Cheng v The King
[2024] NZCA 598
•18 November 2024 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA262/2024 |
| BETWEEN | JIANZHONG CHENG |
| AND | THE KING |
| Hearing: | 7 October 2024 |
Court: | Hinton, Brewer and Osborne JJ |
Counsel: | A Wei and C S Fredric for Appellant |
Judgment: | 18 November 2024 at 11 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Osborne J)
Introduction
Jianzhong Cheng pleaded guilty to 18 charges involving serious drug offending. The offending occurred between April 2020 and April 2021. Judge B A Gibson sentenced Mr Cheng to nine years and six months’ imprisonment.[1] Mr Cheng appeals his sentence on the basis it was manifestly excessive.
The offending
[1]R v Cheng [2024] NZDC 3635 [sentencing notes].
Mr Cheng’s charges arose from a police operation which was focused on the activities of an organised criminal group involved in the laundering of over $10 million in cash obtained from the importation and supply of controlled drugs. Mr Cheng was one of the members of the group involved in the importation and supply of significant quantities of Class A, B, and C controlled drugs.
Mr Cheng was involved in the importation of at least 13.055 kilograms of ephedrine over six separate occasions;[2] 5.826 kilograms of pseudoephedrine on one occasion; and 3.91 kilograms of ketamine over two separate occasions.
[2]The sentencing Judge and the Crown have referred to 17 kilograms of ephedrine. We note the quantity recovered for three of the six importation charges is unknown. The remaining three add to 13.055 kilograms. We therefore refer to “at least” 13.055 kilograms in this judgment.
Mr Cheng was also involved in the supply operation. He was in possession of 956.7 grams of methamphetamine for the purpose of supply; supplied at least 100 grams of methamphetamine over two separate occasions; was in possession of 3.936 kilograms of ephedrine for the purpose of supply; and supplied 9.64 kilograms of ephedrine over five separate occasions.
Mr Cheng was a middleman between a more senior member of the group (Ms Wei) and methamphetamine manufacturers. He received packages, unpacked them, took photographs and videos of the process, and sent those to Ms Wei. He was an integral part of the subsequent supply operation, supplying ephedrine to methamphetamine manufacturers and methamphetamine to customers under instructions from Ms Wei.
Mr Cheng explained the reason for his offending was he had experienced difficulty in paying off a personal debt. He was fully aware that it was drugs he was transporting, and was motivated to do it due to a lack of money. He said he never thought of the social impact of drug abuse on the community.
There is no suggestion that Mr Cheng either uses drugs or has a drug addiction that required funding.
Sentencing notes
The Judge took the methamphetamine offending (Class A) as the lead offending. He identified that, as the offending involved less than two kilograms, it fell within band four of the sentencing bands identified in Zhang v R which carries a sentencing starting range of eight to 16 years’ imprisonment.[3]
[3]Sentencing notes, above n 1, at [5], referring to Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].
The Judge then considered Mr Cheng’s role by reference to the role indicia identified in Zhang. He was satisfied Mr Cheng’s role fell somewhere between lesser and significant in terms of the Zhang analysis.[4] He set the starting point for the Class A offending at nine years’ imprisonment.[5]
[4]Sentencing notes, above n 1, at [12], referring to Zhang v R, above n 3, at [126].
[5]Sentencing notes, above n 1, at [14].
The Judge then considered starting points for the ephedrine and pseudoephedrine offending by reference to three cases involving Class B drugs.[6] The Judge adopted an uplift, on account of both the ephedrine and pseudoephedrine (Class B) offending and ketamine (Class C) offending, of six years, taking into account totality factors.[7]
[6]At [14], considering R v Wallace [1999] 3 NZLR 159 (CA); Keino v R [2019] NZCA 457; and R v Al‑Obidi [2022] NZHC 1274.
[7]Sentencing notes, above n 1, at [14].
The Judge then considered personal mitigating factors and allowed:
(a)20 per cent for guilty pleas;[8]
(b)10 per cent for time spent on electronically monitored (EM) bail from July 2021, with effectively a 24-hour curfew;[9]
(c)no credit for matters of personal background identified in a report under s 27 of the Sentencing Act 2002 (s 27 report);[10] and
(d)five per cent for previous good character.[11]
[8]At [10].
