Pratap v R
[2021] NZCA 308
•12 July 2021 at 9 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA190/2021 [2021] NZCA 308 |
| BETWEEN | NITIN PRATAP |
| AND | THE QUEEN |
| Hearing: | 22 June 2021 |
Court: | Kόs P, Brewer and Davison JJ |
Counsel: | J S Kovacevich for Appellant |
Judgment: | 12 July 2021 at 9 am |
JUDGMENT OF THE COURT
A The application for extension of time is granted.
BThe appeal is allowed. The sentence of 13 years’ imprisonment is quashed and substituted with a sentence of 11 years and three months’ imprisonment.
CNo minimum period of imprisonment is imposed under s 86(2) of the Sentencing Act 2002.
____________________________________________________________________
REASONS OF THE COURT
(Given by Davison J)
Introduction
Following a jury trial in 2019 Mr Pratap (the appellant) was found guilty of seven charges of importing a total of 2.369 kilograms of methamphetamine.[1] His wife and co-defendant, Ms Khan, was found guilty on four charges of importing methamphetamine.
[1]Misuse of Drugs Act 1975, ss 6(1)(a) and (2). Maximum penalty life imprisonment.
On 20 December 2019 the appellant was sentenced in the Manukau District Court by Judge Moala to 13 years’ imprisonment.[2] The Judge adopted a starting point of 14 years which she reduced by one year on account of personal mitigating factors related to trial delay and two years spent by the appellant on restrictive EM bail conditions while awaiting trial.[3]
[2]R v Pratap [2019] NZDC 26012.
[3]At [19]–[20].
The appellant now appeals against his sentence on the grounds that it is manifestly excessive. He says the starting point adopted by the Judge was too high, and that the Judge erred in not allowing greater discounts in respect of personal factors.
Application for extension of time to appeal
The appellant’s notice of appeal was filed on 24 March 2021, well out of time.[4] His counsel explains the delay arose because shortly following sentencing the appellant required surgery, and during his recovery was unable to instruct counsel. Thereafter the COVID-19 pandemic restrictions prevented the appellant’s counsel from meeting with him to obtain instructions to appeal.
[4]See Criminal Procedure Act 2011, s 248(2).
While these difficulties may well have been overcome, as the Crown does not oppose the application, we consider that in the circumstances time to appeal should be extended.
The offending
When sentencing the appellant, the Judge summarised his offending and that of his wife and co-offender:
[2] The facts are that at trial much of the evidence was not disputed. Methamphetamine was brought into New Zealand in seven different packages between 12 August 2016 and 22 September 2016. The parcels were addressed to various addresses linked to the two of you. The methamphetamine was concealed in various items: a golf putt set, Thai boxes, tattoo sticker boxes, car lightings, metal tubes and women's shoes. At trial, you both denied knowledge of methamphetamine, let alone importing it. Now, at sentencing, you both argue that you did not have actual knowledge that it was methamphetamine. Rather, that the two of you were reckless that it was methamphetamine.
…
[4] Mr Pratap, your case was that all you did was import car parts for your business and for your customers. You had no idea there was methamphetamine in the parcels. Others had access to your workshop computer and the workshop phone and your work vehicle. You said it did not make any sense that you would use your cellphone, your home, your business, your name for some of these parcels if there was methamphetamine in them. Again, the jury rejected your version of events.
[5] From the evidence at trial, it was clear that you, Mr Pratap, knew it was methamphetamine that you were importing. You were smoking it and you were supplying it to others. From the evidence at trial, it was also clear that Ms Khan knew it was methamphetamine. She knew you were smoking it Mr Pratap, and she was helping you to supply it to others. Mr Pratap, you were involved in importing seven packages, with a total of 2.369 kilograms of methamphetamine. …
…
[8] In terms of the roles of the two of you, the method that the two of you adopted followed a general pattern. Mr Pratap, you would communicate with Nigerian cellphone 1 or cellphone 2. A package containing methamphetamine would then be sent from Africa, Asia or Mexico. Nigerian cellphone 1 would then send the tracking details for that parcel to Ms Khan, and Ms Khan would then convey these to you.
