R v Pai
[2015] NZHC 2345
•25 September 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-092-13963 [2015] NZHC 2345
THE QUEEN
v
HAO JEN PAI CHIH LIANG CHIEN
Hearing: 25 September 2015 Appearances:
L Radich for Crown
M Kan for Mr Pai
M A Edgar for Mr ChienSentence:
25 September 2015
SENTENCING REMARKS OF LANG J
R v PAI & CHIEN [2015] NZHC 2345 [25 September 2015]
[1] Mr Pai and Mr Chien, you appear for sentence today after pleading guilty to charges of importing methamphetamine and being in possession of methamphetamine. As I am sure you know, the maximum penalty under New Zealand law for those offences is life imprisonment. You pleaded guilty after receiving a sentence indication from another Judge.1 That Judge is not available today. I have agreed to sentence you on the basis of the indication given by the other Judge, but taking into account the submissions made by your lawyers today.
Background
[2] I do not propose to set out the facts giving rise to the charges. They are set out fully in the Judge’s sentence indication. They are also contained in a summary of facts that you have agreed is correct. A copy of the other Judge’s sentence indication will be attached to the written transcript of my remarks. It will therefore form part of the sentencing record.
[3] In short, however, you were part of an organised importation of a very substantial quantity of methamphetamine. Your role was to rent properties and to receive shipments of goods from overseas that were found to contain 22.6 kilograms of methamphetamine. When the shipments arrived, you obtained tools to unpack them. The shipments contained machinery. The methamphetamine was packed inside the machinery. Having unpacked the packages of methamphetamine, you left the methamphetamine at the property and went to the airport. You were arrested there on the evening of 13 December 2014 shortly before you were scheduled to leave the country.
The sentence indication
[4] The Judge who gave the sentence indication took a starting point of 18 years imprisonment. He indicated that he would give you a 20 per cent discount for your guilty pleas. This would result in three years eight months being deducted from your sentence. He left open the possibility that he might give you a greater discount for your guilty pleas if your lawyers could show that the pleas could not have been
entered earlier. The Judge also said that further discounts might be given for other
1 R v Pai & Chien [2015] NZHC 1808 (Faire J).
factors personal to you. Furthermore, he said that he intended to impose a minimum term of imprisonment of 50 per cent. This means that he would make an order requiring you to serve one-half of your sentence before being able to apply for parole. The Judge said that he might be prepared to review that issue should your lawyers be able to satisfy him that he should do so.
[5] I am now required to determine all the issues that the Judge left potentially open.
Discount for guilty pleas
[6] I begin with the discount to be given for your guilty pleas. Your positions are slightly different in this regard, but I propose to treat you the same. I recognise that you faced some difficulties initially because you did not speak English. This may have hindered your early efforts to obtain legal advice. Given the quantity of methamphetamine involved, your lawyers were entitled to look at the documents the police held before advising you to seek a sentence indication. Nevertheless, you must have known throughout that you were involved in the importation of drugs. Once it had been established that the drugs were methamphetamine, it must also have been obvious that you had little defence. I say this because I understand that you told the police that you had been approached by the person called Robert and accepted the payment of money in return for your services. You also physically unpacked the drugs, so you knew that the crates of machinery contained packages of what you must have understood were drugs.
[7] The timing of a guilty plea is just one aspect of the discount to be afforded to it. I am prepared to increase the discounts slightly, but not by any great extent to recognise the factors relied on by your lawyers. I propose the increase the discount to be given for guilty pleas by four months so that the discount will be four years rather than three years eight months. I turn now to the discount to be given for other factors personal to you.
Other mitigating factors
[8] Mr Pai, you are 22 years of age. Mr Chien, you are 26 years of age. Both of you have no previous criminal record. This is the first, and hopefully last, occasion on which you will appear before the courts. As the Crown recognises, you are entitled to some allowance for your previous unblemished record. That record was blemished by your willingness to accept money in return for assisting with the importation of class A drugs.
[9] In addition, you are entitled to a discount to reflect the fact that, as foreign nationals who speak no English, you are going to find serving a sentence of imprisonment more difficult than would otherwise be the case. It means that you will be isolated to an extent within the prison. There are likely to be few prisoners with whom you will be able to converse or talk. You will also face significant difficulty understanding what others around you, including prison staff, are saying. This is a factor that the courts have recognised may be taken into account when fixing a sentence of imprisonment.
[10] Finally, you have both written letters to the Court in which you express your regret and remorse for what you have done. Comments you have made to the people who have prepared the pre-sentence reports contain similar expressions of remorse.
