Cheung v R
[2021] NZCA 175
•11 May 2021 at 1.00 pm
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| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA415/2020 [2021] NZCA 175 |
| BETWEEN | KAI YIP CHEUNG |
| AND | THE QUEEN |
| Hearing: | 9 March 2021 |
Court: | Kós P, Miller and Collins JJ |
Counsel: | JEL Carruthers and S J Bird for Appellant |
Judgment: | 11 May 2021 at 1.00 pm |
JUDGMENT OF THE COURT
A The application for an extension of time is granted.
B The appeal is allowed in part.
CThe order for a minimum period of imprisonment is quashed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
For trafficking in methamphetamine Mr Cheung was sentenced in 2017 to a term of 15 years, five months’ imprisonment with a minimum period of imprisonment of nine years.[1] He now wants to appeal his sentence.
[1]R v Cheung [2017] NZHC 914.
Because his right of appeal expired three years before he filed his papers, Mr Cheung needs the Court’s permission, in the form of an extension of time. He says the delay is excusable and the appeal has merit: the sentence was calculated in error, the starting point of 25 years was too high, and the minimum period of imprisonment was unwarranted.
The claim that the sentence was calculated in error raises an issue about the retrospective application of the two-step sentencing methodology adopted in the Court’s 2020 decision in Moses v R.[2] Mr Cheung says that Moses was an ordinary overruling of an earlier judgment of the Court, Hessell v R,[3] and so operates retrospectively under the declaratory theory of law. The Crown disagrees. It says that as a guideline judgment Moses operates prospectively and it should be applied to a past sentence only when it is apparent that the sentence was materially wrong and there are special circumstances. It opposes the extension of time in Mr Cheung’s case, saying the delay is not adequately explained and the sentence was not manifestly excessive.
Mr Cheung’s sentence
[2]Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381.
[3]Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298 [Hessell (CA)].
We record that Mr Cheung was sentenced on 9 May 2017 under the applicable guideline judgment at the time, Fatu v R.[4] This Court has since updated methamphetamine sentencing guidelines in Zhang v R, but that judgment states that it applies to all sentencing that takes place after 21 October 2019.[5] It is common ground that Fatu applies to this case.
[4]R v Fatu [2006] 2 NZLR 72, (2005) 22 CRNZ 410.
[5]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [187].
Mr Cheung was one of a group of offenders who imported very large quantities of methamphetamine in 2016. The offending was sophisticated and of some duration. Containers containing scaffolding were shipped to a company, Hong Jun International Trading Ltd, that was set up in New Zealand for the purpose of receiving them. Methamphetamine was secreted in the containers’ door-locking rods, which were dismantled at a warehouse leased by the company. This method had been used on four occasions before the importation with which Mr Cheung was charged.
The moving force behind the operation appears to have been a Hong Kong national, Kam Tong Lee. After he was refused entry to New Zealand in July 2015 he delegated control of importations to Choo San Teh, who was later charged with Mr Cheung. Mr Teh handled all of the paperwork required for the importation of scaffolding and made lease payments on the warehouse, which had been leased for a term of six years.
Mr Cheung arrived in New Zealand on 13 December 2015, ostensibly for a ten‑day holiday. He was with another man, Cho Fai Chu, who left New Zealand on 23 December 2015. Mr Cheung, who was aged 19, did not leave. He obtained a student visa and in March 2016 he enrolled in a three-month English language course. He received three warning letters for poor attendance and did not sit any final assessments. He remained in New Zealand after completing the course. He later admitted that his living expenses were funded by Mr Chu, who offered him an opportunity to make money in New Zealand. He knew this would involve drugs.
Hong Jun International Trading imported containers on 17 February and 2 March 2016, after Mr Cheung had arrived in New Zealand, but he was not ultimately charged in relation to these importations.
On 6 July 2016, a container vessel arrived in New Zealand carrying ten containers for the company. In total, they held 176 kg of methamphetamine. Its street value was in the range $70 million to $212 million. The importation was monitored, including cellphone traffic among the offenders. A search warrant executed at Mr Cheung’s residential address resulted in the seizure of phones, a lease agreement for the warehouse and a document detailing the individual parts of a container door rod. When confronted with records, Mr Cheung admitted that he had been paid for his work for Hong Jun International Trading. He faced one charge of importing methamphetamine.
Mr Cheung maintained that he intended to study English and initially believed his role would be only short-term. He claimed he had told Mr Chu he no longer wanted to be involved once he realised his role would be lengthier. He tendered references from family and others who deposed to his good character.
The Judge reviewed the facts, noting that Mr Cheung had said he wanted to make some “fast and easy money”.[6] Mr Cheung had not come to New Zealand to study English; his priorities were elsewhere. The Judge made it clear that he would not take the previous importations into account, however. Mr Cheung had been charged in relation only to the 176 kg imported in July 2016. That was a staggering quantity, qualifying as one of the largest seizures in this country. He noted the maximum sentence, life imprisonment, but said he would not adopt it having regard to Mr Cheung’s age, lack of previous convictions, guilty plea and “supporting rather than managerial role”.[7]
[6]R v Cheung, above n 1, at [5].
[7]At [17].
