitted that commerciality should not be treated as a particular aggravating factor because you, personally, have not benefitted from any extravagant lifestyle funded by the offending, as all the money went to Mr Zhang. You trusted Mr Zhang, and suffered as a result, having lost your home and pieces of jewellery as a result of your involvement with Mr Zhang.

[23] The most relevant authority for the starting point for your sentencing is the Court of Appeal’s recent judgment in Wang. In the High Court, Mr Wang was sentenced on one count of possessing the class B drug pseudoephedrine for supply.³

He had 35.32 kg of ContacNT granules, amounting to 11.2 kg of pseudoephedrine, and he was described by the High Court Judge as being at the lower end of the chain of offending - as, what is known as a “catcher” – but not at the lowest level of involvement. The ContacNT was contained in a commercial oven that was shipped to Auckland. Mr Wang’s address was provided for delivery. In the High Court, a starting point of five years and six months’ imprisonment was adopted.

[24] The Court of Appeal Court considered that Mr Wang’s offending fell within the band of the most serious offending in Wallace and Christie, requiring a starting point of between eight and 14 years’ imprisonment. The Court said that an offender who was a “prime mover or major player would have attracted a starting point of

around 12 years’ imprisonment.”⁴ The Court of Appeal said that eight years’

imprisonment was the lowest starting point available for Mr Wang, as he was the means by which importation could be completed and the drug stored and held ready to be distributed. As the Court of Appeal put it, Mr Wang “played a crucial role in introducing a huge amount of the class B controlled drug to market.”⁵

[25] I do consider that there is a distinction to be made between your culpability and that of Mr Wang. A smaller amount of ContacNT was involved, and you were not, yourself, responsible for receiving the importation into New Zealand, as Mr Wang was. After considering the circumstances in each case carefully, I have concluded that the appropriate starting point must be seven years six months’ imprisonment.

Adjustments to the starting point

[26] I turn to consider what adjustments should be made to the starting point. Mr Northwood submitted that there are no aggravating factors relevant to you

_{personally, and also submitted that you are entitled to a discount as you have co-}

³ _{R v Wang [2013] NZHC 3259.}

⁴ _{R v Wang (CA), above n2 at [24].}

⁵ At [25].

operated with the authorities and have provided, and will provide, assistance. Your assistance is described as being substantial. Mr Northwood submitted that it would be open to me to apply a total discount, for your assistance and your guilty plea, of not less than 50 per cent. Mr Northwood also accepted that it is open to me to apply a discount for your particular personal factors.

[27] Mr Kan has spoken very persuasively on your behalf. He submitted that you should receive a discount for your personal circumstances. These are that you were manipulated by Mr Zhang and have a previous good character. You were in a vulnerable position when you entered the relationship with him – you were raising two sons on your own, you were suffering from cancer and had had major surgery. Given your previous good character, it could be assumed that you would not have been involved in this offending if there were not the influence of Mr Zhang. Your vulnerability and manipulation by Mr Zhang, Mr Kan submitted, are mitigating factors distinguishing your case from that of someone who entered drug dealing activity willingly and fully appreciating and accepting the risks of that involvement. He submitted that the courts have considered the influence of a domineering partner

as a mitigating factor in sentencing.⁶

[28] Mr Kan submitted that a further mitigating factor is the fact that you had no personal gain from the offending. A further mitigating factor, he submitted, is that you have been diagnosed recently with a depressive disorder. This is relevant in terms of s 8(h) of the Sentencing Act, as it is a circumstance which may make a lengthy period of imprisonment disproportionately severe on you. You have expressed remorse. Mr Kan also noted the comment in your pre-sentence report that you are at a very low risk of reoffending. He noted today that that is the first time in his experience that he has read such an assessment. Mr Kan submits that your significant personal mitigating factors can be taken into account, despite this being

drug offending, as recognised in R v Guthrie.⁷

[29] Mr Kan submitted that, in addition to discounts for those personal factors, you should receive a full 60 per cent discount for your guilty plea and assistance to

⁶ _{See R v Niazi HC Auckland CRI 2004-092-4373, 28 April 2005 at [83]–[85].}

⁷ R v Guthrie [2008] NZCA 439.

the authorities. He also noted the steps you had already taken, and are committed to taking in respect of that assistance.

