Choi v R
[2011] NZCA 237
•1 June 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA705/2010 [2011] NZCA 237 |
| BETWEEN CHUN MING CHOI |
| AND THE QUEEN |
| Hearing: 3 May 2011 |
| Court: Wild, Venning and Courtney JJ |
| Counsel: M A Edgar for Appellant |
| Judgment: 1 June 2011 at 10am |
JUDGMENT OF THE COURT
A The appeal against sentence is allowed in part.
BThe order that the appellant serve a minimum period of imprisonment of five years is quashed.
CIt is ordered that the appellant serve a minimum period of imprisonment of four years.
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REASONS OF THE COURT
(Given by Courtney J)
Introduction
The appellant, a Hong Kong national, pleaded guilty in the District Court at Manukau to ten charges of importing methamphetamine and one of possession of methamphetamine for supply. Judge Andree Wiltens sentenced him to eight years imprisonment on each charge (the sentences to be served concurrently) and imposed a five year minimum period of imprisonment.
The Judge sentenced on the basis that the appellant had acted in the role of courier. His task was to travel to New Zealand and receive drugs sent here by post. The total amount imported was 749.9 grams which brought the appellant within band 4 of R v Fatu.[1] The Judge took a starting point of 12 years six months’ imprisonment. He reduced that starting point by six months to reflect the appellant’s co-operation with authorities and applied a further 33 percent discount in recognition of the appellant’s guilty plea.
[1] R v Fatu [2006] 2 NZLR 72 (CA) at [36].
There is no challenge to the approach the Judge took in sentencing, nor to the end sentence, nor to the imposition of a minimum period of imprisonment. The sole ground of appeal is that the minimum period of imprisonment imposed is manifestly excessive because the Judge failed to take mitigating factors into account.
Minimum period of imprisonment
A sentencing judge may impose a minimum period of imprisonment if the usual minimum non-parole period of one-third of the determinate sentence would not be sufficient to achieve all or any of the purposes of accountability, denunciation, deterrence and protection of the community identified in s 86(2) Sentencing Act 2002. Under s 86(4)(a), the maximum period that can be imposed is two-thirds of the finite sentence. There is no presumption against imposing the maximum period; the question is simply what period is required to achieve the purposes identified in s 86(2).[2]
[2] R v Wang [2009] NZCA 118 at [14]
In determining the length of a minimum period of imprisonment, all the relevant circumstances of the offender and the offending must be considered. Fixing the minimum period of imprisonment is a separate, albeit very similar, exercise to fixing the finite sentence, as this Court pointed out in R v Taueki:[3]
Once it becomes necessary to address the second question, the length of the minimum period, the Court is required to take into account (to the extent that they are relevant to the particular case) all of the purposes of sentencing in s 7 and the mandatory requirements of s 89, just as it must take them into account in setting the finite term ... The setting of the minimum period of imprisonment requires similar analysis to that required for setting the minimum sentence. The factors in s 89 are relevant to both exercises. The fact that they are taken into account in setting the minimum period, as well as the maximum period, does not lead to double counting, but rather reflects the dual exercise which the Court must undertake.
[3] R v Taueki [2005] 3 NZLR 372 at [56].
For the purposes of this exercise all the relevant factors (including the mitigating factors) need to be considered.[4] In R v Gordon this Court observed that:
[46] Of course, whatever the length of a minimum period of imprisonment, an offender will necessarily derive benefit from a discount given in the course of calculating the lead sentence, because the minimum period cannot exceed two-thirds of that sentence. But sentencing judges must devote separate attention to the circumstances of the offender at the second stage of the inquiry, when a minimum period of imprisonment is being considered. That is not to double count mitigating factors. It simply recognises the need to consider the circumstances of the offender as well as the offending itself.
[4]R v Brown [2002] 3 NZLR 670 at [39]; R v Nguyen [2009] NZCA 239 at [9], [26]; R v Gordon [2009] NZCA 145 at [46]; R v Wang [2009] NZCA 118 at [14].
In the present case, the Judge took into account all the relevant factors in fixing the final sentence and then dealt with the minimum period of imprisonment as follows:
[12] The prosecution also submit that it is appropriate for a minimum non-parole period to be imposed. I agree. It is entirely appropriate that someone who brings in this quantity of methamphetamine and imposes the truly evil consequences on members of our society by doing that, deserves to be held in custody longer than the norm. So under s 84(1) I find that a sentence of eight years with the normal parole period would not meet the requirements of holding you accountable, to denounce your conduct, to deter you and to protect other members of our community. A minimum non-parole period is therefore appropriate.