[9]At [11].
[10]At [17].
[11]At [16].
This led the Judge to calculate an “end sentence” of nine years and nine months’ imprisonment, which the Judge then further reduced to nine years and six months’ imprisonment on account of “some small difficulty” Mr Cheng may experience in prison.[12]
Grounds of appeal
[12]At [18].
Mr Cheng asserts the final sentence was manifestly excessive for five reasons:
(a)the adjusted starting point of 15 years’ imprisonment was too high on a totality basis, the Court also having failed to recognise Mr Cheng was a “catcher” and deliveryman rather than an organiser;
(b)the credit for guilty pleas ought to have been 25 per cent;
(c)the Judge erred in not giving credit for background factors identified in the s 27 report;
(d)the credit for previous good character was insufficient and ought to have been 10 per cent; and
(e)the credit for imprisonment difficulties ought to have been at least five to 10 per cent.
Principles on appeal
Section 244 of the Criminal Procedure Act 2011 provides for a right of first appeal against sentence. An appeal against sentence must be allowed if this Court is satisfied there has been an error in the imposition of the sentence and a different sentence should be imposed.[13] It is generally accepted that an appellate court will not intervene “where the sentence is within the range that can properly be justified by accepted sentencing principles”.[14] It is appropriate for this Court to intervene only if the sentence being appealed is “manifestly excessive”.[15]
Analysis
Starting point
[13]Criminal Procedure Act 2011, s 250(2).
[14]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
[15]At [35].
We do not consider there was any error in the total starting point assessed by the Judge.
The quantity of methamphetamine with which Mr Cheng was involved placed his offending, in terms of Zhang, in band four which indicates a starting point between eight and 16 years’ imprisonment.[16] In terms of Mr Cheng’s role, the Judge was correct to reject Mr Cheng’s assertion that he was a “catcher” and “only a driver transporting drugs” and to find that Mr Cheng’s role fell between lesser and significant.[17] Although operating under instruction from Ms Wei, Mr Cheng was, as described by the Judge, an integral part of the supply operation, from the receipt and unpackaging of drugs to dealing with purchases.[18] He clearly had an awareness and understanding of the scale of the operation. He was unaffected by drug addiction.
[16]Zhang v R, above n 3, at [125].
[17]Sentencing notes, above n 1, at [12].
[18]At [3].
These aspects of Mr Cheng’s offending significantly distinguish him from the defendants in the two cases Mr Wei referred to.[19] In R v Minns, the defendant performed a limited function under direction, had limited knowledge or awareness of the scale of the operation, and was motivated primarily by his own addiction. In R v Namoa, the defendant played a minor role and there was no suggestion he was aware of or understood the scale of the operation.
[19]R v Minns [2021] NZHC 638 and R v Namoa [2022] NZHC 3025.
For the combined Class B and Class C offending, we view the uplift of six years’ imprisonment as stern but within range. Mr Cheng’s Class B offending fell within the “major scale, commercial activity” described by this Court in the leading case of R v Wallace, where the appropriate band was identified in these terms:[20]
[30] … [The case law] show[s] that for commercial activity on a major scale the starting point before any allowance for mitigating factors for a principal offender will be in excess of eight years and in the very bad cases up to 14 years, especially where repeat offending is involved. For major offending of this kind there will likely be numerous separate offences so that the 14-year maximum penalty will have little direct relevance to the total offending.
[20]R v Wallace, above n 6.
Mr Cheng’s Class B drug offending, involving as it did 12 offences relating to ephedrine and one of pseudoephedrine, comes within the identified category of cases where the commission of numerous separate offences decreases the direct relevance of the 14-year maximum penalty.
