Gan v The Queen

[2017] NZCA 569

IN THE COURT OF APPEAL OF NEW ZEALAND

CA562/2016
[2017] NZCA 569

BETWEEN	YIXIN GAN Appellant
AND	THE QUEEN Respondent

Hearing:	27 November 2017
Court:	Winkelmann, Venning and Duffy JJ
Counsel:	T Cooper and I Archibald for Appellant E Hoskin for Respondent
Judgment:	7 December 2017 at 10 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.

BThe appeal against sentence is allowed.

CThe minimum period of imprisonment of eight years and four months is quashed and replaced with a minimum period of seven years.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

1. Following a trial before Downs J and a jury in the High Court at Auckland, Ms Gan was convicted of two charges of importing pseudoephedrine and one charge of possessing pseudoephedrine for the purpose of supply.  Downs J sentenced her to 14 years’ imprisonment with a minimum period of imprisonment (MPI) of eight years and four months’ imprisonment.[1]

   [1]R v Gan [2016] NZHC 2349.

2. Ms Gan does not challenge the end sentence nor the imposition of an MPI.  She challenges the length of the MPI.  At eight years and four months it was 60 per cent of the end sentence.  Ms Gan submits the length of the MPI was manifestly excessive and the appropriate MPI in the present case was 50 per cent or seven years.

3. The appeal was filed out of time.  No issue is taken with that by the Crown.  There is no prejudice.  The application for an extension of time to appeal is granted.

Ms Gan’s offending

1. The first two charges (importation of pseudoephedrine and possession of pseudoephedrine for supply) related to the importation by Ms Gan of at least 250 kilograms of ContacNT from China to New Zealand in October 2013. 

2. Ms Gan disguised the importation through the use of her legitimate business in the course of which she imported goods, largely foodstuffs, to New Zealand from China.  The goods were ultimately destined for Tonga.  While in transit in New Zealand the ContacNT, falsely labelled as potato starch or corn starch, was removed and replaced with packages of actual potato starch or corn starch.  The replaced goods were then forwarded to Tonga while the drugs remained in New Zealand.  The Judge assessed the value of the ContacNT converted to pseudoephedrine at approximately $8,900,000.[2]

   [2]At [7].

3. The third charge (importation of pseudoephedrine) was a representative charge.  Earlier, between 21 May 2012 and 11 June 2013, Ms Gan had arranged four shipments from China to New Zealand.  The Judge was unable to ascertain how much ContacNT had been brought in or whether it was brought in on more than one occasion.  However, he found Ms Gan had imported a “not inconsiderable commercial quantity”.[3]  That conclusion was supported by the fact that during that period not less than $3,201,000 in cash was deposited to Ms Gan’s bank accounts. 

Sentencing decision

[3]At [11].

1. In sentencing Ms Gan the Judge said that she was the primary architect, at least in New Zealand, of the October 2013 importation.[4]  Taking a starting point of 13 years’ imprisonment on the October 2013 importation, the Judge then uplifted that by three years to reflect the totality of her offending.[5]  In mitigation he deducted six months for the fact Ms Gan was a first-time offender, 12 months because she had voluntarily returned to New Zealand from China to face the charges, and six months for her personal circumstances, particularly that her family (including three young children) remained in China.[6]  He did note, however, that she was fluent in English and well-adjusted to western life.

   [4]At [12].

   [5]At [23].

   [6]At [24]–[26].

2. The Judge then found that the criteria for the imposition of an MPI were made out.  He accepted that Ms Gan was at a low risk of reoffending but considered that parole eligibility after only one-third of her sentence would be inconsistent with the imperatives of denunciation and deterrence, particularly general deterrence in the context of large-scale commercial drug trafficking.[7] 

   [7]At [30].

3. The Crown had suggested an MPI of 50 per cent should be imposed, consistent with the MPI imposed in relation to Mr Shao and Mr Tran, who dealt in the drugs once they had been imported.  But the Judge concluded that Ms Gan’s role was greater than theirs and that, but for her, the drugs may not have arrived in New Zealand at all.  For those reasons he imposed an MPI of 60 per cent.[8]

Appeal grounds

[8]At [31].

1. In support of the appeal Ms Cooper submitted the MPI of 60 per cent was manifestly excessive and the Judge erred by failing to have regard to Ms Gan’s personal circumstances when fixing the length of the MPI.  Ms Cooper submitted the correct MPI was seven years, which was 50 per cent of the sentence. 

2. Counsel for the Crown, Ms Hoskin, accepted the Crown had suggested an MPI of 50 per cent at sentencing but submitted that an MPI of 60 per cent was available to the Judge. 

Discussion

1. In an appeal against sentence the appellant must show that there was an error in the sentence, and that a different sentence should be imposed.[9]  That can be shown where the sentence is manifestly excessive.[10]

   [9]Criminal Procedure Act 2011, s 250.

   [10]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].

2. Ms Cooper submitted that the criteria for imposition of an MPI of more than 50 per cent had not been made out.  She noted that an MPI of more than 50 per cent has only been imposed in a limited number of cases.  As this Court observed in Choi v R, cases where the MPI has exceeded 50 per cent tend to exhibit notable features such as a high level of responsibility in the operation, offending whilst in jail, or the presence of associated offending.[11]  In the present case the Judge identified that Ms Gan was the primary architect of the importation.  Her level of responsibility in the operation and the extensive and continuing nature of the offending supported the Judge’s view that an MPI of more than 50 per cent was required in Ms Gan’s case.

   [11]Choi v R [2011] NZCA 237, (2011) 25 CRNZ 262 at [18].

3. Next Ms Cooper submitted that the Judge had failed to consider Ms Gan’s personal circumstances when determining the MPI, as is required.[12]  She noted the Judge had not referred expressly to Ms Gan’s personal circumstances. 

   [12]R v Gordon [2009] NZCA 145 at [46]; Choi v R, above n 11, at [5]; and Carpenter v R [2013] NZCA 395 at [22].

4. But as this Court accepted in Choiv R, when fixing an MPI a Judge is not required to refer specifically to the factors already canvassed in setting a determinate sentence.[13]  The issue is whether the reasoning behind the decision for the MPI is apparent.

   [13]Choi v R, above n 11, at [13].

5. While Downs J did not expressly refer again to Ms Gan’s mitigating circumstances when dealing with the imposition of the MPI, he had referred to mitigating circumstances in the three paragraphs immediately before beginning his consideration of the MPI.  Ms Gan’s personal circumstances would have been within his contemplation when fixing the appropriate minimum term.  The Judge also recorded that the pre-sentence report noted an additional personal factor, namely that Ms Gan was at low risk of reoffending, before he directed himself to the relevant statutory considerations set out in s 86 of the Sentencing Act 2002. 

6. The last point Ms Cooper identified was Ms Gan’s return to New Zealand to face the charges.  In fixing the finite sentence the Judge had referred to the fact Ms Gan had voluntarily returned to New Zealand from China to face the charges, and thereby avoided the need for potentially protracted extradition proceedings.  We consider that feature, in addition to Ms Gan’s personal circumstances, was also particularly relevant to the term of the MPI.  Ms Gan’s voluntary surrender to New Zealand for trial was an especially significant feature of her case and deserved more weight than the Judge apparently gave it at the stage of the imposition of the MPI.  It warranted a reduction from what otherwise would have been an appropriate MPI of 60 per cent.

7. For that reason the appeal must be allowed.

Result

1. The application for an extension of time to appeal is granted.  The appeal against sentence is allowed.  The MPI of eight years and four months is quashed and replaced with an MPI of seven years.

Solicitors:
Crown Law Office, Wellington for Respondent