Pai v R
[2020] NZCA 146
•6 May 2020 at 12.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA18/2019 [2020] NZCA 146 |
| BETWEEN | HAO-JEN PAI |
| AND | THE QUEEN |
| Hearing: | 3 March 2020 |
Court: | Courtney, Ellis and Brewer JJ |
Counsel: | B L Sellars QC for Appellant |
Judgment: | 6 May 2020 at 12.30 pm |
JUDGMENT OF THE COURT
AThe application for extension of time to appeal is granted.
BThe appeal is allowed.
CThe sentence and MPI are quashed.
DThe substituted sentence is 10 years and 10 months’ imprisonment with a MPI of five years and five months’ imprisonment.
____________________________________________________________________
REASONS OF THE COURT
(Given by Brewer J)
Introduction
On 25 September 2015 Lang J sentenced Mr Pai to 12 years and eight months’ imprisonment on one charge of importing methamphetamine and one charge of possessing methamphetamine for supply.[1] Lang J also imposed a minimum period of imprisonment (MPI) of 50 per cent of the sentence. Mr Pai entered pleas of guilty to the charges having received a sentence indication from Faire J on 31 July 2015.[2]
[1]R v Pai [2015] NZHC 2345 at [16] [Sentencing decision].
[2]R v Pai [2015] NZHC 1808 [Sentence indication].
Mr Pai now wishes to appeal his sentence contending it is manifestly excessive. He submits also that no MPI should have been imposed.
Mr Pai filed his notice of appeal on 23 January 2019. That is about three years and three months out of time.[3] Accordingly, Mr Pai applies to the Court to extend the time for filing the notice of appeal.
[3]Criminal Procedure Act 2011, s 248(2).
The Crown opposes Mr Pai’s application.
Mr Pai has filed an affidavit in support of his application. In it he explains that as a young Chinese man with very limited English he had little knowledge of the New Zealand legal system and tried unsuccessfully for some time to find a lawyer with whom to discuss his case. He deposes that the counsel who represented him at sentencing had told him the sentence was a fair one and that an appeal could not succeed. Mr Pai says it was only a change of cellmates that brought Ms Sellars QC’s name to his attention.
In R v Lee, this Court said that:[4]
… A long delay is a major factor weighing against leave being granted and, if unexplained, would usually be decisive.
[4]R v Lee [2006] 3 NZLR 42 (CA) at [115].
Mr Pai filed his notice of appeal within the period which would otherwise entitle his case to be assessed through the lens of the new tariff case on methamphetamine offending, Zhang v R.[5] One of the cases considered by the Court in Zhang was that of Mr Yip.[6] He was in a similar position to Mr Pai in that he brought his appeal approximately two years and nine months out of time. The Court granted Mr Yip’s application.
[5]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [188].
[6]At [282]–[310].
Ordinarily, a delay of this magnitude would require considerable scrutiny. But, given the nature of the Zhang judgment, and acknowledging Mr Pai’s personal circumstances as a foreign national with limited English, we grant Mr Pai’s application and extend the period for the filing of his notice of appeal.
Our task is to inquire whether there is an error in Mr Pai’s sentence such that a different sentence should be imposed.
Background
On 5 November 2014 Mr Pai and four of his friends flew to New Zealand from Taiwan for a holiday. Mr Pai was 22 years old. They were due to leave New Zealand on 19 November 2014.
At some point in their holiday the five friends went to the Westfield Mall in Manukau. There they were approached by a stranger, a middle-aged Taiwanese man who called himself Robert. The man told the group he had a proposition that could make them some money. He told the group he would pay them $20,000 if they rented a house and received a package on his behalf.
Mr Pai and one of his friends (Mr Chien) accepted the offer. They agreed to rent a house for two months and receive a consignment on behalf of “Robert” for which they would be paid $10,000 each.
The man gave Mr Pai a cellphone and instructed him to use the phone to communicate with him. At the man’s request, Mr Pai handed over his Taiwanese passport so that the man could photocopy it.
The three friends of Mr Pai and Mr Chien did not want to have anything to do with the man’s proposal. Indeed, they changed their ticketing and left New Zealand on 15 November 2014.
Mr Pai and Mr Chien, on the other hand, stayed in New Zealand and rented a house. The power supply was registered to Mr Pai and the power was connected on 13 November 2014.