[11] In cases of very serious drug offending personal mitigating factors count for less than in other areas of criminal offending. I do not propose to break down the individual discounts for those factors. I prefer to fix a global figure reflecting all three. I propose to reduce your sentence by one year four months to reflect these factors. This produces an end sentence of 12 years eight months imprisonment.
Minimum term of imprisonment
[12] The final issue I am required to determine is whether I should revisit Faire J’s
decision that it would be appropriate to impose a minimum term of imprisonment of
50 per cent.
[13] Faire J set out in his sentence indication remarks the reasons why courts impose minimum terms of imprisonment. I would add to those the remarks that I made to your lawyer, Mr Pai, during the hearing today. He made a submission that the Court should reconsider the appropriateness of imposing minimum terms of imprisonment in cases like this. He pointed out that you come from another country, and that sentences imposed by this Court are not known outside New Zealand. In addition, a large numbers of foreign nationals continue to appear before the courts on serious drug offences. For that reason he questioned the effectiveness of minimum terms of imprisonment as a deterrent to other offenders in the future.
[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.
Sentence
[16] On each of the charges to which you have pleaded guilty you are both sentenced to 12 years eight months imprisonment. You are ordered to serve a minimum term of imprisonment of six years four months on each charge. Both sentences are to be served concurrently.
[17] Stand down.
Lang J
Solicitors: Meredith Connell, Auckland
Michael Kahn Law Ltd, Auckland
To: MA Edgar, Auckland
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT
2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGES DISMISSED.
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY CRI-2014-092-13963 [2015] NZHC 1808
THE QUEEN
v
HAO JEN PAI CHIH LIANG CHIEN
Hearing: 31 July 2015
Counsel: RBA McCoubrey and KF Gould for Crown
M Kan for first-named defendant
MA Edgar for second-named defendant
Judgment: 31 July 2015
SENTENCE INDICATION OF FAIRE J
Solicitors: Meredith Connell, Auckland
Michael Kahn Law Ltd, Auckland
To: MA Edgar, Auckland
Contents
Introduction ............................................................................................................[1] Facts .......................................................................................................................[4] Purposes and principles of sentencing (ss 7 and 8 of the Sentencing Act 2002) .[10] Sentencing approach ............................................................................................ [11] Submissions for the Crown ..................................................................................[12] Submissions for Mr Pai ........................................................................................[13] Submissions for Mr Chien ...................................................................................[15]
Starting point ..............................................................................................................
Aggravating factors relevant to the offence [16]
Relevant cases ......................................................................................................[18]
Analysis [27] Aggravating factors relevant to the defendants....................................................[31] Mitigating factors .................................................................................................[32] Guilty plea ............................................................................................................[33] Minimum period of imprisonment .......................................................................[34] Sentence: result ....................................................................................................[42]
Introduction
[1] Mr Pai and Mr Chien, you are due to stand trial on 2 May 2016. You each face one charge of importing the Class A controlled drug methamphetamine and one charge of possession of methamphetamine for supply, pursuant to s 6(1)(a) and s 6(1)(f) respectively. Each charge carries a maximum penalty of life imprisonment.
[2] I say at the outset that there are no features of this case, in my view that distinguish one of you from the other. Your offending was in reality identical, and I am not satisfied that there is any evidence before me that your partnership in the offending was less than equal. I shall approach both of your sentences in the same manner and you shall receive very similar sentence indications.
[3] You have both requested a sentence indication. That brings into play the provisions of ss 60 to 64 and 115 and 116 of the Criminal Procedure Act 2011. If you accept the sentence indication, I will be bound to impose the sentence as indicated unless new material comes to light which materially affects the basis upon which the sentence indication has been given. In that event, you will have an opportunity to vacate your plea.
Facts
[4] On 5 November 2014 both of you and three other associates flew to New Zealand from Taiwan on a visa waiver system. All of you were supposed to return to Taiwan on 19 November 2014.
[5] Sometime between 5 and 13 November 2014 you and the others went to the Westfield Mall in Manukau. There you were approached by a Taiwanese man called Robert. He offered to pay $20,000 if any or all members of the group rented a house and received a package on his behalf. Both of you agreed to rent a house for two months and to split the money equally. Your three associates did not agree. Mr Pai, you were then given a cellphone by Robert and instructed to use it to communicate with him. Mr Pai, you then allowed Robert to photocopy your passport.
[6] Both of you were involved in the rental of the residential property at
10 Druces Rd, Wiri, Auckland. Counsel has endeavoured to make some distinction.
I note the power supply was registered in Mr Pai’s name, and was activated on
13 November 2014. Your three associates changed their flights and left earlier than planned, on 15 November. Both of you changed your flights multiple times awaiting for the consignment to arrive.