We view Mr Cheng’s Class B offending as substantially more serious than that of the defendant in the main case cited by Mr Wei, R v Al-Obidi. [21] The uplift to Mr Al‑Obidi’s sentence for his remaining offending was two years and six months’ imprisonment. His relevant Class B charges were possession for sale (once) and of sale (once).[22] Mr Cheng was charged with possession for supply, supply, and the importation of at least 26.632 kilograms of ephedrine (the cumulative amount over the 12 offences) and with importing 5.826 kilograms of pseudoephedrine on one occasion (in addition to two importations of ketamine). It is only in relation to the charges of possession and supply that the Class B offending of Mr Cheng and Mr Al-Obidi is comparable. Mr Cheng’s role is correctly identified as between lesser and significant. By contrast, Mr Al-Obidi fell within the category of a “runner” who delivered drugs and collected cash payments, pursuant to instructions communicated by the syndicate organiser.[23]
[21]R v Al-Obidi, above n 6.
[22]At [36]. The uplift also covered possession of a Class C drug for the purpose of manufacturing methamphetamine and associated minor firearms offending.
[23]At [4].
The defendant in R v Macalalad, to whom Mr Al-Obidi was compared in his sentencing, also received an uplift of two years and six months’ imprisonment.[24] He had possessed 14.136 kilograms of ephedrine for sale, in addition to quantities of methamphetamine. Mr Macalalad was described as an occasional “runner” who had become a “storeman”.[25]
[24]R v Macalalad [2020] NZHC 2930.
[25]At [8].
We consider it is more helpful to refer to R v Wang.[26] This Court, in allowing the Crown’s appeal against a sentence relating to Class B drug offending, confirmed that R v Wallace remains the leading authority.[27] Mr Wang was convicted of possession of 11.2 kilograms of pseudoephedrine for the purpose of supply. He was the means by which the importation of the item containing the pseudoephedrine was completed and its contents stored and ready to be passed on to high level distributors. This Court found the High Court’s starting point of five‑and‑a‑half years’ imprisonment was manifestly inadequate, and that a starting point of eight years’ imprisonment should have been adopted.[28]
[26]R v Wang [2014] NZCA 409.
[27]At [21].
[28]At [27].
Reference may also be made to this Court’s subsequent decision in Keino v R.[29] The defendant was involved in the importation of 32.75 kilograms of ephedrine. He said he had opened post office boxes, collected packages from them and handed these on.[30] The sentencing Judge was satisfied Mr Keino had been convicted on the basis of knowledge, not recklessness, and that his offending was in the mid-range of the Wallace eight to 14-year band.[31] This Court upheld a 10-year starting point.[32]
[29]Keino v R, above n 7.
[30]At [7].
[31]At [52]–[53].
[32]At [56].
We consider, had Mr Cheng been sentenced on the Class B and Class C offending on a stand-alone basis, a starting point of 10 years’ imprisonment would have been available. There were two distinct aspects to the activities of the organised criminal group—importing ready-made methamphetamine and supplying it on the one hand, and on the other hand importing pseudoephedrine and ephedrine for supply to methamphetamine manufacturers in New Zealand. This was not a situation which the second tranche of offending was part and parcel of the first. The Class B and Class C offending required distinct treatment in Mr Cheng’s sentencing. But a significant reduction for totality remained appropriate. We consider that by limiting the uplift to six years, the Judge reached an adjusted starting point (15 years’ imprisonment) which was within range, albeit towards the upper end.
Credit for guilty pleas
Mr Cheng was charged in June 2021, pleaded not guilty, and awaited trial. Upon his subsequent request, he was initially to have a sentence indication hearing in September 2023, but it had to be adjourned to November 2023. He declined the sentence indication but pleaded guilty. Mr Wei, on appeal, submitted a full credit of 25 per cent for Mr Cheng’s guilty pleas would have been appropriate because:
(a)the Crown had accepted at the sentence indication hearing that a full credit of 25 per cent would be appropriate were Mr Cheng to enter guilty pleas at that stage;
(b)there was a large volume of disclosure and counsel sought a sentence indication on a negotiated set of charges following disclosure; and
(c)Mr Cheng always wanted to resolve his criminal charges and flagged the possibility of resolution at an early stage.
None of the matters referred to by Mr Wei renders inappropriate the Judge’s exercise of discretion in not allowing Mr Cheng the maximum credit available in terms of Hessell v R.[33] The Judge would have been aware of the timing of Mr Cheng’s guilty pleas and was entitled, having regard to both that and the circumstances of the sentence indication, to set the credit as he did.
