Cai v R
[2012] NZCA 293
•5 July 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA801/2011 [2012] NZCA 293 |
| BETWEEN JINHUI CAI |
| AND THE QUEEN |
| Hearing: 18 June 2012 |
| Court: White, Lang and Clifford JJ |
| Counsel: F C Deliu for Appellant |
| Judgment: 5 July 2012 at 10.30am |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by White J)
Introduction
The appellant pleaded guilty in the District Court at Auckland on 6 October 2011 to the following charges:
(a)one charge of importing a Class C controlled drug into New Zealand, namely ephedrine and pseudoephedrine;
(b)one charge of possessing for the purpose of sale a Class C controlled drug, namely ephedrine and pseudoephedrine; and
(c)one charge of selling a Class C controlled drug, namely ephedrine and pseudoephedrine.
Each of these charges under the Misuse of Drugs Act 1975 carried a maximum penalty of imprisonment of eight years.
The appellant was sentenced by Judge Kiernan to six years two months’ imprisonment on each of the offences to be served concurrently.[1] In doing so she took the importation charge as the lead offence and adopted a starting point of seven years’ imprisonment based on the serious nature of the offending and the appellant’s culpability. She took into account his role relative to his co-offenders, the quantity of drugs involved (67 kilograms), the value of methamphetamine able to be manufactured from the drugs imported (over $10 million), and a sentence indication which she had given in July 2011 and which had not been accepted by the appellant.[2] The Judge then uplifted the sentence to seven years six months for the appellant’s previous conviction for importation of ContacNT and, after referring to his personal circumstances and the effect of a prison sentence on him and his family, reduced the sentence by one year and four months (18 per cent) to reflect his guilty plea, which was entered on the eve of his trial.[3]
[1] R v Cai DC Auckland CRI-2010-004-6923, 15 November 2011 [R v Cai Sentencing Notes].
[2] At [2]–[7], [13] and [15].
[3] At [8]–[10], [12], and [14]–[16].
The appellant appeals against his sentence on five grounds:
(a)the Judge adopted a starting point that was too high for the circumstances of the offending and the offender;
(b)the Judge erred in accepting the street value for pseudoephedrine that was contained in Crown submissions when there was no evidential basis provided by the Crown for that street value;
(c)the Judge imposed a sentence that was disproportionate to the sentence imposed on Mr Cai’s co-offenders;
(d)the Judge gave insufficient credit for Mr Cai’s remorse; and
(e)the Judge had insufficient regard to the effect the length of the custodial sentence would have on the immigration status of the appellant and his family.
The appellant also seeks leave to adduce fresh evidence on appeal in the form of affidavits from himself, his wife and an immigration lawyer, in support of the fourth and fifth grounds of appeal.
We deal with the first three grounds of appeal together because, as Mr Deliu accepted, they are all related to the issue of the appropriate starting point for the sentence.
Factual background
The essential factual background to the offending is not in dispute. Judge Kiernan summarised it as follows:
[2] The facts set out in the summary are lengthy. Essentially there was a police operation investigating a large scale importation from China and the subsequent sale and supply in New Zealand of the Class C drug pseudoephedrine in the form of Contac NT. The police operation was an electronic operation concerning intercepted telephone calls, and it was also a surveillance operation. The principal alleged offenders were Mr Huang, Mr Yu, and Ms Dickson. Your [the appellant’s] role in the offending, which you have accepted, was at a lower level and you like others before the Court could be regarded as a “catcher”. However, your culpability I will assess as at the higher level of those who were being controlled by the principals.
...
[5] There are other accused who are yet to be either sentenced or tried. Your involvement in the events I summarise as follows. You were involved in corresponding with the freight operators about the receipt of the containers. A ship had arrived in Auckland on 1 March 2010. In a container on that ship were pallets of granite. Some of these had cavities cut out of them and Customs’ examination revealed ephedrine and pseudoephedrine in granules. The total weight was 67 kilograms of pseudoephedrine. You were involved in corresponding with the freight operators about receipt of the containers in which these items were, that was before they arrived in New Zealand. Once the containers were in the country you were closely involved with enquiries relating to Customs’ clearance.
[6] It was you Mr Cai who sent documents to the custom broker and it was you who arranged for payment of the clearance fee which was actually made by Mr Shan. So you were closely involved with the Customs’ clearance process. You also arranged transport for the containers and the slabs, and once the delivery had been effected, with you following closely after the delivery trucks, you were found by police and Customs with some of the others in the act of using tools to extract the drugs from the granite.
...
[13] The aggravating features Mr Cai that I must identify are that this was clearly offending on a commercial scale. Importation of 67 kilograms of pseudoephedrine, potentially when used in the manufacture of methamphetamine resulting in over $10 million worth of that drug. It was clearly premeditated and planned offending in which you appear to have had a significant role. I also must take account as a matter of aggravation your previous conviction for drug importation, although that was clearly at the lower end of the scale since you only received a community-based sentence.