Time went by. It can be inferred the consignment Mr Pai and Mr Chien were waiting for was delayed. Mr Pai and Mr Chien changed their ticketing to leave New Zealand at least six times.
On 28 November 2014 a consignment of two crates containing a total of 15 machines was sent from Taiwan addressed to Mr Pai at the address he and Mr Chien had rented.
On 1 December 2014, a New Zealand Customs Client Code was applied for in Mr Pai’s name, with a copy of his passport being provided with the application.
On 2 December 2014, a Licensed Customs Broker created a New Zealand Customs entry for the consignment which declared the contents as “machines for working wire”.
On 5 December 2014, New Zealand Customs examined the consignment which had arrived by air freight. It consisted of two plywood crates. One crate contained 12 wire drawing machines and the other crate contained three larger wire drawing machines. All the machines were bolted to metal blocks. Inside the metal blocks was methamphetamine.
The total weight of methamphetamine inside the metal blocks was 22.6 kilograms. The summary of facts gives the estimated street value as between $6,364,160 and $11,932,800.
On 9 December 2014, the Licensed Customs Broker emailed the consignee email address provided in the client code application to confirm the consignment would be delivered at midday on Thursday, 11 December 2014. The email included a request for the delivery address to be confirmed.
An unknown person purporting to be Mr Pai replied to the email advising the delivery address was that of the house rented by Mr Pai and Mr Chien.
Mr Pai and Mr Chien then changed their flights to a standby flight for Thursday, 11 December 2014 with a firm booking for Friday, 12 December 2014.
The machines, in their two crates, were delivered to the rental address at 1.17 pm on Thursday, 11 December 2014. Mr Pai signed for the delivery.
Mr Pai then caught a taxi to a tool shop and bought tools including a hammer. Upon his return Mr Pai and Mr Chien spent approximately 30 minutes removing the 15 machines from their containers and carrying them into the address.
The next day, the pair went to Auckland International Airport and checked in for their flight to go back to Taiwan. They were arrested.
Mr Pai still had the keys to the rental address.
Mr Pai and Mr Chien admitted their involvement.
Mr Pai asked for a sentence indication on the basis he had no previous criminal history of any sort. The PAC report assessed him as having a low likelihood of further offending and a low risk of harm to others in the community. The following is taken from the PAC report:
Mr Pai said prior to coming to New Zealand for the trip, he was in a chaotic stage of his life in that, he lost a large amount of money in the stock market and had borrowed money creating a significant amount of debt; “I was under a lot of stress and I didn’t tell my parents about my debt”. He agreed that the main driver for his offending was financial gain; and he did not know the serious consequences of his actions. Mr Pai said since his incarceration, he has learnt more about drugs and its serious impact on people; and he then realised how serious his offending was; how many victims could be affected and how New Zealand society would be affected as a whole.
The sentence indication
Faire J considered the aggravating factors of the offending to be the quantity imported, the commerciality of Mr Pai’s involvement, the premeditation and degree of involvement, and the extent of social harm.[7]
[7]Sentence indication, above n 2, at [16].
Faire J accepted that Mr Pai and Mr Chien were not the masterminds of the operation and that it was possible they may not have known what they were importing or the precise quantity:
[17] … In that respect, your culpability is low to medium. The same however cannot be said about your degree of premeditation. Your offending was motivated by financial gain. The house was rented as you were instructed to do. You postponed your flights back to Taiwan multiple times, finally booking them to be the day after the package arrived. You clearly intended to disappear as quickly as possible. When the pallets arrived, you did not just sign for them, you unpacked them using tools which were bought for that purpose and you carried them inside. Each of you displayed a high level of premeditation.
Faire J applied the tariff case current at the time, R v Fatu.[8] The case fell within band 4 of Fatu, which was for quantities of more than 500 grams.[9] The starting point range for importing methamphetamine was 12 years to life imprisonment. Faire J said:
[20] The placing within band four for each of you will depend on the quantity of methamphetamine imported and on the role each of you played in the operation.
[8]R v Fatu [2006] 2 NZLR 72 (CA).
[9]At [36].