The Judge did not accept a submission that Mr Cheung’s role was analogous to that of a catcher or mule. The operation was set up by others, but Mr Cheung assisted in the importation and extracted the drugs from the containers. His job was “to follow orders and do the risky work”.[8]
[8]At [25].
A starting point of 25 years was adopted, the Judge citing two comparable cases, Chen v R[9] and R v Chan.[10] He remarked that for those further up the chain a considerably higher starting point, perhaps life imprisonment, would be realistic. He allowed a three-year discount for youth and prospects of rehabilitation and a discrete discount of five per cent for other matters. He also allowed a full guilty plea discount of 25 per cent. Mr Cheung was charged on 5 October 2016 and entered a guilty plea on 29 March 2017, but Moore J accepted that there had been a change of counsel and some communication difficulties. The resulting sentence was 15 years and five months’ imprisonment.
[9]Chen v R [2009] NZCA 445, [2010] 2 NZLR 158.
[10]R v Chan [2016] NZHC 2376 [R v Chan (HC)].
The Judge also imposed a minimum period of imprisonment of about 60 per cent or nine years. He found that necessary to reflect harm done and the need for denunciation and deterrence. He cited Zhou v R for the proposition that the statutory minimum period of one-third will usually not suffice to meet the sentencing purposes in s 86(2) of the Sentencing Act 2002.[11]
Submissions on retrospectivity and extension of time
[11]At [32], citing Zhou v R [2009] NZCA 365 at [18]–[19].
Mr Carruthers, for Mr Cheung, submitted that judicial decisions ordinarily have both retrospective and prospective effect. Sentencing guideline judgments differ in that they are usually expressed to apply from a particular date, giving them limited retrospective effect. Their retrospective application is limited because they reflect evolution in sentencing policy and practice. But Moses is not a guideline judgment; rather, it established that sentences imposed using the three-step methodology were wrong in principle. Accordingly, it is an ordinary overruling which, on the declaratory theory of law, applies retrospectively. This does not mean that all sentences imposed under the three-step methodology were miscalculated, in the sense that but for the methodology the judge would have imposed a lesser sentence. Nor does it mean that those sentences were manifestly excessive. It means rather that an appellate court should apply the two-step methodology when considering appeals against sentence, whenever the offending and sentencing occurred. Further, the appellate court should take change in law into account when considering applications for an extension of time. Floodgates considerations are unlikely to arise, and in any event they should yield where the liberty of the subject is at stake.
Mr Lillico, for the Crown, emphasised that jurisdiction to overturn a sentence on appeal is governed by the Criminal Procedure Act 2011, which provides that a sentence may be overturned only where an error is found and the appellate court is satisfied that a different sentence should be imposed. It is ordinarily necessary to show that the sentence was manifestly excessive or inadequate.[12] Moses does not alter this settled approach to sentence appeals. And as the Court noted there, the three-step methodology will seldom result in a manifestly excessive sentence when the outcome is compared to the two-step methodology.[13] Nor should the outcome be characterised as a calculation error, or error of principle, since the methodology is merely a guide intended to achieve transparency and consistency in sentencing. Moses did not change that. In any given case the sentencing judge ought to have stood back and inquired whether the sentence was just having regard to applicable sentencing purposes, principles and factors. This Court has made it clear that it will not interfere with the sentence merely because a sentencing judge used the three-step methodology.[14]
[12] Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].
[13]Moses v R, above n 2, at [33].
[14]Moheebi v R [2020] NZCA 343 at [35]; Roberts v R [2020] NZCA 441 at [53]–[54]; and Smith v R [2020] NZCA 586 at [37]–[38].
Mr Lillico further submitted that Moses should not automatically be applied on appeal to sentences imposed before its release because it is a guideline judgment concerned with sentencing methodology.[15] Guideline judgments differ from other judgements; they assist trial judges in the exercise of discretion but do not override it. Their primary function is to promote consistency in sentencing levels nationwide, as the Sentencing Act requires.[16] That means they are inherently future-focused. He accepted that Moses may be applied retrospectively where “material error” is apparent.
Moses is a guideline judgment
[15]Moses v R, above n 2, at [49].
[16]Sentencing Act 2002, s 8(e).
The judgments of this Court and the Supreme Court in Hessell v R resulted in a three-step methodology for sentencings by a guilty plea discount.[17] At the first step, the sentencing court chose a starting point based on the aggravating and mitigating features of the offence; at the second it adjusted the starting point for aggravating and mitigating circumstances of the offender; and at the third it allowed a guilty plea discount of up to 25 per cent of the sentence that would otherwise have been imposed at step two.
[17]Hessell (CA), above n 3, at [14]–[15]; and Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 [Hessell (SC)] at [73].
In Moses, this Court explained the distinction between remorse and guilty plea discounts[18] and abandoned the Hessell methodology.[19] The Court adopted a two-step methodology in which all uplifts and discounts, including the guilty plea discount, are based on the starting point at step one.[20] This was done because the three-step sentence calculation could materially reduce the size of the guilty plea discount for offenders who also received substantial discounts for other personal mitigating factors. We found that result an unforeseen and unwarranted consequence of the three-step methodology.
[18]Moses v R, above n 2, at [21]–[26].
[19]At [46].
[20]At [46].