Section 27 report
[33]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
The Judge refused any credit on account of matters disclosed in Mr Cheng’s s 27 report because he did not see any nexus between the matters identified in the report and Mr Cheng’s offending. The report identified Mr Cheng as well-brought up and as having had some difficulty through the COVID-19 pandemic. Mr Cheng had experienced financial difficulties because of loss of income and having an overseas debt. The Judge observed that Mr Cheng “simply chose to do what he did and he must now accept the consequences”.[34]
[34]Sentencing notes, above n 1, at [17].
For Mr Cheng, Mr Wei emphasised the s 27 report indicated that Mr Cheng, for cultural reasons, had felt unable to ask his parents for money to assist with his financial situation. Cultural factors were also said to have led to Mr Cheng viewing Ms Wei as his rescuer, trying to help him to transition through his financial crisis.
Mr Wei referred to the sentencing of a co-defendant (Ms Lim)—in her case a s 27 report identifying similar cultural factors was taken into account by a different Judge.[35]
[35]R v Lim [2024] NZDC 11683 at [17] and [20].
The focus in relation to this ground of appeal as advanced by Mr Wei must be whether the Judge erred in concluding there was no nexus between the identified factors and the offending. In Berkland v R, the Supreme Court identified the relevance of an offender’s background in assessing culpability.[36] That background may affect the extent of an offender’s agency.[37] On the basis of the s 27 report, we see no error in the Judge’s conclusion. Mr Cheng’s background was not one of pervasive and persistent social disadvantage which meaningfully affected his agency. Nor could it be said Mr Cheng’s cultural approach to not seeking assistance from his parents or viewing Ms Wei as his “rescuer” materially cut across Mr Cheng’s agency in his decision to become involved in the unlawful importation and supply of controlled drugs.
Credit for previous good character
[36]Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [89].
[37]At [91].
Mr Cheng was 34 years of age when his involvement in serious drug offending commenced. The offending then continued over a 13-month period.
There is no merit in the submission made on Mr Cheng’s behalf that he ought to have received a credit of at least 10 per cent on account of his previous good character. Given the offending led to 18 convictions covering an extended period of time, Mr Cheng was treated generously through a credit of five per cent on account of his good character.
Credit for difficulties of imprisonment
Mr Wei submits asserts there was an error in relation to the credit of three months allowed for the difficulties of imprisonment (identified by him as equating to a 1.7 per cent discount from the starting point of 15 years’ imprisonment). He contends that the Judge ought to have allowed a credit of at least five to 10 per cent on account of the extent to which Mr Cheng’s English language difficulties would make his prison term more difficult.
The basis of this aspect of the appeal is that Mr Cheng is said to speak a very limited amount of English. However, the mere fact he will only be able to communicate in a rudimentary fashion with other prisoners does not mean he will face hardship due to his lack of English language ability.
We do not consider there was any error in the Judge’s approach to this factor. Measured against the starting point, the credit appears very modest. But the Judge appropriately took into account the information contained in the s 27 report. Mr Cheng has resided in New Zealand since 2005. He is described in the s 27 report as having “poor language skills” but the report identifies he has worked in a variety of roles which by their nature require at least conversational English. Most relevantly, he became a self-employed Uber driver in 2018.
The Judge’s decision to provide only a very modest credit for the possibility that there may be “some small difficulty” for Mr Cheng in relation to his English was appropriate.[38]
A manifestly excessive sentence?
[38]Sentencing notes, above n 1, at [18].
Ultimately, the issue on this appeal is whether the sentence imposed by the Judge was manifestly excessive. Although, as we have stated, we view the starting point sentence as within, albeit towards the upper end of the range, the impact of that must be viewed alongside the fact the Judge allowed a five per cent (nine month) credit for previous good character, when we have found such credit was not called for.
We are not satisfied there has been an error in the imposition of the end sentence of nine years and six months’ imprisonment for the range of offending involved, or that a different sentence should have been imposed.
Result
The appeal is dismissed.
Solicitors:
Crown Solicitor, Auckland for Respondent
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