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