[13] The maximum minimum non-parole period that I can impose is two-thirds of the sentence. The prosecution submit that I should impose at least a 50 percent of the final sentence. I am setting the minimum non-parole period at a term of five years. Ultimately you will be deported. Go back and tell everybody what has happened to you because we do not want this happening again.
Mr Edgar, for the appellant, submitted that, although the Judge took account of all the relevant factors in fixing the final sentence, he failed to take into account the mitigating factors of co-operation with the authorities and the appellant’s guilty plea when fixing the minimum period of imprisonment. Mr Edgar submitted, further, that the Judge had also failed to identify as relevant the fact that the appellant would be deported at the end of his sentence.
In R v Wang this Court held that inevitable deportation may be relevant to the fixing of a minimum period of imprisonment.[5] The appellant in R v Wang pleaded guilty to 14 charges of drug-related offending including supplying methamphetamine and possession of methamphetamine for supply in addition to firearms charges. He was sentenced to eight years three months’ imprisonment and a minimum period of imprisonment of five years was imposed, which equated to slightly less than 61% of the finite sentence. On appeal the minimum period of imprisonment was reduced to four years, which equated to 48.5% of the finite sentence. The significant factor leading to that result was the failure of the sentencing judge to take into account the fact that the offender faced deportation at the completion of his sentence:
[15] Notwithstanding the serious commerciality of the offending, and the appellant being on bail at the time, there were significant considerations in this case which included his guilty plea and absence of criminal convictions in New Zealand which require discrete recognition when assessing the length of the minimum period of imprisonment. Where deportation is to follow and elements of community protection do not exist, the minimum term might not in some circumstances be as lengthy as otherwise ought to be the case. Our conclusion is that a term which equates to 60 percent of the finite sentence was, when viewed overall, too high and that the minimum period of imprisonment of four years, representing a little under 50 percent of the finite sentence, is the appropriate maximum.
(emphasis added)
[5] R v Wang [2009] NZCA 118 at [15].
Ms Bicknell, for the Crown, acknowledged that the Judge did not record the relevant mitigating factors separately in his consideration of a minimum period of imprisonment but submitted that it was evident from his earlier consideration of the factors leading to the determinate sentence that the Judge had considered these factors in fixing the minimum period of imprisonment and, in any event, the period imposed was not manifestly excessive given the nature of the offending.
Ms Bicknell sought to distinguish Wang on the basis that it involved a much smaller amount of methamphetamine than the present case (78.5 grams) and dealing within New Zealand rather than importation. She also submitted that an offender who acted in the role of a courier should be regarded differently and, further, that offenders who were not New Zealanders (and therefore liable to deportation) should not be treated more favourably than New Zealanders who faced similar charges. In this regard, she submitted that the sentencing Judge had been clear about the relationship between deportation and deterrence in his exhortation of the offender to “go back and tell the others”.
Ms Bicknell also submitted that the issue of community protection extended beyond the New Zealand community and that the Court could properly have regard to the wider international community. We do not accept this submission. It is clear from the Judge’s sentencing notes that he had in mind the effect on the New Zealand community and we think that this is the proper focus. There is nothing to suggest that Parliament intended New Zealand courts to take into account community interests beyond those that affect New Zealand.
Although a judge fixing a minimum period of imprisonment is not required to refer specifically to the factors already canvassed in setting a determinate sentence, it is desirable that the reasoning behind the decision is apparent. In the present case it is not clear that the Judge did take into account all of the previous factors because at [12] and [13] he identified two factors specifically and did not refer to the other factors that were relevant in fixing the finite sentence. Although not expressed as such, those factors appear to have been denunciation and deterrence related to the nature of the offending and the amount of the methamphetamine involved. Electing to identify these factors suggests that they, rather than the other unspecified factors, influenced the decision.
Nor is it clear that the Judge took into account the fact that the appellant faced deportation upon the completion of his sentence. Whilst the direction to “go back and tell the others” could be interpreted as recognition that the appellant will be deported, it does not suggest that this fact was viewed as significant in terms of assessing the appropriate length of the minimum period of imprisonment.
