Ong v R
[2012] NZCA 258
•21 June 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA754/2011 [2012] NZLR 258 |
| BETWEEN EWE HOE ONG |
| AND THE QUEEN |
| Hearing: 13 March 2012 |
| Court: Stevens, Chisholm and Heath JJ |
| Counsel: H B Leabourn for Appellant |
| Judgment: 21 June 2012 at 11.00 am |
JUDGMENT OF THE COURT
A The appeal against sentence is allowed.
BThe finite sentence imposed in the High Court is set aside. The minimum period of imprisonment remains intact.
CIn substitution, a finite sentence of nine years eight months imprisonment is imposed. For the avoidance of doubt, the appellant is to serve a minimum period of imprisonment of four years six months imprisonment.
____________________________________________________________________
REASONS OF THE COURT
(Given by Heath J)
The appeal
On 26 April 2011, Mr Ong arrived at Auckland International Airport, from Kuala Lumpur. Ostensibly, he was travelling in a tour group comprising 14 people. During a routine Customs’ inspection, 797.9 grams of the Class A controlled drug, methamphetamine, were located in Mr Ong’s shoes. Methamphetamine was also found concealed in the shoes of nine of the remaining travellers.
Mr Ong was interviewed by police officers at the airport. He was co‑operative and provided assistance to the authorities.
Ultimately, Mr Ong and his nine fellow travellers were charged with importing methamphetamine. Mr Ong entered a plea of guilty to that charge in the District Court at Manukau, at the first available opportunity. Subsequently, other members of the group found with the drug pleaded guilty to charges laid against them.
The District Court declined jurisdiction to sentence. All 10 offenders came before Lang J for sentence, in the High Court at Auckland, on 26 October 2011.[1] Mr Ong was sentenced to a term of imprisonment of nine years and 11 months. A minimum term of imprisonment of four years and six months was also imposed.
[1] R v Ong HC Auckland CRI-2011-092-10820, 26 October 2011.
Mr Ong appeals against both aspects of the sentence on the grounds that the sentencing Judge failed to give an appropriate credit for Mr Ong’s co-operation and assistance to both New Zealand Police and Malaysian enforcement authorities. For Mr Ong, it is contended that the absence of such a credit rendered both the finite sentence and the minimum non-parole period manifestly excessive.
Sentencing in the High Court
The sentencing Judge acknowledged that all 10 prisoners acted as couriers. They were to receive little financial gain from their activities. In the context of an offence that carries a maximum penalty of life imprisonment, Lang J took a starting point of 14 years imprisonment.[2] No credit was given for remorse.[3] The Judge considered that any expressions of remorse had come too late and were driven more by the circumstances in which the offenders found themselves than true contrition.
[2] At [29].
[3] At [37].
In sentencing Mr Ong, Lang J said:
[73] Ewe Ong, you appear for sentence at the age of 40 years. You carried 797.9 grams of methamphetamine into New Zealand. You have no previous convictions.
[74] You were the first person spoken to by the Customs officials at the airport, and you say that you knew then that you were in trouble. You also have frankly admitted that you knew that there were drugs in your shoes. You point out, however, that you have co-operated fully with both New Zealand and Malaysian authorities since your arrest.
[75] The probation report suggests that you knew that what you were doing was wrong. Your counsel points out that there may have been difficulties in interpretation that led to the probation officer forming an erroneous view on that issue. Nevertheless, your offending stands out somewhat from that of your fellow prisoners. There is no suggestion in your case that you offended because of your indebtedness or the influence of others. Rather, you sought to obtain some money from this offending so as to be able to provide a better life and education for your family.
[76] From the starting point of 14 years imprisonment, I apply a discount of nine months to reflect your previous good character. I apply a discount of 25 per cent to reflect your guilty pleas. You will receive an end sentence of nine years 11 months imprisonment and I will direct you to serve a minimum term of imprisonment of four years six months.