It did not follow that sentences using the three-step methodology were wrong. The sentencing judge fixes the starting point and any uplifts and discounts in an evaluative way by reference to sentencing purposes, principles and factors found in the Sentencing Act. The sentence is imposed after standing back and asking whether it is just. The three-step methodology, like the two-step one that replaced it, structured the sentencing analysis in pursuit of consistency and transparency. The only concrete limit imposed was the 25 per cent cap on a guilty plea discount. The change of methodology was limited to calculation of the guilty pleas discount, albeit the most common and usually the largest. It is only when a guilty plea discount is combined with other substantial discounts that the methodology is liable to produce a materially different outcome, as the facts of Moses itself demonstrate.[21] And on appeal, the question is not whether a given methodology was followed but whether the end sentence was manifestly excessive.
[21]At [58].
It is true, as Mr Carruthers submitted, that Moses corrected a problem inherent in the Hessell methodology. It differs from other guideline judgments, such as Zhang, in which the Court adjusts starting points, discounts and methodology to reflect experience and changing policy or circumstances. We return to this point at [38] below. Nonetheless, Moses is a guideline judgment and so describes itself.[22] It concerns evolving sentencing methodology, including the distinction between remorse and guilty plea discounts, and it shares the objective, common to all guideline judgments, of promoting transparency of analysis and principled consistency of outcome, so furthering objectives of the Sentencing Act.[23]
Retrospectivity generally
[22]At [49].
[23]At [49].
With rare exceptions, statutes always operate prospectively, but judge-made law is generally both prospective and retrospective. Retrospectivity was traditionally justified under the declaratory theory of law, which holds that judges do not make law but only discover what was always there to be found.[24] It is now uncontroversial that judges do make law, or, at the very least, as Tipping J put it in Lai v Chamberlains, they decide what the law was when the facts giving rise to the litigation took place.[25]
[24]See the discussion in Chief Executive of the Department of Corrections v Gardiner [2017] NZCA 608 [2018] 2 NZLR 712 at [11]–[13] and Taylor v R [2018] NZCA 498, [2019] 2 NZLR 38 at [4].
[25]Lai v Chamberlains [2006] NZSC 70, [2007] 2 NZLR 7 at [130].
In Lai, the Supreme Court recognised that there may be circumstances in which a court could overrule past decisions with prospective-only effect.[26] Mr Lillico argued that Tipping J envisaged that the Supreme Court alone might do so.[27] Tipping J made that comment when noting that the retrospective effect of a judgment should only be limited where the judgment being overturned could fairly be regarded as settling the law on that point.[28] In any event, no final appellate court judgment precludes this Court from limiting retrospectivity in an appropriate case that does not concern barristerial immunity from suit,[29] and as we explain below this Court has long done so when addressing sentencing practice.
[26]At [142]–[147] per Tipping J and at [205] per Thomas J. The majority preferred to make no comment: see at [95].
[27]At [142] and [147].
[28]At [143].
[29]Lai v Chamberlains, above n 25, at [95] per Elias CJ, Gault and Keith JJ, [142]–[147] per Tipping J and at [205] per Thomas J.
As Tipping J remarked, retrospectivity is better understood when described as limiting the retrospective effect of judicial decisions.[30] He explained that:
[135] A proper approach to this topic requires an appreciation of the realities of the role of the courts in our judicial system. Judges make law. They always have done: hence the expression “judge-made law”. The total body of law under which we live comprises law made by Parliament and law made by the judges. Parliament changes the law from time to time and so do the judges. … The present issue concerns whether and how judicial changes to the law can be managed so as to avoid or at least mitigate, when necessary, the difficulties which arise from the retrospective effect of such changes.
[30]At [134].
We cite that passage to make two points: a decision to limit retrospective application may be affected by something Parliament has done, and a court’s decision will be informed by any need to mitigate difficulties that retrospective application might cause.
Statutory provision for sentence appeals
We turn to the statutory framework for sentence appeals. We note that the Criminal Procedure Act is itself partly retrospective, in that it may apply to conduct predating its enactment. Its provisions generally apply to any criminal proceeding begun after the commencement date, regardless of when the offending behaviour occurred.[31] The legislature has evidently chosen to follow the traditional common law rule that prospective defendants “do not have a vested right to any particular procedure and there will generally be nothing unfair in applying whatever procedure is in force when the case comes to court”.[32] What matters is that their substantive rights and obligations are fixed by reference to the law as it stood at the time.[33]
[31]Criminal Procedure Act 2011, ss 398. Proceedings begun before commencement date were completed under the former law: s 397.
[32]Humphreysv Attorney-General of Antigua and Barbuda [2008] UKPC 61, [2009] 4 LRC 405 at [4]. The Act provides in ss 397 and 398 that proceedings commenced under former law and not finally determined are to be decided under the former law, but unless otherwise specified proceedings begun after the Act’s commencement date are to be dealt with under las as it is after that date.
[33]Maxwell v Murphy (1957) 96 CLR 261 at 267 per Dixon CJ.
Sentence appeals are provided for in sub-pt 4 of pt6 of the Act. Section 244(1) creates a right of appeal against sentence:[34]
244 Convicted person’s right of appeal against sentence
(1)A person convicted of an offence may appeal under this subpart to the first appeal court against the sentence imposed for that offence, unless the sentence is one fixed by law.