Further, the minimum period of imprisonment imposed in itself suggests that these factors were not taken into account. The minimum period of imprisonment imposed on the appellant equated to 62.5% of the finite term, four months short of the statutory maximum available of 66%. Neither counsel was able to cite a case in which a higher period has been imposed.
In Jellyman v R a minimum period of imprisonment was imposed that equated to 55.5% of the finite sentence.[6] That case involved charges of supplying methamphetamine, possession of methamphetamine for supply, receiving, possessing explosives, unlawful possession of a firearm and money laundering to which the offender pleaded guilty and was sentenced to nine years’ imprisonment with a minimum period of imprisonment of five years. Although the sentencing Judge did not refer expressly to mitigating factors when imposing the minimum term, the appeal was dismissed on the basis that the mitigating factors had been taken into account in setting the finite sentence and there were no other mitigating circumstances relevant to setting the minimum period of imprisonment. This Court considered that, viewed overall and by comparison with other decisions, the minimum period was not excessive.
[6] Jellyman v R [2010] NZCA 546 at [12].
In comparison, in Chen v R a minimum period of imprisonment of eight years, which equated to just under 60% of the finite sentence, was regarded as too high.[7] That case involved the importation of 997.8 grams of methamphetamine and the possession for supply of a further 1,992 grams. The offender was not at the highest level in the chain and was remorseful. Counsel in that case had provided a schedule of cases where minimum periods of imprisonment were imposed for offending falling with band 4 of Fatu. In the majority of cases where a minimum term of imprisonment was imposed the term was between 40% and 50% of the finite sentence.[8]
[7] Chen v R [2010] NZCA 552 at [36].
[8]The schedule referred to R v Tanakura HC Auckland CRI-2010-004-4085, 25 May 2010; R v Voong HC Auckland CRI-2007-004-022697, 1 July 2010; R v Luo HC Auckland CRI-2007-004-22697, 1 July 2010; R v Wong HC Auckland CRI-2007-004-15010, 3 April 2009; R v Yeung HC Auckland CRI-2006-092-10945, 27 August 2009; R v Ang HC Auckland CRI-2008-004-12540, 18 November 2008.
Only four cases were noted in which a minimum term of more than 50% of the finite sentence had been imposed.[9] In these cases there were notable features such as a high level of responsibility in the operation, the fact that the offending occurred while the offender was already in jail for previous drug offending and the presence of associated offending such as possession of firearms.
[9]R v Zhou [2009] NZCA 365; R v Collins HC Auckland CRI-2007-090-005304, 3 March 2009; R v Nuku HC Wellington CRI-2008-085-9114, 13 February 2009; R v Murphy CA198/05, 23 November 2005.
In Chen v R, this Court concluded that, having regard to the requirement under s 8(e) Sentencing Act 2002 to take into account the “general desirability of consistency” with sentences imposed on other offenders in similar circumstances, a minimum period of imprisonment of 50% would have been justified. Factors telling against a minimum term longer than 50% in that case were said to include the appellant’s guilty plea, the fact that he was not at the very highest level of the operation, was remorseful and had no previous relevant convictions.
Also of assistance is the decision of this Court in R v Deng which involved the premeditated kidnapping of a young child.[10] The offender was sentenced to nine years’ imprisonment with a minimum period of imprisonment of five-and-a-half years, which equated to 61% of the finite sentence. The sentencing Judge specifically identified the bases for this period as being the need to hold the offender accountable for the harm done, denunciation and deterrence. The ground of appeal was that the Judge had failed to consider the mitigating factors, namely the offender’s remorse, early guilty plea and lack of previous convictions. The minimum period of imprisonment in that case was quashed and substituted with a period of four-and-a-half years, which equated to 50% of the finite sentence.
[10] R v Deng [2009] NZCA 448.
In this case the fact that the minimum period of imprisonment was so close to the maximum available notwithstanding strong mitigating factors and the fact of inevitable deportation suggests to us that that the Judge did not take these factors into account. In our judgment, had those factors been considered the minimum period of imprisonment would have been 50%. A term at that level would properly reflect the mitigating factors and the fact that the appellant faces deportation at the end of his sentence and would be consistent with other similar cases.
We consider the minimum period of imprisonment imposed to be manifestly excessive. The minimum term of imprisonment of five years is quashed and a term of four years substituted.
Solicitors:
Crown Law Office, Wellington for the Respondent
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