R v Chan

[2009] NZCA 528

IN THE COURT OF APPEAL OF NEW ZEALAND

CA321/2009
[2009] NZCA 528

THE QUEEN

v

CHIT HEI CHAN

Hearing:10 November 2009

Court:Robertson, Rodney Hansen and Courtney JJ

Counsel:D G Young for Appellant

B D Tantrum for Crown

Judgment:11 November 2009 at 3.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

[1]        This is an appeal against an effective term of eight years’ imprisonment imposed by Priestley J on 5 May 2009 after a plea of guilty had been entered to one count of importing a class A drug, methamphetamine: HC AK CRI 2008-092-11192.

[2]        It is argued that the sentence was manifestly excessive because the discounts allowed from the starting point were insufficient and there was a lack of parity between the sentence imposed on the appellant and a co-accused.

[3]        Priestley J in sentencing said:

[2]         You and an associate, a friend of yours, Ms Lau, were co-offenders.  Both of you resided in Hong Kong.  Although there was some suggestion by Ms Lau that you and she were living in a de facto relationship you have disputed that and, for the purposes of sentencing, I accept your explanation.

[3]         On 28 January 2008 you and your co-offender arrived at Auckland International Airport on a flight from Hong Kong.  You were searched in the customs area.  A personal search of your body revealed that there were packages of methamphetamine hidden in the soles of each of your shoes and you also had packets of methamphetamine strapped around your body.  The total number of packages involved, so far as you were concerned, was five.  The total amount of methamphetamine strapped to your body or hidden in your shoes was 537.4 gms.

[4]         Your co-offender, for what it was worth, also had five packages on her.  The weight of the methamphetamine she was carrying was slightly higher, 572.6 gms.

[5]         The street value of the total importation brought into the country by you and your co-offender was approximately $1.1 million. If I were to look at the methamphetamine which you alone were bringing into New Zealand it would be somewhat over half a million dollars.

[4]        There is no challenge made to the starting point of 12 years which was adopted.  It was the lower end of the band 4 of R v Fatu [2006] 2 NZLR 72 (CA). A 12 year starting point was in fact the optimistic submission of Mr Chan’s own counsel before the High Court.

[5]        The Judge mercifully noted that this starting point included the aggravating feature of premeditation.

[6]        The mitigating factors which were referred to were a credit for the plea of guilty, a degree of leniency because Mr Chan had the responsibilities of a parent towards a young child, the fact Mr Chan was friendless in New Zealand and that imprisonment in an alien culture surrounded by strange language would make imprisonment a more severe penalty for him than for many.  The Judge also allowed a small credit for co-operation with the police shortly before sentencing.

[7]        Taking all these factors together, the Judge allowed a reduction of one-third which he described as “appropriate and generous”.

[8]        The particular personal circumstances of Mr Chan, namely that he was a non-national, could at most have justified a reduction of three or four months.  He willingly made himself a drug mule to a foreign country and the criminal sanction to which he was subsequently subject was an inevitable consequence of his being detected.

[9]        His co-operation with the police, two weeks prior to sentencing, was of minimal value.  Originally he gave police no helpful information at all.  This co-operation could only attract a discount of three or four months.

[10]       The sentence was accordingly properly in the range of 11 years and 4 months until an allowance was made for a plea of guilty.

[11]       In accordance with the sentencing regime which now applies: (see R v Hessell [2009] NZCA 450), the reduction for Mr Chan’s late guilty plea would have been ten per cent. We immediately acknowledge that the Hessell guidelines do not apply to his case, but this was a situation when Mr Chan was caught red handed importing into New Zealand methamphetamine with a value in excess of $1 million.  There was never a defence available.  Had he been truly remorseful and co-operative, he would have pleaded guilty within weeks of his apprehension, not some nine months later.  Had there been an effective sentence of ten years’ imprisonment, Mr Chan could not have had a basis for complaint.

[12]       The only other issue on appeal is the fact that the effective sentence imposed  on his co-accused (R v Lau – HC AK CRI 2008-092-1296 26 September 2008) was seven years and six months’ imprisonment.  It is instructive to see how that sentence was arrived at.

[13]       The starting point was also 12 years.  The mitigating factors listed by Wylie J were an early guilty plea, Ms Lau’s age, the fact that she had no previous convictions and was remorseful.  The Judge noted that a term of imprisonment would be difficult for her in a foreign country a distance from her home.  She had offered such information as she had to the police although it had not been of value.

[14]       Mr Chan was 34 years of age and his co-offender 22 years of age.  She was involved in this offending by reason of her drug addiction whereas Mr Chan was in it for money alone.  The co-offender pleaded guilty at a much earlier point than Mr Chan. 

[15]       Mr Young placed particular emphasis on the decision of the Supreme Court in R v Jarden [2008] NZSC 69 and the comments of Wilson J:

[12]       There is, however, more force to Mr Glover’s final submission that the personal circumstances of Mr Jarden were so overwhelming that they should have been given some recognition on sentencing.  As the Courts have repeatedly said, and as we emphasis again, in sentencing those convicted of dealing commercially in controlled drugs the personal circumstances of the offender must be subordinated to the importance of deterrence.  But this does not mean that person circumstances can never be relevant.

…

[14]       The personal circumstances of an offender may be relevant either because they contributed in some way to the offending, or on purely compassionate grounds.  In oral argument, Mr Glover accepted that in the present case there was no evidence of a causal link between Mr Jarden’s anxiety and depression and the offending of which he was convicted.  His personal circumstances, in the form of the loss of his partner and their unborn child shortly before his trial was to commence, were however so extreme that they could and should have been taken into account in sentencing.  The crucial importance of deterrence requires however that the reduction in sentence be a modest one.

[16]       Mr Young noted that Mr Chan had become involved in this offending because, as outlined in the probation report, shortly after his failed marriage he was soon in debt for general financial problems and was encouraged to approach “loan sharks” for money.  Mr Chan claimed he was initially loaned NZ$2,500 and said this had risen to NZ$25,000 because of 30 per cent interest payment rates.  It was because he was in a state of desperation in an attempt to eradicate his financial problems that he had become involved in this offending as there had been threats to kill his family if he failed to pay his debts.

[17]       We are not persuaded that circumstances of that sort are appropriate to take into account when, in a planned way, a person becomes involved in international drug peddling as was the case here.  Nor is the fact that he had sole care of a young daughter.

[18]       There is no basis upon which the test of this Court in R v Lawson [1982] 2 NZLR 219 is engaged. A reasonably minded and independent observer, aware of the circumstances, would not think something had gone wrong with Mr Chan’s sentence. He and his co-offenders were treated in virtually identical ways with the slight differentiation being immediately observable and totally justified.

[19]       This appeal has no merit and is dismissed.

Solicitors:

Crown Law Office, Wellington