[34]Section 246 creates a right of appeal for a prosecutor. It is subject to the time limit for filing set out in s 248.
Section 248 prescribes how a first appeal is to be commenced (by filing a notice of appeal in the appropriate court) and imposes a time limit:
248 How to commence first appeal
…
(2)A notice of appeal or notice of application for leave to appeal must be filed within 20 working days after the date of the sentence appealed against.
The section also gives the court appealed to a discretion to extend time for filing an appeal:
(4)The first appeal court may, at any time, extend the time allowed for filing—
(a)a notice of appeal or notice of application for leave to appeal;
…
It will be seen that if not exercised in time the right to appeal against sentence is lost, but the appellate court is given a discretion, on its face unrestricted, to extend time for filing. We address at [50] below what the authorities have to say about exercise of the discretion.
There is one right of appeal. Once exercised it is spent.[35] Nothing in the legislation authorises a court to revisit sentences because of a subsequent change in sentencing policy or practice, or indeed a change in legislation.[36] This is equally true of conviction appeals, even where a subsequent change in the law would have led to the defendant’s acquittal, as happened in R v Knight.[37] In such a case the only remedy provided for in legislation is an application for exercise of the prerogative of mercy.[38] As we go on to explain, this is a significant consideration when considering applications for extension of time founded on a subsequent change in the law; those who did appeal in time have no further recourse to the courts.
[35]Appeals from the appellate court’s decision to a second appeal court are by leave.
[36]Unless of course the legislation itself provides for resentencing, as has been foreshadowed with current proposals to repeal the three strikes regime.
[37]R v Knight [1998] 1 NZLR 583 (CA).
[38]Letters Patent Constituting the Office of the Governor-General of New Zealand 1983, cl 11; and Criminal Cases Review Commission Act 2019, ss 28–30.
As a Full Court held in Knight, the policy underlying the time limit is that of finality in litigation.[39] The statutory regime reflects a balance between public and private interest. That balance reflects the interests not only of appellants but also of others involved in their cases, including victims. It also gives effect to a legislative policy decision about the resources the community should devote to error correction. Judicial decisions on the topic of finality in litigation also identify the difficulty, sometimes impossibility, of rehearing cases long after the event.[40] Of course proof of guilt is not in issue in sentencing cases, but they may pose difficulties to the extent that they require courts to recognise sentencing practices and mores of an earlier era.[41]
[39]R v Knight, above n 37, at 587.
[40]See the discussion in CT v R [2014] NZSC 155, [2015] 1 NZLR 465 at [13]–[16], citing R v Jacobi [2012] SASCFC 115, [2012] 114 SASR 227 at [104].
[41]The issue was discussed in connection with sentencing for historic sexual offending in R v Accused (CA463/97) (1998) 15 CRNZ 602 (CA) at 609.
Consistent with the legislative policy of finality, the Court held in Knight that “the starting point must be the principle that a conviction obtained according to law as it was then understood and applied should stand.”[42] That must be all the more true of a sentence appeal, in which the offender’s guilt is not in dispute.
[42]R v Knight, above n 37, at 588–589.
An appellate court does possess power to recall a decision made in its criminal jurisdiction.[43] We mention it here because it is an incident of the court’s statutory jurisdiction, necessary to maintain its character as a court of justice,[44] and if available it would place those whose appeal rights have already been exercised in a similar position to those who did not appeal and now seek to do so out of time. However, the recall jurisdiction is most unlikely to be available to reopen a sentence appeal where there has been a change in sentencing law or practice, for several reasons.
[43]Uhrle v R [2020] NZSC 62 at [15]–[17].
[44]R v Smith [2003] 3 NZLR 617 (CA) at [36], referring to DJL v Central Authority [2000] HCA 17, (2000) 201 CLR 226 at [92]–[94]; and Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB 528 at [54]–[57].
First, as this Court held in R v Smith, recourse to the power of recall must not undermine the principle of finality.[45] The Supreme Court has since held, in Uhrle v R, that, contrary to the view of this Court, Smith did not restrict recall to procedural error.[46] But the jurisdiction remains exceptional and the principle of finality continues to apply.[47] As we have just observed, it is embedded in the legislation.
[45]R v Smith, above n 44, at [36].
[46]Uhrle v R, above n 43, at [26]–[27].
[47]Lyon v R [2020] NZCA 430 at [19]–[20] and [27].
Second, an applicant for recall must show that the court’s previous decision has occasioned a substantial injustice.[48] A change of law cannot ordinarily have that effect. As noted above, a past decision is correct if it was reached pursuant to law applicable at the time.[49]
[48]At [27], citing Taylor v Lawrence, above n 44, at [55]; R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 4) [2016] UKSC 35, [2017] AC 300 at [6] and [156]; and R v Smith, above n 44, at [35].
[49]Taylor v R, above n 24, at [4].
Third, a practice of reopening appeals (or for that matter, granting extensions of time) because of a subsequent change in law or practice would affect a great many past decisions and so affect the administration of justice, requiring either that other cases be delayed or that the state devote additional resources to the courts.[50] This is a policy consideration, but it is properly derived from the legislation which, as noted, affords only one right of appeal and requires that it be exercised in time.