[30] In Wang, the Court of Appeal said that the discount (of 12 months) that had been allowed in the High Court for Mr Wang’s previous good character was contrary to principle. The Court observed that “there is clear authority ... that previous good character can hold little weight in relation to drug offending of this kind.”⁸ However, it is not the case that personal circumstances can never be taken into account, as was confirmed by the Supreme Court in Jarden v R.⁹ The Supreme Court went on to say that personal circumstances can be taken into account if they contributed in some way to the offending, or on purely compassionate grounds.¹⁰ And in Guthrie, the Court of Appeal noted that under s 8(h) and (i) of the Sentencing Act, the Court is obliged to take the particular personal circumstances of the offender into account.¹¹

[31] In your case, I have concluded that there are three matters that I must take into account. First, I accept that you were under the influence of, and dominated by, Mr Zhang. I accept Mr Kan’s submission that were it not for his domination over you, you would not have offended. Secondly, your previous good character is demonstrated not only by the fact that you have no previous convictions, but also by the fact that, as a volunteer in your community, you have made a positive contribution to society generally. Thirdly, I accept that a significant discount must be applied on account of the serious health issues from which you have suffered, and continue to suffer. I accept that those issues had an impact on your offending. In respect of those three factors, I will apply an overall discount of 30 percent from the starting point. That leads to an adjusted starting point of five years three months’ imprisonment.

[32] I come then to the assistance you have given to the authorities, and the further assistance you have undertaken to give. You are also entitled to a significant

_{discount for your guilty plea, which the Crown accepts should be for the maximum}

⁸ R v Wang (CA), above n 2 at [28], citing R v Anslow CA182/05, 18 November 2005 at [30] and

_{R v Aram [2007) NZCA 328 at [78].}

⁹ _{Jarden v R [2008] NZSC 69, at [12].}

¹⁰ _{At [14].}

¹¹ R v Guthrie, above n 7 at [17].

available amount. For those two matters combined, I will apply a further discount of

50 per cent, leading to a final adjusted sentence of two years and seven months’

imprisonment.

[33] Finally, I have stood back and considered whether that would be the appropriate sentence for your offending and for you. I acknowledge that significant discounts have been applied to the starting point. However, I am satisfied that each element of the discounts I have applied is justified in the particular circumstances of your case, and your own particular circumstances. Each individual discount is constrained, because I have been mindful of considering the justice of your overall sentence.

[34] Because the sentence I have arrived at is greater than two years, such a sentence would not allow me to consider whether to impose home detention rather than imprisonment. I am mindful of Mr Kan’s submission as to the impact on you and your family of a sentence of imprisonment, but I am satisfied that is the appropriate sentence and it is the sentence that is required in your case. As the Court of Appeal said in Wallace and Christie, it is particularly important to deter offending

by dealing in drugs, given the potential harm of those drugs to vulnerable people.¹²

The harm caused by pseudoephedrine and methamphetamine is significant, and it is well known. Any lesser sentence for your offending would not appropriately recognise that.

Sentence

[35] Ms Li, would you please stand.

[36] Ms Li, on the charge of supplying the class B controlled drug pseudoephedrine you are sentenced to imprisonment for two years and seven months.

[37] I record that the Crown charge notice replaces the Crown prosecution notice dated 12 February 2014, which sets out 19 charges. On those charges the Crown

¹² R v Wallace and Christie, above n 1 at [25].

offers no evidence and you are discharged pursuant to s 147 of the Criminal

Procedure Act 2011.

_{[38] Please stand down.}

Andrews J