We should say immediately that we accept that there was no evidential basis for the reference by the Judge to the figure of over $10 million worth of methamphetamine potentially resulting from the importation of 67 kilograms of ephedrine and pseudoephedrine (the imported drugs). As the Crown quite properly acknowledged, the figure of $10 million came from submissions for the Crown on sentencing and was not supported by evidence before the Court or information in the Police summary of facts to which the appellant had pleaded guilty. In these circumstances a figure of that amount ought not to have been taken into account by the Judge.[4]
[4]Sentencing Act 2002, s 24(1)(a); and Practice Note – Sentencing 2003 [2003] 2 NZLR 575 at [3.3].
At the same time, however, the figure of 67 kilograms was referred to in the Police summary of facts and therefore, in the absence of a request for a disputed facts hearing, accepted by the appellant when he pleaded guilty.[5] Moreover, the appellant has taken no issue with the Judge recording in her sentencing notes that 67 kilograms was the amount imported.[6] On the basis of that figure and other information in the summary of facts relating to the value of various quantities of imported drugs and methamphetamine, there is little doubt that the drugs imported by the appellant and his co-offenders had a very substantial value.[7] Mr Deliu, counsel for the appellant, calculated a figure of $4.5 million.
[5] Sentencing Act, s 24.
[6] At [5].
[7]Compare R v Qiu CA202/06, 17 October 2006 at [4] (4.7 kilograms of ContacNT with a potential methamphetamine yield of 923 g to 1.358 kg valued at $923,000 to $1.385 million).
Taking into account the quantity of drugs imported and the fact that they had a very substantial value, we do not consider that the Judge erred in a material way in referring to a figure not mentioned in the summary of facts. Nor do we consider that it could be said that the sentence imposed was manifestly excessive on this ground alone. The figure referred to by the Judge was also taken into account in sentencing a number of the appellant’s co-offenders.[8]
The starting point
[8] R v Chen DC Auckland CRI-2010-004-6923, 17 October 2011 at [10].
We turn then to the question whether the starting point adopted by the Judge for sentencing the appellant was too high, taking into account the circumstances of the offending and the offender, particularly in light of the sentence imposed on his co-offenders.
On the basis of the information provided in the undisputed Police summary of facts as summarised by the Judge, it is clear that the appellant’s role in the offending was significant in that it involved dealing with customs, arranging transportation, accompanying the delivery trucks, communicating with Mr Yu, and assisting with unpacking the drugs. At the same time his role was considerably less than that of Mr Huang (the mastermind) and Mr Yu (Mr Huang’s lieutenant who directed others, including the appellant, further down the chain),[9] but more than that of:
(a)Mr Shan, who was the appellant’s assistant and who put the money into the bank for the customs clearance and helped to unpack the drugs;[10]
(b)Mr Chen who was involved with the transportation and unpacking of the drugs;[11] and
(c)Mr Kao whose culpability was at a lower level than that of Mr Shan.[12]
[9]R v Yu DC Auckland CRI-2010-004-6923, 7 October 2011 [R v Yu Sentencing Indication] at [5]–[6]; and R v Yu DC Auckland CRI-2010-004-6923, 15 March 2012 [R v Yu Sentencing Notes] at [9].
[10]R v Cai DC Auckland CRI-2010-004-6923, 20 July 2011 [R v Cai Sentencing Indication] at [18]; and R v Chen at [13].
[11] R v Chen at [32].
[12] R v Cai Sentencing Indication at [25]; and R v Chen at [22].
Mr Deliu submitted, however, that the District Court Judge had misapplied the “tariff” decision of R v Ho[13] when adopting a starting point of seven years’ imprisonment for the appellant compared with starting points of seven and a half years’ imprisonment for Mr Yu,[14] six years’ imprisonment for Mr Shan,[15] six years’ imprisonment for Mr Chen,[16] and four and a half years’ imprisonment for Mr Kao.[17] Mr Deliu submitted that on the basis of R v Ho category two offending, as submitted by the Crown in the District Court, and the sentences imposed on the co-offenders, whose culpability was not as dissimilar as suggested by the Judge, the starting point for the appellant should have been significantly less than seven years’ imprisonment. He submitted that this was necessary in order to ensure consistency as required by s 8(e) of the Sentencing Act 2002 and to avoid disparity in accordance with R v Lawson[18] and Eketone-Mahara v R.[19]
[13] R v Ho HC Auckland CRI-2005-092-567, 12 April 2005.
[14] R v Yu Sentencing Indication at [10]; and R v Yu Sentencing Notes at [19].
[15] R v Cai Sentencing Indication at [20]; and R v Chen at [12] and [20].
[16] R v Chen at [40].