(emphasis added)
At sentencing, counsel for all prisoners made submissions about the need for a credit to be given to recognise the co-operation and assistance given to law enforcement agencies. Dealing generically with those submissions, Lang J said:
[38] ... It is difficult to ascertain just how much co-operation has been shown by each of you. It is also difficult to know whether, if at all, that co-operation may ever result in some tangible benefit particularly in relation to Malaysian issues.
[39] I consider that it would be speculative of me to give concrete recognition to this factor by reducing the starting point. I would hope that it is taken into account by the Malaysian authorities when you return to Malaysia after you are deported at the end of your sentence. I say that because I am aware from material that has been placed in front of me that it is likely that you will be subject to further investigation, and possible detention, by the Malaysian authorities when you return home. Hopefully, the co-operation that you have shown to date will be taken into account by the Malaysian authorities when they decide what to do with you once you return home. To the extent that I am able to give it recognition, I propose to do so by again reducing the minimum term that I propose to impose.
(emphasis added)
Competing submissions
Mr Leabourn, for Mr Ong, submitted that the Judge erred in holding that a deduction from the starting point for sentence was inappropriate where the sentencing Judge could do no more than speculate as to the value of any assistance given. He contended that Mr Ong’s offer to give evidence could have been the major reason why other accused elected to plead guilty, or at least it could have been a contributing factor.
Mr Raftery, for the Crown, submitted that the provision of credit for assistance that has no real value is contrary to the policy underlying reductions of sentence. He cited R v A and B,[4] as authority for that proposition. While acknowledging that Mr Ong’s assistance was genuine and readily forthcoming, Mr Raftery contended that he was unable to provide any names or details to progress investigations in either New Zealand or Malaysia. Nevertheless, he did accept that, in some cases, “small allowances” have “occasionally” been given for voluntary assistance that has proved fruitless.[5]
[4]R v A and B [1999] 1 Cr App R (S) 52 (CA), approved in R v Hadfield CA337/06, 14 December 2006 at [28]. See also R v Accused (CA293/92) (1993) 10 CRNZ 397 (CA).
[5]For example, R v Latifi [2007] NZCA 372 at [9] and R v Lou HC Auckland CRI-2008-092-1296, 26 September 2008 at [42].
During the course of the hearing, it became clear to us that additional information of both a factual and legal nature would be required. We identified a number of points on which we requested further assistance from counsel. We have now received further submissions from both Mr Raftery and Mr Leabourn. Neither counsel has requested another oral hearing. We are satisfied that the appeal can now be determined, based on the totality of the submissions filed.
Analysis
(a) Assistance to foreign authorities
As a matter of principle, it is appropriate for a New Zealand court to take account of assistance given by an accused to overseas’ law enforcement agencies when determining a finite sentence. In general terms, a sentencing Judge should approach the question in much the same way that has been identified for domestic assistance. In that regard, R v Hadfield[6] is the controlling authority.
[6] R v Hadfield CA337/06, 14 December 2006.
The general thrust of the Commonwealth authorities is that any credit must be linked to tangible or valuable assistance. Two illustrations will suffice.
In R v X,[7] the Court of Appeal of England and Wales considered an appeal against sentence, arising out of a major conspiracy to import cocaine into the United Kingdom from Peru, through Germany. A finite sentence of 16 years imprisonment had been imposed. While the appeal point was directed to whether any credit should be given for assistance provided after sentence, the Court approved the practice of treating assistance provided to foreign authorities as a significant mitigating factor. Auld J, for the Court, emphasised that assistance for which credit is given should be “valuable”:[8]
Where a defendant has given valuable assistance to the authorities, either in connection with the matter with which he is charged or some other matter, the sentencing judge should normally give him some credit for that assistance. The authority for that is Sivan [1988] 10 Cr App R (S) 282. In our view, that principle is not confined to assistance given to prosecuting authorities in this country.
...
[7] R v X [1994] 15 Cr App R (S) 750 (CA).
[8]At 753. In the United Kingdom, the process for recognising assistance to authorities for the purpose of sentencing has now been codified: Serious Organised Crime and Police Act 2005 (UK), ss 73–75.