Guideline judgments have limited retrospective effect
[50]The Ampthill Peerage [1977] AC 547 (HL) at 576.
This Court ordinarily specifies in a guideline judgement that the guidelines are to apply to sentences imposed after a given date.[51] So, for example, in R v AM (CA27/2009) the Court stated that:[52]
The new guideline should be applied to all sentencing taking place after 31 March 2010. That was the approach this court took in Taueki and in Hessell.
(footnotes omitted).
[51]See for example Zhang v R, above n 5, at [187]; R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [125]–[127]; R v Fatu, above n 4, at [44]; R v Mako [2000] 2 NZLR 170 (CA) at [21]; and R v Taueki [2005] 3 NZLR 372 at [60] and [62].
[52]R v AM (CA27/2009), above n 51, at [125].
And in Zhang v R the Court stated that:[53]
This judgment is to be issued on 21 October 2019. It applies to all sentencing that takes place after that date regardless of when the offending took place.
[53]Zhang v R, above n 5, at [187].
It will be seen that sentencing guideline judgments do apply to past conduct unless it has been the subject of a criminal proceeding that ended in a sentence passed before the guideline took effect. To that extent they are retrospective. They do not apply, however, to most sentences that were imposed in the past. To that extent they are prospective.
The retrospective application of guideline judgments to past conduct that has not yet resulted in a sentence ought to be uncontroversial, for several reasons.
First, guideline judgments do not vary the penalty for the offence, which is fixed by statute. It is settled law that the “penalty” means the maximum (or mandatory minimum), not the actual penalty that might be imposed on a given offender sentenced on a given date.[54] Accordingly, guideline judgments do not engage the (identically worded) language of s 25(g) of the New Zealand Bill of Rights Act 1990 and s 6 of the Sentencing Act.
[54]Davies v R [2011] NZCA 546, [2012] 1 NZLR 364 at [55]–[57]; Morgan v Superintendent, Rimatuka Prison [2005] NZSC 26, [2005] 3 NZLR 1 at [29]–[31] per Gault J, [57] and [77] per Blanchard J, [86]–[87] per Tipping J and [112]–[113] per Henry J; and R v Mist [2005] NZSC 77, [2006] 3 NZLR 145.
Second, there is no statutory or common law right to the benefit of a particular methodology or guideline.
Third, a sentencing guideline judgment often affects substance (for example, by banding starting points) as well as process, but the substance/process distinction ordinarily matters only because a substantive change in the law introduces an interpretive presumption against retrospective application of legislation. Sentencing guidelines are judge-made law, and as explained above judge-made law is normally retrospective.[55] The real question is whether retrospectivity operates unfairly.
[55]Chamberlains v Lai, above n 25, at [130]–[131].
Fourth, retrospective application of sentencing guidelines is not ordinarily unfair. As just explained, guidelines reflect evolving sentencing practice and are not intended to be prescriptive. Judges are expected to sentence by reference to the applicable statutory sentencing purposes, principles and factors. Guidelines invariably make that point and specify that judges may depart from the guidelines when necessary to fix a just sentence in a given case.
The prospective-only application of a guideline judgment to sentences that have already been passed at the date of the judgment ought also to be uncontroversial, for it reflects the scheme of the Criminal Procedure Act. As we have already explained, the legislation adopts the principle of finality and makes no provision for reopening past sentences.
Accordingly, as this Court explained in Zhang:[56]
[188] The approach that has consistently been taken by this Court in previous guideline judgments is that the judgment only applies to sentences that have already been imposed, if and only if two conditions are satisfied: (a) that an appeal against the sentence has been filed before the date the judgment is delivered; and (b) the application of the judgment would result in a more favourable outcome to the appellant.
(Footnote omitted.)
It is because the Court limited the reach of its judgment in that way that Mr Cheung must rely on Fatu. He could invoke Zhang only if he had filed an appeal before 21 October 2019.
[56]Zhang v R, above n 5.
Should Moses be treated differently? Generally, the answer is no. It will be apparent from what we have said that an offender is entitled to have Moses applied to past conduct that resulted in a sentence delivered at first instance after its date of issue, 15 July 2020. The Court applies Moses where an appeal was pending at that date.[57] The Court does not ordinarily apply Moses where an offender had been sentenced before 15 July 2020 and an appeal was not pending at that date. When the Court finds the sentence in such a case manifestly excessive for other reasons, however, it may use the two-step methodology when substituting another sentence.[58]
[57]See for example Clark v R [2020] NZCA 641 at [26] (filed 21 May 2020); Moheebi v R, above n 14, at [35] (filed 22 August 2018); Gray v R [2020] NZCA 548 at [31] (filed 9 June 2020); Waho v R [2020] NZCA 526 at [33] (filed 24 March 2020); Wikohika v R [2020] NZCA 352 at [33] (filed 13 February 2019); Chan v R [2020] NZCA 486 at [28] (filed 8 November 2019); Prasad v R [2020] NZCA 483 at [26] (filed 5 March 2020); Hayden v R [2020] NZCA 369 at [57] (filed 29 May 2020); Carr v R [2020] NZCA 357 at [73] (filed 10 October 2019); Martin v R [2020] NZCA 318 at [35] (filed 22 October 2019); and Pearson v R [2020] NZCA 573 at [34] (filed 9 June 2020).