[17] R v Cai Sentencing Indication at [26]; and R v Chen, at [29].
[18] R v Lawson [1982] 2 NZLR 219 (CA) at 223.
[19] Eketone-Mahara v R [2011] NZCA 71 at [25].
Judge Kiernan referred to R v Ho in the context of summarising the Crown’s submissions on sentencing. She said:
[11] The Crown submissions previously urged the Court to take a starting point of eight years’ imprisonment and uplift that by six months for the previous conviction, and then allow a 20 percent reduction for your pleas. The Crown also asked the Court to consider a minimum period of imprisonment. The Crown submitted that your offending might sit within category 2 as it is known of R v Ho, a High Court decision setting out some suggested tariffs for this sort of offending.
As Mr Deliu accepted, Judge Kiernan was not in fact indicating that she accepted that the appellant’s offending was within category two in R v Ho. She was simply recording the Crown submissions.
In R v Ho Winkelmann J identified the following categories of offending in this context:
[23] I am also assisted in setting a starting point by the case of R v Wickremasinghe (HC Auckland, T013408, 28 March 2003) where Chambers J described two categories of importation of class A drug offending. Those categories seem to me to have application in the case of class C importation, although of course with necessary modification downward of the starting ranges. Category 1 identified by Chambers J included those in the top level, the instigators, masterminds, prime movers and controllers. A range of 16-18 years was identified for that category of offending for class A. Category 2 included people who are still crucial players but are not the instigators, masterminds, prime movers and controllers, although they are people without whom the enterprise could not be brought to fruition. Chambers J suggested a starting point of 12 to 13 years in respect of this category of offending for class A drugs. In respect of a class C importation, I would estimate a starting point of 6-7 years imprisonment for category one offending, and 3-5 years for category two.
As this Court has pointed out subsequently,[20] Winkelmann J was not purporting to set tariffs and there are now more relevant appellate decisions such as R v Xie[21] and R v Qui, to which we have already referred,[22] where a starting point of five years’ imprisonment was upheld for the importation of 4.7 kilograms of pseudoephedrine.[23]
[20] R v Lin [2010] NZCA 141 at [22].
[21] R v Xie [2007] 2 NZLR 240 (CA).
[22] See above n 7.
[23] At [4] and [18].
In our view the principal issue on this appeal is whether the starting point of seven years’ imprisonment correctly reflected the appellant’s role in the offending when compared with the roles of his co-offenders, particularly Mr Yu (with a starting point of seven and a half years’ imprisonment for his role in this offending and other unrelated offending)[24] and Messrs Shan and Chen (both with starting points of six years’ imprisonment). We consider that Judge Kiernan correctly characterised the relative roles of the offenders, but erred in then placing the appellant closer to Mr Yu than to Messrs Shan and Chen. Mr Yu’s role and hence culpability in this offending, as the lieutenant of the mastermind (Mr Huang), was clearly significantly greater than that of the appellant and Messrs Shan and Chen. While the appellant’s role and culpability was greater than that of Messrs Shan and Chen, it was not so much greater that his starting point should have been closer to Mr Yu than to them. This is particularly so when it is recognised that the starting point for Mr Yu also reflected his other unrelated offending. We would therefore have assessed the appropriate starting point for the appellant at six years six months’ imprisonment.
Further adjustments
[24] See above, at [12].
Like Judge Kiernan, we would then have uplifted the starting point by six months for the appellant’s previous importation conviction giving a sentence of seven years’ imprisonment.
Unlike Judge Kiernan, however, we would not have given a discount of 18 per cent for the appellant’s eve of trial guilty plea. In our view, taking into account the sentence indication given in July 2011,[25] when a discount of 20 per cent for a guilty plea was indicated, and the very strong Crown case, a reduction of only two per cent in the discount was overly generous. Applying the approach mandated by the Supreme Court in Hessell v R,[26] a discount of 10–12 per cent would have been appropriate in these circumstances. This would also be appropriately less than the 15 per cent discount the Judge gave Mr Yu for his guilty plea, which was entered after his sentence indication and not on the eve of trial, and included remorse.[27]
[25] R v Cai Sentencing Indication at [10].
[26] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [73]–[77].
[27] R v Yu Sentencing Notes at [2] and [18]–[19].
Adopting a discount of 12 per cent would then give an end sentence for the appellant of six years two months’ imprisonment, which was the end sentence imposed by Judge Kiernan.
Remorse?
On the issue of whether there ought to have been a further discount for the appellant’s remorse, Mr Deliu is correct when he submits that the Judge did not consider that a further discount was appropriate on that ground. Judge Kiernan said:
[14] In mitigation, so in your favour, of course your guilty pleas deserve credit. I have read in the Probation report and your lawyer has expressed on your behalf regret and remorse. Clearly, you are sorry that what you have done has impacted on your family. I am not able to give any additional credit though as mitigation for that regret.