In Shaw v R,[9] the New South Wales Court of Criminal Appeal considered whether assistance given to authorities in other Australian States should be the subject of credit. In doing so, it also confirmed the practice of giving credit for co-operation with foreign authorities. McClellan CJ at CL, for the Court, said:[10]
Decisions of this Court and of other courts make plain that a sentencing court should consider assistance provided by an offender not only in respect of the offences for which he is being sentenced but for other offences which may have been committed by others: R v Many (1990) 51 A Crim R 54. Furthermore, assistance provided or undertaken to be provided to authorities interstate does not make it irrelevant to sentence proceedings in this State: R v Quinn [2002] NSWCCA 508 at [9] per Sperling J. Even assistance provided to authorities in other countries may be taken into account in sentencing for offences committed in Australia: see R v De Groot van Embden [2003] NSWCCA 156; 140 A Crim R 403; Kauwenberghs v R [2008] NSWCCA 98; R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151; R v Huang (1995) 78 A Crim R 111.
(emphasis added)
[9] Shaw v R [2010] NSWCCA 23.
[10] At [14].
In the context of domestic assistance, the concept of “value” was explained in Hadfield:[11]
Value is a function of quality and quantity. If the information given is unreliable, vague, lacking in practical utility or already known to the authorities, no identifiable discount may be given or, if given, any discount will be minimal. If the information given is accurate, particularised, useful in practice, and hitherto unknown to the authorities, enabling serious criminal activity to be stopped and serious criminals brought to book, the discount may be substantial. …Where, by supplying valuable information to the authorities, a defendant exposes himself or his family to personal jeopardy, it will ordinarily be recognised in the sentence passed. For all these purposes, account will be taken of help given and reasonably expected to be given in the future.
[11]R v Hadfield CA337/06, 14 December 2006 at [28], citing R v A and B [1999] 1 Cr App R (S) 52 (CA) at 56.
In our view, in determining whether to give credit for assistance to foreign authorities, a sentencing Judge may appropriately decide, as a matter of discretion, to give no or minimal credit where the assistance was of little or no value. Viewed in that way, the decisions to which Mr Raftery referred, in which modest allowances were made for voluntary assistance that had proved fruitless, are consistent with that principle.[12]
(b) Was credit required in this case?
[12]See R v Latifi [2007] NZCA 372 and R v Lou HC Auckland CRI-2008-092-1296, 26 September 2008. See also [10] above.
The information provided by Mr Raftery in the Crown’s additional submissions suggests that, while Mr Ong was forthcoming when interviewed by Malaysian police officers in New Zealand, he provided little information that could have assisted in the apprehension of those who had directed the couriers. It also appears that Mr Ong fell well short of providing a full picture of the way in which the syndicate worked, despite describing himself as “head of the delegation” of people who brought the methamphetamine into New Zealand from Malaysia.
As indicated previously, Lang J dealt with submissions based on co-operation and assistance generically.[13] He did not have the advantage of the additional information supplied to us. The Judge made the point that it would be “speculative” for him “to give concrete recognition” for assistance by reducing the starting point for sentence. He suggested that Malaysian authorities may take account of any assistance if there were any possibility of further investigation or detention on the prisoners’ release from custody. A modest allowance was made by reducing the minimum term of imprisonment as opposed to the provision of a credit to deduct from the starting point for the finite sentence.[14]
[13] See [8] above.
[14] R v Ong HC Auckland CRI-2011-092-10820, 26 October 2011 at [39], set out at [8] above.
The precise reduction in the minimum non-parole period is not entirely clear. The term of four years six months imprisonment represents 45 per cent of the finite sentence. The maximum minimum non-parole period that could have been imposed was two-thirds of the finite sentence: approximately six years six months imprisonment. We think it safe to assume that, leaving the allowance for assistance to one side, the Judge was likely to have imposed a minimum period representing about 50 per cent of the end sentence. That equates to a credit of something in the order of five to six months imprisonment.