[9] The Crown's case at trial in relation to you, Mr Pratap, is that you were more than just an intended catcher of the packages containing methamphetamine. You were in direct and regular communication with Nigerian cellphone l and the Crown says that this person, at the end of Nigerian cellphone 1, was the overseas facilitator. The Crown's case was that while a number of the packages were addressed to your residential address … or to your business address … you also worked to identify other potential addresses where methamphetamine could be sent … The Crown at trial said that your intention was clearly for you to ultimately take possession of the packages once they had arrived in New Zealand. …
District Court sentencing
Having summarised the appellant’s offending, the Judge noted[5] that his sentencing had been adjourned to await this Court’s decision in Zhang v R,[6] which revisited the guidance as to sentencing for methamphetamine-related offending previously explained in R v Fatu.[7] The Judge briefly referred to the approach to fixing a sentencing starting point by reference to the quantity of methamphetamine involved and the defendant’s role in the offending.
[5]R v Pratap, above n 2, at [6].
[6]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[7]R v Fatu [2006] 2 NZLR 72 (CA).
The Judge noted that the quantity of methamphetamine imported by the appellant placed his offending in band 5 of Zhang with a starting point of between 10 years and life imprisonment.[8] As to the appellant’s role in the offending, the Judge accepted the Crown’s submission that the appellant was a leader in the operation. She rejected the appellant’s claim that his offending was the result of his recklessness as regards the substance being imported rather than having actual knowledge that the parcels contained methamphetamine, and said:
[17] … I am satisfied that you had a leading role in the importations, given that you were in direct communications with a Nigerian facilitator and you arranged to receive those parcels from India, Mexico, China and Nigeria. You arranged for others in New Zealand … to receive parcels in order to limit your own exposure. You were involved with a number of parcels. You used your business address and your home address to receive some of those parcels, and you used your business computer in order to track those parcels to ensure that they arrived safely to you.
[18] There was no evidence during the trial to suggest that there was anyone else above you in the New Zealand side of the operation. There is no evidence that you were acting under duress or you were being directed by anyone or that you were naïve or vulnerable. I am satisfied that you willingly participated in commercial level dealing, and that for your offending Zhang v R has not really changed the starting point that used to apply to you under R v Fatu. I am satisfied that you tick most of the boxes when it comes to the leading category: you have directed others, you have links to the source, there would have been an expectation of financial gain, you used your business for cover. There is, as I have said, no indication that anyone else was higher than you in New Zealand.
[8]R v Pratap, above n 2, at [17]. See Zhang v R, above n 6, at [125].
As we have noted, the Judge adopted a starting point of 14 years’ imprisonment.
Addressing factors personal to the appellant, the Judge noted that there had been a significant delay in progressing his case to trial which was not of his making and allowed a six-month discount for that. She also allowed a further discount of six months for the time spent by the appellant on restrictive EM bail conditions pending trial. This produced an end sentence of 13 years’ imprisonment.[9] The Judge did not address the availability of any further discounts which might have reduced the sentence. She decided not to impose a minimum period of imprisonment pursuant to s 86 of the Sentencing Act 2002 (the Act).[10]
The appeal
[9]At [20].
[10]At [21].
Mr Kovacevich for the appellant says that the appellant maintains that the jury found him guilty on the basis of his reckless importation of the seven packages containing methamphetamine, and that the Judge ought to have characterised the appellant’s role in terms of Zhang as being “lesser” to “significant”. He submits that the appellant was at most a “catcher”, and not an organiser or leader of the importation operation. He submits that on the basis of the appellant’s lesser role, the Judge ought to have adopted a starting point of 10 years, rather than 14 years’ imprisonment.
Mr Kovacevich submits that further discounts should also have been allowed for personal mitigating factors. He refers to the contents of a report placed before the Judge pursuant to s 27 of the Act, and notes that the Judge did not make any reference to this material when sentencing the appellant. Mr Kovacevich submits that the appellant’s cultural background and personal history as detailed in the s 27 report warranted a sentencing discount. He submits that further discounts should also have been allowed to recognise the appellant’s previous good character and his “cultural isolation”.
Starting point
Factual basis for sentencing
The Judge rejected the appellant’s submission at sentencing that he had been reckless but had no actual knowledge that the packages he received contained methamphetamine. The Judge noted that from the evidence at trial it was clear that the appellant had been using the methamphetamine himself and had been supplying it to others, and knew what he was importing.[11] Although the appellant submits that the jury found him guilty on the basis that he had been reckless as regards the substance in the packages, there is no rational basis for his challenge to the Judge’s finding on that issue.
Relevant principles
[11]At [5].