[7] On 5 December 2014 a consignment from Taiwan was examined by Customs. There were two crates that between them contained 15 wire drawing machines that were bolted to metal blocks. Concealed inside the metal blocks were 22.6 kilograms of methamphetamine. The estimated street value of this quantity is between
$6,364,160 and $11,932,800.
[8] The logistics company contacted Mr Pai to confirm the delivery address. Someone, not Mr Pai, replied confirming the address at Druces Rd. The shipment was delivered to the address on 11 December 2014. After the delivery you both deconstructed the pallets and carried the machines inside.
[9] The next day, 12 December, you attempted to fly back to Taiwan. You were arrested in the airport. In explanation to the police you both have admitted being paid $10,000 each for the rental of the house in preparation for receiving the consignment from Taiwan.
Purposes and principles of sentencing (ss 7 and 8 of the Sentencing Act 2002)
[10] The relevant purposes of sentencing that will apply are the need to hold you accountable for the harm done by your offending, to promote in you responsibility for that harm, to denounce and to deter drug-related offending in the future. The relevant principles that will apply are the gravity of the offending, including the level of your culpability and the seriousness of the type of offence. The Court will also have to impose a penalty near to the maximum if the offending is near to the most serious offending and the sentence must maintain consistency with appropriate sentencing levels.
Sentencing approach
[11] I will follow the sentencing approach set out in R v Clifford.2 I will first identify a starting point. I will then adjust the starting point to reflect factors relating to you personally. Lastly, I will apply a discount for the guilty plea.
Submissions for the Crown
[12] The Crown submits that an appropriate starting point lies between 17 to
19 years’ imprisonment. The Crown accepts that you were not masterminds or prime movers, but submits that you were crucial players in the importation and that you displayed a high level of premeditation. The Crown does not oppose a discount of
20 to 25 per cent for a guilty plea, should that be entered as a result of an acceptance of the sentence indication. The Crown seeks a minimum period of imprisonment of
50 per cent.
Submissions for Mr Pai
[13] Mr Pai, your counsel submits that an appropriate range is between 15 and
17 years’ imprisonment. Your counsel accepts that your role was one of a “catcher”, a role of crucial importance but one that does not involve being an instigator, mastermind or controller. Your counsel submits that in that category of offending, the quantity of the drug is less important as the catcher often does not know the quantity or the kind of drug being imported, and is paid a flat fee rather than a percentage of the total profits.
[14] Your counsel refers to your youth as being a significant mitigating factor. As mentioned, I do not intend to take account of personal circumstances in this indication. That is a matter that will be reserved if you accept indication for further consideration when sentence is passed. Your counsel seeks a discount of 25 per cent for the guilty plea.
Submissions for Mr Chien
[15] Mr Chien, your counsel also submits a starting point rage of 15 to 17 years’ imprisonment. He seeks to differentiate your position from Mr Pai’s. However, in my view, those matters are of insufficient significance to separate the way the court views your position from that of Mr Pai.
Starting point
Aggravating factors relevant to the offence
[16] In my view, the same factors apply to both of you. I consider the aggravating factors to be the quantity imported, the extent of commerciality, the premeditation and degree of involvement and the extent of harm.
[17] In respect of the degree of your involvement, I accept that you were not the masterminds of the operation, and that it is possible you may not have known what you were importing or the precise quantity. 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.
Relevant cases
[18] The tariff case for Class A drug offending is R v Fatu.3 In that case the Court of Appeal set out four guideline bands for importation of methamphetamine. The bands are categorised by the quantity of the drug imported. The present case clearly falls within band four, which is for quantities of more than 500 grams and has a starting point range of 12 years’ to life imprisonment.
[19] The Court of Appeal stated that the bands apply to all persons involved in importation of methamphetamine, including those whose roles are “mules”.4 The Court stated that the more significant the role of the offender in the importation, the closer the appropriate sentence will be to the top end of the relevant sentencing band.5
[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.