The correct approach to the issue of remorse is described in Hessell v R:[28]
[63] The Court of Appeal also decided that, in general, remorse should not be considered independently of the guilty plea. This reflected the disputable view that a plea is “the most compelling evidence of acceptance of responsibility, remorse and contrition”. The Court of Appeal thought that if remorse could justify a separate discount it would be impractical for judges to refuse to recognise unsubstantiated claims of remorse. Treating remorse separately could lead to “discount creep” and increase discounts above the set points on the Court’s sliding scale. As well, a general rule that the guilty plea discount incorporated remorse would also maintain the predictability of the discount. The Court did, however, accept that “exceptional remorse” demonstrated in a practical and material way could attract its own credit.
[64] This approach does not fit in well with the terms of the 2002 Act, which treats “any remorse shown by the offender” as a mitigating factor that is separate from the guilty plea. The statutory requirement that remorse be “shown” adequately addresses the Court of Appeal’s concerns. Remorse is not necessarily shown simply by pleading guilty. Sentencing judges are very much aware that remorse may well be no more than self pity of an accused for his or her predicament and will properly be sceptical about unsubstantiated claims that an offender is genuinely remorseful. But a proper and robust evaluation of all the circumstances may demonstrate a defendant’s remorse. Where remorse is shown by the defendant in such a way, sentencing credit should properly be given separately from that for the plea.
[28] Footnotes omitted.
Following this approach, we agree with Judge Kiernan that any remorse on the part of the appellant was focussed on himself and his family as a result of his offending and the inevitable sentence of imprisonment rather than on the impact on society and the wider consequences of his drug offending. As the writer of the appellant’s pre-sentence report recognised, the appellant showed little remorse in the latter sense. An absence of real remorse in this sense is also reinforced by reading the affidavits filed by the appellant in support of his appeal, which again focus on his own predicament and the effect on his family of his sentence.
No further discount for remorse should therefore be made.
The immigration consequences
The appellant’s final ground of appeal related to the immigration consequences for himself and his family as a result of the length of the prison sentence imposed on him. Mr Deliu submitted that, with a term of imprisonment exceeding five years, the appellant faced “an almost inevitable deportation” back to China together with his wife and their first child, both of whom are Chinese nationals currently applying for permanent residency here. Their second child, however, who is a New Zealand citizen with no lawful status in China “could very well become a ward of the state losing her entire family”. Mr Deliu referred to the affidavit evidence from the appellant, his wife and the immigration lawyer filed in support of the appeal to support his submission as well as to decisions which have recognised that a court may be prompted by mercy.[29]
[29]R v Wihapi [1976] 1 NZLR 422 (CA) at 424; and Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [13].
Mr Deliu is right that a New Zealand resident, such as the appellant, who holds a residence class visa and who, within ten years of becoming a resident, commits an offence resulting in imprisonment for five years or more, is liable for deportation.[30] Mr Deliu is also right that when sentencing a person for a criminal offence a court or judge may in appropriate circumstances exercise mercy by recognising the particular personal or family situation of the offender.
[30] Immigration Act 2009, s 161(1)(c).
In the appellant’s case, however, when the appropriate sentence for his offending is a term of imprisonment of six years two months, this Court could not justifiably re-sentence him to a term of imprisonment of less than five years so as to avoid the immigration consequences which flow inevitably from the imposition of the correct sentence. In the course of argument before us, Mr Deliu accepted that unless the final sentence could be reduced to one close to five years’ imprisonment further consideration of the personal situation of the appellant and his family would not arise.
It is also well-established by decisions of this Court that the immigration consequences of offending are not normally relevant to sentencing.[31] The reason for this was explained in R v Sabuncuoglu:
[34] On appeal this Court held that the Judge had been in error in making the reduction. Its reasoning was encapsulated at paragraphs [12] to [16]. In brief, the Court relied on R v Appitu CA 31/98, 29 April 1998 and R v Ahlquist [1989] 2 NZLR 177 to emphasise that the function of the Courts in their criminal jurisdiction is to impose sentences which are appropriate to the particular offending, which should not be adjusted so as to take account of other processes which have their own bases and established regime. The Courts must also maintain consistency of sentencing and not differentiate between convicted persons or according to their country of origin or the consequences which would flow following their release.
Result
[31]R v Zhang CA56/05, 24 May 2005 at [13]–[14]; R v Sabuncuoglu [2008] NZCA 448 at [34]; and R v Ondra [2009] NZCA 489 at [7]–[11].
For the reasons given, we are not persuaded that the sentence imposed in the District Court was manifestly excessive. The appeal against sentence is therefore dismissed.
Solicitors:
Lucy Chu, Auckland for Appellant
Crown Solicitor, Auckland for Respondent
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