The principles applicable to determining the starting point in relation to methamphetamine-related offending are not in dispute. In Zhang this Court restated the approach adopted in Fatu regarding the relevance of quantity as a useful measure of culpability, observing that the quantity of methamphetamine involved in offending remains a reasonable proxy for both the social harm caused and the illicit gains made from importing and selling it.[12] On this basis, the Court continued the method applied in Fatu of prescribing bands of starting points for methamphetamine offending based on specified quantities of the drug to establish a scale of increasing culpability.[13] As the Judge relevantly noted,[14] where two or more kilograms of methamphetamine is involved, the offending falls within band 5 and will attract a starting point of between 10 years and life imprisonment.[15]
[12]Zhang v R, above n 6, at [10(b)] and [125].
[13]At [10(c)] and [104], referring to Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [38].
[14]R v Pratap, above n 2, at [6].
[15]Zhang v R, above n 6, at [125].
However, as this Court observed in Zhang, while the quantity of methamphetamine is a useful criteria for assessing culpability, quantity alone is not the sole determinant of culpability. As the Court noted:
[104] … The variations in sentence starting point for the same quantity are explicable on the basis of differing degrees of culpability, and that is primarily justifiable on the basis of differences in the role played by the offender.
…
[105] … Setting culpability within bands of that breadth and generality requires not just a numerical scaling based on quantity alone, but at the very least some effort by the sentencing judge to assess the relative role played by that offender in contrast to others sentenced earlier for the same band and category. Nothing else could be said to meet the requisite “full evaluation of the circumstances to achieve justice in the individual case” required by Hessell.
Although this Court in Zhang declined to adopt the “double axis” approach applicable in England and Wales, under which a formal delineation is made between three descriptors of role — “lesser”, “significant” and “leading” — it nevertheless considered that reference to these may assist sentencing judges to determine the appropriate adjustment of the starting point to reflect an offender’s role in the offending.[16] Suffice to say, a “leading” role is indicated by a defendant having had a principal role in the commercial sale and on-supply of methamphetamine in a sophisticated and organised manner motivated by profit. In contrast, a “lesser” role characterises performance of a limited function under direction as part of a larger organisation by those subject to coercion, or who are feeding their own addiction, or for those defendants with their own operations where they are motivated to obtain the drug for their own or joint use on a non-commercial basis. A “significant” role is an intermediate category, and is appropriate to characterise a mid-level role within a more sophisticated organisation more primarily motivated by profit and having commercial aspects.[17]
[16]At [126].
[17]At [126].
Recognition of greater or lesser roles will inform the court’s assessment of an offender’s culpability regarding a given quantity of methamphetamine and will require the court to reflect that culpability by placement within or even between bands.[18] However, access to and the adoption of lower starting points on this basis will only be appropriate where the offender’s role is found to fall within the lesser category and where the quantity of methamphetamine is at the lower end of the relevant range.[19]
Discussion
The starting point
[18]At [110] and [123].
[19]At [123].
Two issues require consideration. The first is whether the Judge was correct to characterise the appellant as playing a “leading” role, as opposed to a “lesser” to “significant” role in the offending. The second is whether the 14-year starting point adopted was within the available range, having regard to considerations of both the quantity of methamphetamine and the appellant’s role.
In support of his submission that the characterisation of the appellant’s role as “leading” is unsupportable, Mr Kovacevic relies on this Court’s decision in Pai v R.[20] Mr Pai and four friends flew to New Zealand for a holiday. The summary of facts to which Mr Pai pleaded guilty states that his group was approached at a mall by a stranger who offered them $20,000 to rent a house and receive a package on his behalf. Two of the group, including Mr Pai, agreed. The other three departed New Zealand in haste.
[20]Pai v R [2020] NZCA 146.
The stranger gave Mr Pai a cell phone and instructed him to use it to communicate with him. Mr Pai and his associate then rented a house and arranged for an electricity supply. The expected package was delayed. Eventually, a consignment of 15 wire-working machines arrived in New Zealand. Concealed inside the metal blocks to which the machines were bolted was 22.6 kilograms of methamphetamine. The machines were delivered to the address Mr Pai and his associate had rented. Mr Pai then purchased some tools and he and his associate took the containers inside that address and removed the machines from them. They were arrested as they attempted to leave New Zealand the next day.
On appeal, this Court assessed Mr Pai’s role as “significant, but at the lower end”, considering him to have served “an operational function within the chain” by playing a significant logistical role under direction from a superior within a larger organisation.[21] There was no evidence he had knowledge of the scale of the operation or any broader detail, and the sum of $10,000 which he was to receive for his role was completely disproportionate to the street value of the drugs he had become involved with.[22] Having regard to the quantity of the drugs involved and his role, this Court considered a starting point of 15 years’ imprisonment was appropriate.[23]
[21]At [52].
