Ah You v The Queen
[2013] NZCA 116
•15 February 2013
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA64/2012 [2013] NZCA 116 |
| BETWEEN CAM CAU LOT |
| AND THE QUEEN |
| Hearing: 11 April 2013 |
| Court: Stevens, Allan and Clifford JJ |
| Counsel: R M Mansfield for Applicant |
| Judgment: 19 April 2013 at 3.00 pm |
JUDGMENT OF THE COURT
The application for an extension of time within which to appeal against sentence is dismissed.
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REASONS OF THE COURT
(Given by Clifford J)
Introduction
The applicant, Cam Cau Lot, was convicted after a jury trial in the High Court in June 2010 on four charges of offering to supply methamphetamine, two charges of conspiracy to supply methamphetamine and three charges of supplying methamphetamine. Mr Lot had earlier pleaded guilty to possession of a Class B controlled drug. On 17 September 2010 Mr Lot was sentenced by Rodney Hansen J to 12 years’ imprisonment, with a minimum period of imprisonment of five years.[1]
[1] R v Lot HC Auckland CRI-2008-004-18323, 17 September 2010.
Mr Lot now applies for an extension of time within which to appeal against that sentence.[2] Mr Lot’s single ground of appeal is that his previous good character should have been recognised by way of some discount from the 12 year starting point sentence identified by the Judge which, in the absence of any aggravating or mitigating factors personal to Mr Lot, became the end sentence. Mr Lot does not challenge his minimum period of imprisonment.
Application for an extension of time
[2]Mr Lot originally applied for an extension of time in respect of both his conviction and sentence appeals. The application as regards conviction was abandoned shortly prior to hearing.
Any appeal by Mr Lot against his sentence was to be filed within 28 days of 17 September 2010, namely by 15 October 2010. Mr Lot did not file his appeal until 2 February 2012. Mr Lot has not provided an affidavit setting out the reasons for delay in filing, nor did Mr Mansfield address the Court on that matter.
In those circumstances, the Crown opposed the application for an extension. In the absence of any explanation whatsoever as to why this appeal was filed out of time, we decline to grant an extension of time.
We will, nevertheless, deal with the substance of Mr Lot’s appeal as we are satisfied it has no merit in any event.
Facts
As reflected in the unchallenged starting point sentence, Mr Lot’s methamphetamine offending was serious involving methamphetamine exceeding 500 grams.[3]
[3] R v Lot, above n 1, at [43].
More relevant for the purposes of this appeal, the Judge summarised Mr Lot’s personal circumstances in the following way:
[45] You are a 38-year-old man. You were born in Cambodia, arriving in New Zealand when you were about seventeen years of age. You are the youngest in a family of ten, some of whom are deceased but your sister, four brothers and your mother reside in New Zealand. You have four children aged 15, 14, 10 and six. Their mother was your former de facto partner from whom you have been separated for three to four years. And you, as I understand it married your new partner in 2007.
[46] You told the probation officer you did not attend school in New Zealand. You cannot write in English but you can read a little bit. You appear to have had a number of jobs and have also been self-employed as a retailer of fruit and vegetables.
[47] I gain the impression that you are an industrious and hardworking man and I rather suspect that the desire to achieve financial advancement was one of the driving forces behind your offending. In fact, you spoke to the probation officer of financial problems, of dealing with loan sharks and of selling drugs because your business was struggling.
For the purposes of this appeal, Mr Mansfield accepted that that was a fair summary, subject to one matter. Mr Mansfield submitted that the Judge had left out of that description of Mr Lot’s personal circumstances the fact that Mr Lot had no previous convictions. It is clear, however, that the Judge was aware of that fact. When considering the minimum period of imprisonment the Judge commented that he had taken into account the fact that Mr Lot had no relevant or serious convictions when setting the minimum period of imprisonment.[4]
[4] At [53].
We do not think the Judge’s summary is open to that criticism.
