Man v R

[2017] NZCA 525

IN THE COURT OF APPEAL OF NEW ZEALAND

CA352/2017
[2017] NZCA 525

BETWEEN	TSZ HO MAN Appellant
AND	THE QUEEN Respondent

Hearing:	16 November 2017
Court:	Harrison, Lang and Ellis JJ
Counsel:	P J Kaye for Appellant E J Hoskin for Respondent
Judgment:	16 November 2017

ORAL JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

1. Following trial before Duffy J and a jury in the High Court at Auckland the appellant, Tsz Ho Man, was found guilty on one charge of importing 2.18 kilograms of methamphetamine.  He was convicted and sentenced to 16 and a half years’ imprisonment with a minimum period of eight years and three months’ imprisonment.[1]  He now appeals against his finite sentence on the ground that it was manifestly excessive. 

Background

[1]R v Man [2017] NZHC 1197.

1. The relevant facts are not in dispute.  Mr Man is a national of Hong Kong.  He arrived in New Zealand from that country some two weeks before the importation of a package containing 2.81 kilograms of methamphetamine.  Within the consignment was 2.3 kilograms in liquid form concealed within boxes of face masks.  The balance was in powdered form concealed within marker pens. 

2. In preparation for the operation Mr Man had rented a room in an Auckland backpackers’ hostel.  The consignment was sent to him there.  He and his co‑offender, Mr Yung, were arrested when the police conducted a surveillance operation.  Mr Yung pleaded guilty before trial.  He accepted a sentencing indication.[2]  On that basis he was sentenced to 10 and a half years’ imprisonment with a minimum period of 40 per cent.[3]

   [2]R v Yung [2017] NZHC 608.

   [3]R v Yung [2017] NZHC 895.

3. Duffy J adopted a starting point of 17 years in sentencing Mr Man.[4]  She was conscious of the starting point of 14 years adopted for Mr Yung.[5]  She carefully explained her reasons for drawing a distinction in the roles played by each of the two men.  Having heard the evidence at trial, she was satisfied that Mr Man’s participation was significantly more culpable.  He was more than a catcher.  He was, as Ms Hoskin points out, responsible for processing the liquid form into methamphetamine powder into New Zealand.  The Judge took specific account of this difference in fixing the starting point.

Decision 

[4]R v Man, above n 1, at [8].

[5]At [5].

1. Before us Mr Kaye submits that Duffy J erred in adopting a starting point of 17 years’ imprisonment.  In his submission an appropriate period was 15 to 16 years.  He focused primarily on the value of the imported drugs, drawing comparative references to the amounts involved in sentences imposed in other importations.[6]  However, value is not the only determinant of culpability.  The particular role played by an offender is also critical.  We are satisfied, based on other authorities of this Court which Ms Hoskin cited for the Crown,[7] that the starting point adopted by Duffy J while stern was within range. 

   [6]R v Fatu [2006] 2 NZLR 72 (CA); O’Connor v R [2016] NZCA 414; R v Yung, above n 2; and R v Yung, above n 3.

   [7]R v Fatu above n 6; R v Nguyen [2009] NZCA 239; O’Connor v R above n 6; Hoang v R [2016] NZCA 335; Chen v R [2010] NZCA 552; R v Rameka [1973] 2 NZLR 592 (CA); and R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612.

2. Mr Kaye also submits that the discount of some six months’ imprisonment allowed to Mr Man was insufficient.  The Judge took into account his personal hardship in serving a sentence in a foreign country.[8]  He has no family here or contacts.  Mr Kaye says that the Judge should have allowed additionally for Mr Man’s good character.  He is 30 years of age and has no previous convictions. 

   [8]R v Man, above n 1, at [16].

3. However, we are not satisfied that Duffy J erred.  She had the benefit of seeing and hearing Mr Man give evidence and of the opportunity to evaluate his character.  She concluded that he was an intelligent, well-educated man.  He had an engineering degree and well-paid employment in Hong Kong.  He had in her words “made a cold blooded rational decision … to carry out this offending simply to obtain money”.[9]  She was entitled to reach that robust view.  And it is well settled that character plays little, if any, part in the sentencing process where a defendant is convicted of major drug importing.[10]

Result 

[9]At [13].

[10]See R v Jarden, above n 7.

1. Despite the spirited argument advanced by Mr Kaye, we dismiss the appeal.  

Solicitors:
Crown Law Office, Auckland for Respondent