[22]At [53]–[54].
[23]At [56].
Mr Kovacevich also relies on Zhang. Mr Zhang pleaded guilty to a single charge of importing 17.9 kilograms of methamphetamine. A Canadian national, he had arrived in New Zealand about a month prior to the arrival of a concealed consignment of methamphetamine addressed to him. He accepted delivery of a package which had been intercepted by New Zealand Customs and the methamphetamine substituted with a placebo substance. Having received the package Mr Zhang proceeded to purchase two 20-litre containers, a large plastic spoon, a plastic mallet, a set of scales and some zip lock bags. He was arrested several hours later sitting in his kitchen transferring what he thought was methamphetamine into the zip lock bags. His role was assessed by this Court as “significant, but at the lower end”.[24] He was more than a mere “catcher”, given he was responsible for travelling to New Zealand to meet a consignment of drugs and for taking steps to make sure it cleared customs. While he was also responsible for repackaging the drugs, it appeared that he was receiving his instructions from someone higher up in the chain of command, and he was not responsible for taking an active role in on-supplying the methamphetamine.[25] This Court noted that in Mr Zhang’s case a starting point of 15 years’ imprisonment would have been appropriate.[26]
[24]Zhang v R, above n 6, at [256].
[25]At [256].
[26]At [257].
Mr Kovacevich submits that the considerably greater quantities of methamphetamine involved in the offending by Pai and Zhang, compared to the 2.369 kilograms imported by the appellant, informs the assessment of the appellant’s culpability relative to those offenders. Furthermore, the appellant’s comparatively lower level of culpability ought to have been recognised by a starting point differential of considerably greater than the one year adopted by the Judge. He submits that the appropriate starting point would be 10 years’ imprisonment.
The Crown submits the Judge’s characterisation of the appellant as playing a leading role in the offending appropriately describes his actions in relation to the importations, and is “uncontroversial” having regard to the authorities. Counsel relies principally on the cases of Hobson v R[27] and Moheebi v R.[28] Ms Hobson, who was one of the six co-appellants in Zhang, was involved in three successful importations totalling 300 grams of methamphetamine, and conspired to import a further 290 grams. This placed her offending, by reference to the amount of methamphetamine actually imported, just above the bottom of band 3 and attracting a starting point of between six and 12 years’ imprisonment. Ms Hobson had a management function in what the Court termed “a relatively unsophisticated operation”.[29] She was responsible for running the New Zealand end of the operation and having contact with a supplier in Thailand. She provided delivery addresses, managed the distribution of the drug within New Zealand, and arranged the remittance of proceeds from the sales overseas. This Court assessed her role as being at the lower end of the leading range and adopted a starting point of nine years on the importation charges, which it uplifted by nine months for the conspiracy charge relating to the planned importation of the further 290 grams.[30]
[27]At [229]–[245].
[28]Moheebi v R [2020] NZCA 343.
[29]Zhang v R, above n 6, at [238].
[30]At [239].
In Moheebi, Mr Moheebi was the sole New Zealand participant involved in two importations totalling almost exactly 500 grams of methamphetamine sent to New Zealand by Iranian contacts. Mr Moheebi was addicted to methamphetamine and had imported the drug to use himself and was also hoping for financial gain from distribution. This Court described the offending as “not sophisticated” and “amateurish”.[31] Although an issue arose regarding the purity of the methamphetamine the outcome of which could place the offending either at the top of band 3 or bottom of band 4, such placement would make little difference to the assessment of culpability. For his leading role in the low band 4 importation, this Court considered a starting point of 11 years would be appropriate.[32] The Court considered Mr Moheebi’s role to be greater than Ms Hobson’s. Unlike her, he was not “a link in a wider supply chain, but rather more, the entrepreneur”.[33]
Analysis
[31]Moheebi v R, above n 28, at [22].
[32]At [23].
[33]At [21].
Here, the quantity of methamphetamine places the appellant’s offending within band 5.[34] His role in arranging the importations and directing the activities of his wife, Ms Khan, means that he satisfies most of the “leading” role criteria specified in Zhang.[35]There is also no evidence that he was taking instructions from anyone or that he was splitting the profits derived from selling the methamphetamine with his overseas supplier. This was nevertheless a small-scale operation when compared to many commercial methamphetamine operations, and especially those cases involving the importation and distribution of hundreds of kilograms of the drug. In our view the comparatively small scale of the offending is of significance and, notwithstanding the leading role played by the appellant, the appropriate starting point here would be at the lower end of band 5, and within a range of 12–13 years’ imprisonment.