Faire J reviewed seven previous cases he found relevant to his task.[10] He considered Mr Pai and Mr Chien acted as “catchers”. He said:
[28] The submission that the offending was due to your naivety has only limited weight. You were recruited very quickly by a complete stranger. You were offered a substantial payment and you accepted the instructions without question. It is not clear on the summary of facts if your suspicions that an illegal transaction was taking place were aroused. In any case, I consider that any naivety you may have had is less than the naivety shown by the defendant in R v Soles.[11]
[10]Sentence indication, above n 2, at [25]: R v Nguyen [2009] NZCA 239; R v Wong [2009] NZCA 332; R v Shaida HC Auckland CRI-2004-004-6330, 21 September 2004; R v Boyarski HC Auckland CRI-2006-092-12125, 29 May 2007; Chen v R [2010] NZCA 552; Solicitor-General v Huang [2011] NZCA 436; and R v Soles [2014] NZHC 2665.
[11]R v Soles, above n 10. Mr Soles imported six kilograms of methamphetamine concealed in a suitcase given to him by Nigerian scammers. He was 73 years old. His culpability arose from wilful blindness. The Judge accepted Mr Soles fell victim to a scam out of his own naivety and adopted a starting point of 10 years’ imprisonment.
Faire J adopted a starting point of 18 years’ imprisonment for both Mr Pai and Mr Chien.
As for personal mitigating factors, Faire J gave indications only, recognising that a full consideration should be left to sentencing.[12] The Judge considered a 20 per cent discount for guilty pleas would be appropriate.[13]
[12]Sentence indication, above n 2, at [32].
[13]At [33].
Faire J also accepted a MPI of 50 per cent should be imposed.[14] In doing so he reviewed the basis for ordering a MPI.[15]
[14]At [41].
[15]At [34]–[40].
The actual sentence indication given to Mr Pai and Mr Chien was 14 years and four months’ imprisonment with the reservation that the end sentence could be lower depending upon other mitigating factors.[16]
The sentencing
[16]At [42].
It fell to Lang J to sentence Mr Pai and Mr Chen. He did that on the basis of Faire J’s indication, but taking into account the submissions of counsel at the sentencing hearing. The indicated starting point of 18 years’ imprisonment remained the starting point.
Lang J increased the discount for guilty pleas by four months.[17] That took the discount from three years eight months’ imprisonment to four years’ imprisonment (22 per cent).
[17]Sentencing decision, above n 1, at [7].
The Judge gave a global discount of one year four months’ imprisonment (7.4 per cent) to take account of the following personal mitigating factors:[18]
(a)age and no previous criminal record;
(b)greater difficulty serving a sentence of imprisonment as foreign nationals who speak no English; and
(c)expressions of remorse.
[18]At [8]–[11].
These discounts produced an end sentence of 12 years eight months’ imprisonment.
Lang J also dealt with the issue of whether he should revisit Faire J’s decision that it would be appropriate to impose a MPI of 50 per cent. The Judge considered a MPI imprisonment of 50 per cent was appropriate and imposed it for both men.[19]
The appeal
[19]At [15].
Ms Sellars submits that Faire J mischaracterised Mr Pai’s role in the importation of the methamphetamine. This led to an overstatement of Mr Pai’s culpability and hence the starting point of 18 years’ imprisonment was unjustifiably high. In her submission, Faire J should have found that Mr Pai acted with “extreme youthful naivety” and, in the language of the United Kingdom sentencing guidelines endorsed by this Court in Zhang, should have concluded Mr Pai played a lesser role. Ms Sellars points to Zhang and decisions of the High Court which post-date Zhang[20] as demonstrating that Mr Pai’s starting point is disproportionately high.
[20]R v Fangupo [2019] NZHC 2896; and R v Cutler [2019] NZHC 2737.
In respect of the MPI, Ms Sellars submits it was not justified. Both Faire J and Lang J referred, in various terms, to what amounts to a “practice” of imposing an MPI in cases where the end sentence exceeds nine years’ imprisonment. This Court in Zhang directed that if there is such a practice then it must cease.[21]
Discussion
[21]Zhang, above n 5, at [172].
We begin by observing that the previous tariff case, Fatu, had separate bands for supplying, importing and manufacturing methamphetamine. The highest band, band 4, provided a sentence range of 12 years to life imprisonment where the amount imported was 500 grams or more.[22] The Court in Zhang eliminated separate bands for the three modes of offending. The Court also divided Fatu band 4 into two parts, thus creating a band 5. Band 5 applies to quantities of methamphetamine in excess of two kilograms and the band range is 10 years to life imprisonment.[23]
[22]Fatu, above n 8, at [36].
[23]Zhang, above n 5, at [125].