[58]Keenan v R [2021] NZCA 118; and Wira v R [2021] NZCA 98.
For all of these reasons an appellant who was sentenced before 15 July 2020 but whose appeal was not pending at that date ordinarily will be unable to show that the sentence was manifestly excessive merely because the three-step methodology was used. Such cases usually require an extension of time, to which we now turn.
The discretion to extend time for filing an appeal
That brings us to the criteria for an extension of time. In R v Lee, this Court described an extension as an “indulgence”,[59] meaning the Court is under no obligation to permit it. But of course the discretion must be exercised in a principled way. Those principles were discussed in the Full Court decisions in Knight[60] and Lee.[61]
[59]R v Lee [2006] 3 NZLR 42 (CA) at [102].
[60]R v Knight, above n 37, at 587–589.
[61]R v Lee, above n 59, at [102]–[107].
As explained at [32] above, the Court held in those decisions that a balance must be struck between public and private interests, each of which may cut two ways. The public interest favours finality,[62] but also the maintenance of confidence in the administration of justice.[63] The appellant’s interest strongly favours an extension, especially where the conviction is in issue or liberty is at stake, but the interests of others involved in the case may strongly favour finality.[64] This Court held in Knight that:[65]
… the starting point must be the principle that a conviction obtained according to law as it was then understood and applied should stand. Leave to appeal out of time on the ground that there has been a restatement of the applicable law should be granted only where special circumstances can be shown to justify a departure from the principle of finality. The applicant must demonstrate some special feature or features particular to the case that lead to the conclusion that in all the circumstances justice requires that leave be given. Amongst the considerations which will also be relevant in that overall assessment are the strength of the proposed appeal and the practical utility of the remedy sought, the length of the delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.
[62]R v Knight, above n 37, at 587; R v Lee, above n 59, at [98] and [102]–[103]; Lyon v R, above n 47, at [23]–[24], citing The Ampthill Peerage, above n 50, at 576; Uhrle v R, above n 43, at [28]; and Smith v R, above n 44, at [36].
[63]R v Knight, above n 37, at 589; R v Lee, above n 59, at [102]; Lyon v R, above n 47, at [33]; and R v Smith, above n 44, at [36].
[64]R v Knight, above n 37, at 587
[65]At 588–589.
Endorsing that approach, this Court held in Lee that:[66]
[102] Given that the Knight test has stood unchallenged since 1997 and that it accords with the approach in comparable jurisdictions, we do not consider that we should revisit it. Indeed, we see no basis for doing so. The balancing approach set out in Knight, where all the competing interests are taken into account, appears to us manifestly to be the correct one. There is an appeal as of right in criminal cases if the appeal is filed within the prescribed 28-day period. After that period, whether or not a convicted person can appeal depends on whether an extension is granted. A person making an application for an extension of the 28-day limit is seeking an indulgence from the Court. The statute provides no guarantee that it will be granted. … it cannot have been intended that those seeking to appeal out of time should be in exactly the same position as those appealing within time, no matter how long out of time, no matter what the reasons for the delay and no matter what the effect may be on any victims or on the due administration of justice.
[66]R v Lee, above n 59. We also note that Lee extended the test set out in Knight to apply to extensions of time in criminal cases generally, not just in situations where the appeal was based on a change in law: at [104]. See also Taylor v R [2020] NZCA 584 at [10].
Accordingly, it is necessary but not sufficient for an appellant to show that an appeal has merit, and when considering merit the court’s starting point is that a conviction or sentence should stand if it was correct according to law at the time. All relevant considerations must be balanced, including the applicant’s explanation for delay. Long delay is a major factor counting against an applicant and ordinarily decisive if unexplained.[67] The case for an extension requires evidence of special circumstances.
[67]R v Lee, above n 59, at [115].
We turn to the application for extension of time in this case. Some considerations, such as the interests of victims or witnesses or difficulty of retrying the case, do not arise here. Counsel focused on the length of delay and reasons for it, and the merits of the appeal.
Accounting for Mr Cheung’s delay
Mr Cheung was sentenced on 9 May 2017 and filed his appeal on 29 July 2020. He has sworn an affidavit to explain his delay. He says he did not take advice from, or even see, his then lawyer after sentencing, despite attempts to do so. His English remains very poor and for the first 18 months he was held in Northland, where he did not have contact with other Chinese-speaking (he is from Hong Kong so we assume he means Cantonese) prisoners. He says that after being transferred to South Auckland Correctional Facility he was placed in a unit where he was assisted by a Chinese prisoner who was in a similar situation but had better English. That prisoner contacted counsel for him. As Mr Lillico submits, there is reason for scepticism about this account. It is not clear why Mr Cheung’s family and contacts outside New Zealand were unable to assist him. He enjoys their support. And there is no adequate explanation for the 20 months’ delay after being moved to South Auckland.
It is a noteworthy feature of this case that the judgment in Moses was delivered on 15 July 2020, mere days before the notice of appeal was filed. The notice was evidently filed with legal assistance from counsel, Ms Sellars QC. (We should make it clear that she was not his counsel at sentencing.) However, Mr Cheung does not say that he appealed because Moses supplied a ground of appeal of which he had previously been in ignorance. His account, as noted, is that he had no assistance and no understanding of appeal rights. He says his sentence was too long in any event, and the MPI unwarranted. This is not a case, then, in which a change in the law is said to excuse delay. (If it were, any delay following delivery of the judgment in Moses would be very relevant.) The starting point and MPI were orthodox and obvious grounds of appeal.