[34]Zhang v R, above n 6, at [125].
[35]At [126].
This range also compares with the 15-year starting point this Court considered appropriate for Mr Zhang where approximately 18 kilograms of methamphetamine was imported and Mr Zhang’s role although “significant” involved him performing an operational function within the hierarchy of the enterprise, rather than leading or directing it.[36]
[36]At [256].
We agree with Mr Kovacevich that the appellant’s culpability is markedly less than that of Mr Zhang, where the quantity of methamphetamine had a far greater potential to cause social harm than the quantity imported by the appellant. That factor, combined with the small-scale commercial venture undertaken by the appellant with the assistance of his wife, should be recognised and justifies the adoption of a lower starting point than the 14 years chosen by the Judge.
Another useful comparison is the case of Thompson v R, also in Zhang. Mr Thompson pleaded guilty to one representative charge of supplying 4.2 kilograms of methamphetamine, and one charge of possessing 2.6 kilograms of methamphetamine for supply. Mr Thompson was accepted as being the principal offender in an extensive methamphetamine distribution network which he had established in the Hawkes Bay. He was involved in supplying methamphetamine at both wholesale and retail levels between November 2016 and September 2017, and arranged for others to make deliveries and receive payments. He was described by the sentencing Judge as the most comprehensive methamphetamine dealer the Hawke’s Bay had ever seen. Mr Thompson did not appeal against his final sentence of 13 years’ imprisonment and while not undertaking the sentencing afresh this Court nevertheless commented on how the new sentencing guidelines would apply in his case, and observed that a starting point of 16 years’ imprisonment on the supply charge was within the available range.[37] That is not, of course, to say that the Court of Appeal would have adopted 16 years had it been setting the sentence.
[37]Zhang v R, above n 6, at [272].
We also consider the appellant’s culpability to be of a significantly lower level than that of Mr Thompson, who was responsible for controlling a sophisticated and extensive distribution operation involving approximately three times as much methamphetamine than the appellant was responsible for importing.
We accordingly consider that a starting point of 13 years’ imprisonment would be appropriate in the appellant’s case, and consequently that the Judge erred by adopting the 14-year starting point.
The Judge reduced the starting point by one year to take account of the extended time spent by the appellant on restrictive EM bail conditions and the delay in his matter coming to trial. The appellant does not challenge that aspect of his sentence and the Crown supports the allowing of those discounts as having been open to the Judge to make. The quantum of a discount for time spent on restrictive EM bail conditions is a matter for a sentencing judge’s discretion,[38] and here the six months allowed by the Judge was within range and accordingly will not be disturbed on appeal. There is however no principled basis for the allowing of a discount for the delay encountered in the matter coming to trial. Indeed, by allowing a separate discount for that factor as well as the time spent on restrictive EM bail conditions amounts to a double counting of the delay involved in waiting for trial. Accordingly we do not allow a separate discount for the delay involved.
[38]Chea v R [2016] NZCA 207 at [110].
Applying the six-month discount to the 13-year starting point yields an adjusted starting point of 12 years and six months’ imprisonment.
Having found that the Judge erred by adopting a 14-year starting point that was too high and which resulted in the imposition of a 13-year sentence that was manifestly excessive, we shall now consider the availability of any further discounts.
Personal factors
Good character
We have noted that the Judge did not address or allow any discount in recognition of the appellant’s previous good character. When an offender who appears for sentence can demonstrate previous good character they are generally entitled to some credit and a sentence reduction on that account. The fact that an offender has not previously offended in any relevant manner will often inform their prospects of rehabilitation, which is appropriately encouraged by a sentencing discount.[39]
[39]Sentencing Act 2002, s 9(2)(g).
The appellant is now aged 44. Although he has a drink-drive conviction, it related to offending over 12 years ago. He also has two convictions for common assault which relate to offending approximately 20 years ago. His background is set out in the Department of Corrections’ Provision of Advice to Courts report prepared for his sentencing and in the detailed cultural report prepared by Mrs Nand which was also before the Judge.