Ms Sellars submitted that Faire J’s assessment of the starting point is too high, partly because the starting point for Fatu band 4 (importing) was two years higher than the starting point for Zhang band 5. We do not accept that submission. Fatu required, and Zhang requires, a starting point to reflect the culpability of the offender in respect of the offending. The quantity of methamphetamine concerned places offending within a particular band and will influence where in the band it is placed initially. But then role comes into the assessment. Culpability is linked to role and role will influence where in the band the starting point is fixed. In appropriate cases, a minor role can move the starting point to a lower band. A leading role will move the starting point higher in a band.
The fact that Fatu band 4 (importing) started at 12 years’ imprisonment for importing 500 grams or more of methamphetamine does not mean that a starting point assessed thereunder will by that reason be higher than a starting point assessed under Zhang band 5. The focus is on doing justice in the individual case by taking due account of all the relevant circumstances.
We emphasise that Zhang does not provide for an overall lowering of sentences for commercial involvement in the methamphetamine trade.[24] Zhang provides for more flexibility in sentencing at the lower end of culpability (in particular). At all levels, role is to be considered carefully in deciding where within a sentencing band a defendant should be placed.
[24]Zhang, above n 5, at [11].
We will assess Mr Pai’s sentence through the lens of Zhang to determine whether an error has been made such that his end sentence is manifestly excessive and should be reduced. We will also assess whether a MPI should have been imposed.
The quantity of methamphetamine was 22.6 kilograms. That puts the case well into band 5, being more than 11 times the entry level of two kilograms.
We assess Mr Pai’s role as significant, but at the lower end. As with Mr Zhang, he served an operational function within the chain. He provided “Robert” with his passport, rented a house to be used as the consignment address, signed for the consignment, bought tools to open it, opened it and moved the machines into the house.
Mr Pai’s motive was financial — he needed money and was to receive $10,000. However, that sum is completely disproportionate to the street value of the drugs. He did not direct others and instead received instructions.
There is no evidence Mr Pai was told what drug was to be imported or the quantity. But clearly this was a significant operation and that would have been obvious to Mr Pai. It can be inferred that the type of drug and its quantity was immaterial to Mr Pai.
Mr Zhang assisted with importing a lesser quantity of methamphetamine than Mr Pai (17.9 kilograms as opposed to 22.6 kilograms) but took a more active role. Mr Zhang came to New Zealand for the purpose of assisting with the importation, took steps to ensure the consignment cleared Customs, and his role extended to packaging the drugs for sale.
This Court considered a starting point of 15 years’ imprisonment appropriate for Mr Zhang.[25] Balancing Mr Pai’s lesser role with the greater quantity of methamphetamine, we assess 15 years’ imprisonment as also being the appropriate starting point for Mr Pai.
[25]Zhang, above n 5, at [257]. The starting point adopted in the District Court was 17 years’ imprisonment. But Mr Zhang challenged only his MPI on appeal. The Court nevertheless considered what Mr Zhang’s appropriate starting point would have been if assessed under the new guidelines.
Ms Sellars does not take issue with the discounts accorded to Mr Pai. However, Ms Sellars emphasised what she submitted was Mr Pai’s naivety and youthful impulsiveness in agreeing to “Robert’s” proposition. She submitted that Faire J did not take this into account sufficiently, and so was wrong to conclude that Mr Pai’s offending was significantly premeditated.
Premeditation is a factor to be taken into account in assessing the culpability of offending. Personal factors such as age and naivety are for the second stage of the sentencing process. Here they are run together. In reaching our assessment of the starting point we considered:
(a)The decision to accept “Robert’s” proposal may well have been impulsive. It was a decision to join a conspiracy to import controlled drugs. It was a decision Mr Chien was also prepared to make, but it was a decision their three companions shied away from to the extent they truncated their holiday in New Zealand.
(b)Renting the house, providing his passport, changing his flights at least half a dozen times and waiting for the consignment for a period from at least 13 November 2014 to 11 December 2014 shows Mr Pai had a continuing readiness to commit the offence of importing the drug.
We consider the discounts awarded by Lang J to be appropriate. The sentence becomes:
Initial starting point: 15 years’ imprisonment
Personal factors discount: 1 year 1 month’s imprisonment (7.4%)
Final starting point: 13 years 11 months’ imprisonment
Guilty plea discount: 3 years 1 month’s imprisonment (22%)
End sentence: 10 years 10 months’ imprisonment
It follows we will allow the appeal against sentence.