We are satisfied that a credit of between five and six months imprisonment reflected adequately the value of the assistance provided both to the New Zealand and Malaysian authorities; indeed, it could be seen as generous. However, there is a separate question of principle, as to whether the Judge constructed the sentence in the correct way. Was he entitled to give the credit by deducting it from the minimum period of imprisonment?
(c) Construction of the sentence
In R v Pitceathly,[15] applying R v Nguyen[16] this Court allowed an appeal against sentence on the grounds that a credit that ought to have been taken into account as a reduction from the starting point was deducted from the otherwise applicable minimum term of imprisonment. The Court regarded that approach as an error in principle. With respect, we consider that Lang J made the same mistake.
[15] R v Pitceathly [2010] NZCA 95 at [25]–[26].
[16] R v Nguyen [2009] NZCA 239.
In cases involving assistance to law enforcement agencies, the proper approach is to identify a credit for the mitigating factor which is independent of any reduction arising from other mitigating factors and any guilty plea. While, in Hadfield, the Court accumulated credit for mitigating factors (including an early guilty plea) the way in which the Court expressed itself can be readily explained by Hadfield pre-dating the decisions of both the Court of Appeal and Supreme Court in Hessell v R.[17] The present orthodoxy is for other mitigating factors to be taken into account before deduction of a credit for a guilty plea. The credit for a guilty plea should not be more than 25 per cent.[18]
[17] Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298 and [2010] NZSC 135, [2011] 1 NZLR 607.
[18] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
On Lang J’s approach, a credit of nine months was given for prior good character and an allowance of 25 per cent was made for the early guilty plea.[19] With a starting point of 14 years imprisonment, reduction of the nine months for previous good character and application of the 25 per cent credit for the guilty plea to the reduced starting point, the end sentence of nine years 11 months imprisonment was reached.
[19] At [76].
Had the Judge made an allowance, in calculating the finite sentence, of (say) five months imprisonment to represent the assistance to Malaysian authorities the end sentence would have been about nine years eight months imprisonment. Taking a 50 per cent minimum non-parole period, the minimum period of imprisonment would have been approximately four years 10 months.
Stevens and Heath JJ take the view that the appeal ought to be allowed in order to correct the error in principle that has emerged. Chisholm J would have dismissed the appeal on the grounds that, when viewed in combination, the finite term and minimum period of imprisonment do not represent a manifestly excessive sentence. What follows represents the majority’s views.
To correct an error of this type, it is necessary to reduce the finite sentence, in order to bring to account the credit to be given for the assistance. However, the corollary of doing so is the need to remove the credit used to fix the minimum term. That has the effect of increasing the minimum non-parole period. We propose to adjust the finite sentence to correct the error, on the basis set out earlier.[20] We now consider whether there is any reason why we should not increase the minimum term.
[20] See [25] above.
The question whether it was appropriate to reduce the minimum term for assistance given to the authorities was raised by the Court during oral argument, in response to Mr Leabourn’s submission that the minimum term was manifestly excessive. In its further submissions, the Crown did not seek to increase the minimum term, even though the issue was live.
Because the Crown has not specifically sought an increase to the minimum term, we are not prepared to adjust that part of the sentence. If the Crown had raised that possibility, it would have been open for Mr Ong to seek leave to withdraw the appeal. Although that means that the outcome of the appeal is more beneficial to Mr Ong than it ought to have been, we consider that, in those circumstances, it would be unjust to increase the minimum term.
We have considered whether this approach raises any question of unjust disparity, as between co-offenders, in respect of the finite sentence. The evidence satisfies us that Mr Ong gave earlier and more useful information to New Zealand authorities which may, as Mr Leabourn submitted, have been a contributing factor to the entry of pleas of guilty by other accused. That being so, we are satisfied that no unjust disparity arises out of the way we have dealt with Mr Ong’s appeal.
Result
For the reasons given, the appeal against sentence is allowed. The finite sentence imposed in the High Court is set aside. In substitution, a sentence of nine years eight months imprisonment is imposed. The minimum term of imprisonment of four years six months imprisonment remains intact.
Solicitors:
Crown Law Office, Wellington for Respondent
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