These reports confirm that the appellant was born in Fiji and attended the Mahatma Ghandi School in Suva, which only accepts “A-grade” students. After completing his secondary education, the appellant worked in Fiji before coming to New Zealand in 1998 with the intention of obtaining a commercial pilot’s licence from the Ardmore Flying School. Although he obtained his pilot’s licence, he was unable to obtain his commercial pilot’s licence when his parents were unable to continue to fund his training. He then commenced a compliance apprenticeship with a panel and vehicle repair business and, after working in the motor industry for several years including as a senior motor mechanic, he obtained a Warrant of Fitness inspector qualification from Unitec, and worked in that field for several years before purchasing a motor vehicle service business from his uncle in 2015.
The appellant was operating the business when he was arrested and charged with the methamphetamine-related charges in September 2016, he having used the business as a cover for his offending by declaring that some of the parcels containing the methamphetamine contained automotive parts to be used in connection with his business.
The appellant has two daughters from his first marriage, and a two-year-old son from his second marriage with his co-offender, Ms Kahn. When his first wife and mother of his two daughters returned to Samoa when their youngest child was around five months old, the appellant raised his daughters with the assistance of their maternal grandmother. He is described as a devoted father to his children.
Accordingly, although the appellant does not possess an entirely clear history with no previous convictions whatsoever, from his personal history as set out in the two reports it appears that he has shown himself to be a responsible parent and to have been conscientious and industrious in pursuing a career initially in aviation and, when that proved impossible, then in the motor industry. His background shows him to have been of generally good character prior to becoming involved in methamphetamine offending. This background is in our view sufficiently positive to indicate that he will have good prospects of rehabilitation, and that his previous generally good character warrants recognition by way of a discount from his sentence. We consider that a discount of 10 per cent from the adjusted starting point is warranted in recognition of his previous good character, and to encourage his rehabilitation.
Section 27 report
In Zhang, this Court accepted that, in the sentencing of defendants convicted of dealing in methamphetamine, just as with the sentencing of defendants convicted of other offences:
[159] … systemic poverty resulting from loss of land, language, culture, rangatiratanga, mana and dignity are matters that may be regarded in a proper case to have impaired choice and diminished moral culpability. Where these constraints are shown to contribute causatively to offending (whether associated with addiction or not), they will require consideration in sentencing.
…
[162] … social, cultural or economic deprivation that has a demonstrative nexus with the offending may be presented in mitigation regardless of the specific ethnicity of the offender. Likewise, the tools available in ss 25 and 27 are there for use by any relevant offender.
(Footnotes omitted.)
The s 27 report prepared by Mrs Nand sets out the appellant’s background and personal circumstances. There is however, nothing in her detailed report to indicate that the appellant suffered any social, cultural, or economic deprivation of any significance over the course of his life that could be identified as having any causative effect on his offending. To the contrary, the report provides an account of him being well supported by his immediate and wider family during his childhood and that he was well educated at one of the leading schools in Fiji before embarking on his aviation career, and thereafter his career in the motor industry.
“Cultural isolation”
Mr Kovacevich also submits that the Judge erred by failing to give the appellant a sentencing discount to recognise the “cultural isolation” that he will suffer in the course of serving a sentence of imprisonment in a New Zealand prison because of isolation from friends and family, language difficulties, and cultural differences.
Although the appellant is a Fijian national, he came to live permanently in New Zealand some 22 years ago and has since established himself here. His New Zealand-born children and his partner reside here and he will not be without support while serving a term of imprisonment. His situation is readily distinguishable from that of a foreign national who finds themselves imprisoned in New Zealand for a lengthy period at a considerable distance from their family and with no local support as a consequence of their brief visit to New Zealand for the purposes of drug-related offending, as described under this head in Zhang.[40] We see no basis for allowing a discount in recognition of cultural isolation in his case.
The end sentence
[40]Zhang v R, above n 6, at [163].
Adopting a starting point of 13 years’ imprisonment and adjusting it by deducting 6 months to account for the time spent by the appellant on restrictive EM bail conditions yields an adjusted starting point of 12 years and six months’ imprisonment. The Judge ought to have considered the issue of whether to allow a discount for good character, and it was an error not to do so. We have allowed a reduction of 10 per cent in recognition of the appellant’s previous generally good character and prospects of rehabilitation.
Applying the 10 per cent discount to the adjusted starting point of 12 years and six months’ imprisonment yields an end sentence of 11 years and three months’ imprisonment.
Result
The application for extension of time is granted.
The appeal is allowed. The sentence of 13 years’ imprisonment is quashed and substituted with a sentence of 11 years and three months’ imprisonment.
No minimum period of imprisonment is imposed under s 86(2) of the Sentencing Act 2002.
Solicitors:
Crown Law Office, Wellington for Respondent
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