Having referred to Mr Lot’s personal circumstances, Rodney Hansen J went on to conclude:
[52] Unfortunately, Mr Lot, none of that provides you with any excuse for your offending. Unlike Mr Nguyen, you have had family support in New Zealand. It cannot be said that you have not had a fair opportunity to advance yourself by legal means. In those circumstances, Mr Lot, there is no basis on which I could apply any discount to your sentence. The sentence I propose to impose is one of twelve years imprisonment.
Appeal point
It was Mr Mansfield’s submission that, as a matter of principle, the Judge should have allowed some discount from the 12 year starting point to recognise Mr Lot’s previous good character and, in particular, the fact that he had no previous convictions. Mr Mansfield went so far as to submit, although a point we need not decide for this appeal, that all offenders who can point to the fact that they have no previous convictions should, by reason of that fact alone, be given a discount on their sentence.
Mr Mansfield argued that the point was not, as the Judge had put it, whether these personal circumstances constituted an “excuse” as regards Mr Lot’s offending. Rather, the question was whether, in their own right, those circumstances should entitle Mr Lot to some discount by reference to the requirement in s 9(2)(g) of the Sentencing Act 2002 for a Court to take into account evidence of previous good character.
Analysis
Contrary to Mr Mansfield’s submissions, and as submitted by Ms Jelas for the Crown, we find no error in principle in the Judge’s approach.
Section 9(2)(g) of the Sentencing Act provides that the Court must take into account any evidence of the offender’s previous good character to the extent it is applicable in the case when sentencing an offender. Mr Mansfield referred us to the leading cases of Davidson v R, R v Findlay and Manawaiti v R in which this Court has discussed the general approach to the application of s 9(2)(g).[5]
[5]Davidson v R [2011] NZCA 356; R v Findlay [2007] NZCA 553; Manawaiti v R [2013] NZCA 88.
As we consider is now well established, however, the approach to be taken in sentencing for serious drug offending to an offender’s previous good character, and other personal circumstances, is of a particular character. In R v Jarden the Supreme Court put it this way:[6]
As the Courts have repeatedly said, and as we emphasise again, in sentencing those convicted of dealing commercially in controlled drugs the personal circumstances of the offender must be subordinated to the importance of deterrence. But this does not mean that personal circumstances can never be relevant.
[6] R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [12].
The Supreme Court then referred to the decisions of this Court in R v Terewi, R v Wallace and R v Harlen, which are to similar effect,[7] before observing:[8]
The personal circumstances of an offender may be relevant either because they contributed in some way to the offending, or on purely compassionate grounds.
[7]R v Terewi [1999] 3 NZLR 62 (CA); R v Wallace [1999] 3 NZLR 159 (CA); R v Harlen (2001) 18 CRNZ 582 (CA).
[8] At [14].
In Jarden, a modest reduction in sentence was allowed on appeal to reflect “the very tragic situation” in which the appellant had found himself shortly before his trial.[9]
[9] At [15].
Here, and as required by s 9(2)(g), the Judge clearly took account of Mr Lot’s personal circumstances. The Judge’s summary shows that he had considered those circumstances carefully. He appreciated that Mr Lot had been a law-abiding and hard working citizen prior to this offending. We acknowledge those matters as well. Having done so, the Judge concluded – in our view correctly – that they were not of such a nature as to make appropriate a discount from sentence in these circumstances. The point perhaps is that, notwithstanding Mr Lot’s efforts to establish a life in New Zealand and to support his family, he would appear to have turned to serious drug offending to resolve financial pressures. In serious drug offending, it is that very type of response that means personal circumstances must be subordinated to the importance of deterrence. But, and in a practical sense of some significance for Mr Lot, the Judge did take those circumstances into account when setting the minimum period of imprisonment.
Therefore, even had we granted an extension of time, we would nevertheless have dismissed this appeal.
Solicitors:
Crown Law Office, Wellington for Respondent
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