We are prepared to assume that linguistic and cultural difficulties explain the delay until Mr Cheung was transferred to a prison in which he had access to other Cantonese-speaking inmates in similar circumstances. That leaves a delay of 20 months, a substantial period that is inadequately explained.
Merits of the appeal
The starting point
Mr Carruthers submitted that the 25-year starting point sits uneasily with other authorities under Fatu and does not adequately reflect Mr Cheung’s role. Neither of the two cases relied on by the Judge, Chen and Chan, provided support for the starting point. In Chen one of the offenders, Mr Deng, assisted in the importation of 96 kg of methamphetamine and 154 kg of pseudoephedrine.[68] His was a high-level role and he was aware of the scale of the operation. The starting point in his case was increased to 25 years on appeal.[69] Mr Carruthers submitted that it is true that Mr Cheung also handled the drugs, but that was the extent of the similarity. Mr Cheung’s position was relatively low in the hierarchy; he was not a conduit for instructions from the leaders, did not communicate with foreign suppliers and was not shown to have detailed knowledge of the operation.
[68]Chen v R, above n 9, at [191]–[202].
[69]At [203].
Mr Carruthers submitted that Mr Cheung’s role was more akin to Chan v R, where a starting point lower than 25 years was eventually imposed: a 20-year starting point was adopted on appeal for Mr Chan’s role in importing approximately 80 kg of methamphetamine in total.[70] Like Mr Cheung, Mr Chan was recruited at the age of 21 to aid in the importation and distribution, travelling to New Zealand for that purpose and assisting in a very similar manner.
[70]Chan v R [2018] NZCA 148 at [27] [Chan v R (CA)]. Mr Chan’s appeal had not been heard at the time of Mr Cheung’s sentencing. The Judge referred only to the initial sentencing: R v Chan (HC), above n 10. The sentencing Judge added three years for totality but on appeal this Court reduced the starting point to 20 years to reflect the appellant's lesser role compared to his co‑offenders.
Mr Lillico responded that the differences cited by Mr Carruthers were not material and the starting point was well justified. The Judge correctly noted that the quantity was staggering. Mr Cheung must have known that he was handling significant quantities of methamphetamine, since he extracted it from the doors of the shipping containers. He was responsible for looking after the warehouse and dealing with containers. He was involved in implementing a CCTV system, fumigating the containers, selling used ones and cleaning and subleasing the warehouse. He also had contact with criminals based overseas. The length of time during which Mr Cheung offended distinguishes him from Mr Deng; he arrived in New Zealand in December 2015 and was paid for his services from April until August 2016.
We agree with counsel that Chan and Chen are the only comparable authorities. Mr Chan performed simple tasks under instructions. These included unloading and storing the drugs. He was not young but he had a gambling addiction. His role was a little more involved than Mr Cheung’s but the quantity, something over 80 kg, was far less. This suggests that a starting point materially higher than the 20 years imposed in that case is appropriate here.
A number of offenders were sentenced in Chen in connection with multiple consignments totalling 96 kg of methamphetamine and 154 kg of its precursor substance, pseudoephedrine. The lead offenders were held on appeal to have merited starting points of life imprisonment on the lead offence of importing 96 kg of methamphetamine alone. Lesser offenders, Messrs Deng, Fan and Fung, played operational and non-managerial roles, setting up arrangements to receive the shipments and actually handling them on arrival. Each received a 25-year starting point on appeal to this Court for their involvement in one shipment of 96 kg of methamphetamine.
As has been said on many occasions, other cases should not determine the starting point. They are used as a cross-check. We consider that the starting point was at the upper end of the range available to the Judge under Fatu (and we add that Zhang, generally speaking, did not reduce starting points for those playing a substantial role in large-scale commercial drug dealing).[71] He falls well within band 4 of Fatu, which established starting points of 12 years to life imprisonment for quantities exceeding 500 g. Mr Cheung was a full participant in a massive importation of methamphetamine, substantially larger than that for which Mr Chan was sentenced. He handled the drugs and cannot claim to have been unaware of the quantity. He plainly came to New Zealand to assume responsibility for running a substantial and apparently legitimate warehouse operation which was intended to continue indefinitely, and he was involved for a substantial period of time. His role was on any view significant and he was well aware of what he was doing. His objective was to make money. Youth and naivety might go some way to explain involvement in a one-off transaction, but Mr Cheung had ample time to think better of it before the July importation that led to his arrest.
[71]Zhang v R, above n 5, at [11].
We would not grant an extension of time to appeal on this ground.
The guilty plea discount
We adopt Mr Lillico’s helpful table showing Moore J’s sentence calculation alongside the Moses methodology:
Moore J’s sentencing approach
The approach under Moses
25 years starting point 25 years starting point 3 year discount for youth (or 12%)
22 years
42% discount for youth plus guilty pleas plus other matters
14 years 6 months final sentence
5% for other matters (or 1 year 1 month)
20 years 11 months
25% discount for guilty plea (or 5 years 3 months)
15 years 8 months final apparent final sentence
15 years 5 months final sentence actually imposed
The sentence actually imposed was 15 years and five months, which is three months less than a mechanical application of the three-step methodology would produce. The difference between the actual sentence and the product of the two-step methodology is 11 months.