MPI
As the Court said in Zhang, minimum periods of imprisonment must not be imposed as a matter of routine or in a mechanistic way.[26] Section 86 of the Sentencing Act 2002 provides:
[26]At [169].
(1) If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular sentence.
(2) The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:
(a) holding the offender accountable for the harm done to the victim and the community by the offending:
(b) denouncing the conduct in which the offender was involved:
(c) deterring the offender or other persons from committing the same or a similar offence:
(d) protecting the community from the offender.
(3) [Repealed]
(4) A minimum period of imprisonment imposed under this section must not exceed the lesser of—
(a) two-thirds of the full term of the sentence; or
(b) 10 years.
(5) For the purposes of Part 6 of the Criminal Procedure Act 2011, an order under this section is a sentence.
It follows that each case must be analysed properly against the requirements of s 86. This Court in Zhang heard submissions to the effect that it had become a practice to impose MPIs in serious drug offending where the end sentence was nine years or longer. The Court said that any such practice must stop.[27]
[27]At [172].
Here, Ms Sellars submits that neither Faire J nor Lang J properly analysed s 86 but fell into adopting this practice. Ms Sellars’ submission is that the s 86(2) factors do not apply to Mr Pai. He is a first offender who fell into offending through naivety and youthful ignorance. He is subject to a significant sentence and no further denunciation or giving effect to the principle of deterrence is necessary.
We do not agree that either Faire J or Lang J adopted a mechanistic approach to their decisions that a MPI was necessary. Faire J set out the law, including the purpose of the imposition of a MPI, and considered the case law.[28] Lang J said, in response to a submission that a MPI was not necessary:[29]
[14] My answer to that submission is that the Court has very few tools available to it to assist in the war against serious drugs. One of the tools available to it is to impose deterrent sentences. I consider it would send entirely the wrong message to importers of drugs if the courts were to refrain from imposing minimum terms of imprisonment in serious cases. I say that because those persons who recruit couriers and catchers of drugs such as you would be able to tell potential recruits that they would be released and deported after serving just one-third of their sentence of imprisonment. That may serve to encourage people like you to become involved in the importation of drugs in the future.
[15] In the ordinary course of events you would be eligible to apply for parole after serving approximately four years three months imprisonment. By New Zealand standards, this importation of methamphetamine was extremely large. It was highly valuable and if it had not been intercepted it would have caused untold misery for citizens of this country. In cases of serious drug offending, the courts now routinely impose minimum terms of imprisonment of 50 per cent. I see no reason to depart from that practice in the present case.
[28]Sentence indication, above n 2, at [34]–[41].
[29]Sentencing decision, above n 1.
In making his final comments, Lang J was not adopting a practice. He had considered whether to depart from what was commonplace and concluded he should not.
In deciding that Mr Zhang’s MPI should remain, the Court said:[30]
[263] … However, this was knowing participation in substantial, commercial-scale drug offending with potentially very serious social consequences. It is unmitigated by vulnerability of any kind. Absent imposition of a minimum period, Mr Zhang would be eligible for release after just two years and 10 months’ imprisonment. We consider that would send an unacceptable message to those participating, or minded to participate, in commercial-scale drug dealing. Mr Zhang is now remorseful and he poses little future risk to New Zealand, but deterrence, denunciation and accountability for commercial-scale drug offending, all require he serve a longer sentence than two years and 10 months’ imprisonment. We therefore agree with the Judge that a minimum period of 50 per cent of the end sentence was justified in this case.
[30]Zhang, above n 5.
We consider that this analysis, applied relevantly to Mr Pai’s case, yields the same outcome for Mr Pai. It follows we consider it was appropriate for an MPI of 50 per cent of the final sentence to be imposed. That now amounts to five years and five months’ imprisonment.
Decision
The application for extension of time to appeal is granted.
We find the sentence of 12 years and eight months’ imprisonment was manifestly excessive. We find also that the imposition of a 50 per cent MPI was appropriate.
The appeal is allowed. Mr Pai’s sentence and MPI are quashed. They are replaced with a sentence of 10 years and 10 months’ imprisonment and a MPI of five years and five months’ imprisonment.
Solicitors:
McVeagh Fleming, Auckland for Appellant
Crown Law, Wellington for Respondent
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