Mr Carruthers argued that the difference of 11 months is sufficient to make the sentence manifestly unjust. Mr Lillico contended that the difference is less than four per cent of the starting point and hence immaterial.
We would not grant an extension of time to appeal on this ground. As explained above, Moses does not govern appeals brought after 15 July 2020. The guilty plea discount was correctly calculated on the law as it stood at the time. In any event, this is not a case where the Judge allowed the three-stage calculation to dictate the final sentence. Moore J did not specify that he arrived at the end sentence by standing back and enquiring whether it was just in all the circumstances, but the three‑month difference between the calculation and the eventual end sentence suggests that he did. The methodological difference is small. Nor do the interests of justice compel an extension. The Judge reluctantly gave a discount of five per cent for other matters. We have reviewed his reasons for doing so and agree with him that the discount was generous. In the final analysis, we do not think it sufficiently arguable that a sentence of 15 years five months’ imprisonment is manifestly excessive for someone in Mr Cheung’s circumstances who played a significant role in major commercial drug dealing.
The MPI
The Judge gave brief reasons for imposing a minimum period of imprisonment of nine years (a little less than 60 per cent):[72]
[32] The Crown seeks a MPI near the statutory maximum of 10 years’ imprisonment. In support, it refers to a case of R v Zhou where the Court of Appeal observed that in cases of large-scale methamphetamine offending, the general convention of imposing a MPI of one third under the Parole Act 2002 will usually be insufficient to meet the statutory purposes of sentencing identified in s 86(2) of the Sentencing Act 2002. Relevantly, these purposes, as I have already touched on, are to hold you accountable for the harm done to the community, to denounce your conduct and to deter others.
[33] I have examined the MPIs imposed in the cases I have discussed already. Mr Deng received the statutory maximum of 10 years. Mr Chan received a MPI of seven years and eight months (or 40 per cent of the finite sentence). In my view, given the scale of the importation a MPI of 60 per cent is required to meet the sentencing purposes I have just identified. This translates to a MPI of nine years' imprisonment. I have decided against imposing the statutory maximum to reflect your youth and your prospects for rehabilitation.
(Footnotes omitted.)
[72]R v Cheung, above n 1.
Mr Carruthers noted that this Court subsequently quashed the minimum period that was imposed at first instance in Chan and relied on by Moore J.[73] Counsel pointed out that Mr Cheung was three years younger when he committed the offence than Mr Chan had been. He also cited Fangupo v R, in which a youthful offender with good prospects for rehabilitation received a minimum period of 40 per cent of the end sentence.[74]
[73]Chan v R (CA), above n 70, at [39].
[74]Fangupo v R [2020] NZCA 484 at [64]. We note that this case is from 2020 and is thus likely influenced by Zhang v R, above n 5, which is not applicable to this case.
Mr Lillico submitted that an MPI was appropriate but was prepared to accept that in all the circumstances it may have been too high.
At the time of Mr Cheung’s sentencing, minimum periods were imposed when sentencing those who engage in large-scale drug offending for commercial reasons. Such offending was (and remains) likely to engage the qualifying purposes in s 86 of the Sentencing Act, as the Court explained in Zhou v R.[75] But, as the Court also held in that case, minimum periods must not be imposed more or less automatically.[76] Rather, the s 86 purposes must always be considered, and adequate reasons given. In Gordon v R the Court confirmed that when turning to a minimum period, a sentencing judge must reconsider the sentencing principles in ss 7, 8 and 9.[77] And in Chan the Court held that:[78]
[39] Whilst minimum periods of imprisonment will frequently be justified in cases of drug importation on a commercial scale, the imposition of a minimum period of imprisonment remains a matter that is to be determined case by case. We do not consider that a minimum period of imprisonment was necessary in this case to meet any of the purposes of s 86(2) of the Sentencing Act 2002. A sentence of the length imposed on one so young is sufficient for each of those purposes.
[75]Zhou v R, above n 11, at [19].
[76]At [18]–[20].
[77]R v Gordon [2009] NZCA 145 at [48].
[78]Chan v R (CA), above n 70.
We agree that having regard to the length of the sentence and Mr Cheung’s youth, prospects of rehabilitation and personal circumstances (distance from family and poor English), a minimum period was not required in this case. The difference between the statutory minimum period of one third and the minimum period imposed — more than four years’ time served — is plainly substantial.
The balancing exercise
We are satisfied that an extension of time should be granted. The period of 20 months inadequately-explained delay would likely preclude an extension of time in other cases. But we find that a minimum period of imprisonment was not required in this case and the very substantial difference between the statutory minimum period (one third of the sentence) and the minimum period imposed is a special circumstance justifying an extension in the circumstances. We quash Mr Cheung’s MPI for the reasons set out at [72].
Result
We extend time for filing the appeal, and the appeal is allowed in part.
The minimum period of imprisonment is quashed. The determinate sentence of 15 years and five months’ imprisonment remains.
Solicitors:
Crown Law Office, Wellington for Respondent
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