[21] Counsel for Mr Pai and for the Crown cite R v Wickremasinghe, in which Priestley J in distinguished between the role of a mastermind and an otherwise crucial player.6 Crucial players are those that are of prime importance but are not a part of the planning or mastering the activity, but whose involvement is nonetheless of critical importance.7 The cruciality of this lesser role lies in the fact that without
people willing to carry it out, the enterprise could not be brought to fruition.8
[22] Priestley J stated that the quantity of the imported drug matters less in sentencing crucial players.9 The reason is that crucial players often do not know the quantity and are often paid a fee rather than a cut of the profits.10
[23] In R v Wong the Court of Appeal recognised that crucial players can have various roles.11 They can be “mules”, who perform the task of a courier, or they can be “catchers”, whose role is to collect or receive a package. The Court stated that the role of a mule has the lowest culpability.12
[24] Irrespective of the role undertaken by the offender, wilful blindness will not warrant leniency or sympathy from the Court. In R v Soles the defendant was a
73 year old American national who fell victim to a Nigerian scam, which required
him to pick up a suitcase and transport it from South Africa via New Zealand to
4 At [36].
5 At [36].
6 R v Wickremasinghe HC Auckland T013408, 28 March 2003.
7 At [23], citing R v Lam HC Auckland T982692, 6 July 1999.
8 At [23].
9 At [24].
10 At [24].
11 R v Wong [2009] NZCA 332.
12 At [13].
Fiji.13 The suitcase contained six kilograms of methamphetamine. The defendant was initially suspicious of the suitcase’s heavy weight and what it may contain, but decided to proceed. On sentencing, Courtney J stated that deterrence is an important objective, and to treat a wilfully blind mule much more leniently than a mule who possesses actual knowledge would risk conveying a message that drug importers should avoid making inquiries for fear of discovering the truth.14
[25] I consider the following cases relevant to setting the starting point:
(a) R v Nguyen:15 the defendant was the recipient of a package from Hong Kong. Inside were 1.7 kilograms of methamphetamine. Upon receiving the package, he delivered it to another address. The Court considered that the defendant was a catcher rather than a mule. The evidence to support this was that the defendant arranged a motel address, he picked up the parcel, took it to his own address and opened it. The distinguishing factor between a mule and a catcher, the Court found, was that a catcher has some organisational role. The starting point was 16 years’ imprisonment.
(b)R v Wong:16 the defendant was the recipient of a package containing two kilograms of methamphetamine. The Court categorised the defendant’s role as being more serious than a catcher and being closer to a manager. The starting point was 15 years’ imprisonment.
(c) R v Shaida:17 There were two defendants. One was found with six kilograms of methamphetamine, which he received in a parcel and was instructed to deliver to Japan. It was found that the first defendant was sufficiently close to the primary offender and at one stage dealt directly with the supplier. He was recruited a year prior to his arrest.
An 18 year starting point was upheld by Court of Appeal. The second
13 R v Soles [2014] NZHC 2665.
14 At [8].
15 R v Nguyen [2009] NZCA 239.
16 R v Wong, above n 10.
17 R v Shaida HC Auckland CRI-2004-004-6330, 21 September 2004.
defendant was found with almost three kilograms. A starting point of
15 years’ imprisonment was adopted on appeal.
(d) R v Boyarski:18 Two defendants entered New Zealand carrying
4.7 kilograms of methamphetamine concealed in their luggage. It was found that they were couriers without particular knowledge of the drug or the quantity. The Court took a starting point between 14 and
16 years’ imprisonment (it did not specify further).
(e) Chen v R:19 the police located 1.092 kilograms of methamphetamine in the defendant’s home and, at a later date, 0.998 kilograms of methamphetamine was the subject of a controlled delivery, which was picked up by the defendant’s associates, who took the drugs to the defendant’s home. A further search of the defendant’s home found this methamphetamine and a further 900 grams. A total quantity of
2,990 grams was involved. The starting point for the totality of the offending of 18 years’ imprisonment was upheld on appeal, the Court noting that this was generous having regard to the quantities involved. The Court also found that the defendant’s role was more serious than a catcher’s.
(f) Solicitor-General v Huang:20 five co-offenders arrived in New Zealand from Taiwan, carrying a collective total of 8.1 kilograms of methamphetamine. The defendant alone was carrying 1.3 kilograms. The starting point for all offenders was 15 years’ imprisonment. On appeal, the length of sentence was not disputed, but a MPI of four years was imposed.
(g)R v Soles: the defendant arrived with six kilograms of methamphetamine concealed in his suitcase, which was given to him by Nigerian scammers. The defendant, a 73 year old man, was found
to have been wilfully blind. The Judge accepted that the defendant fell
18 R v Boyarski HC Auckland CRI-2006-092-12125, 29 May 2007.
19 Chen v R [2010] NZCA 552.
20 Solicitor-General v Huang [2011] NZCA 436.
victim to a scam out of his own naivety, and took a starting point of
10 years’ imprisonment.
[26] I accept the Crown’s submission that in cases involving higher quantities of methamphetamine, the starting point will increase accordingly, but only on a limited scale, as is evident even from the limited sample of cases above.
Analysis
[27] I consider that you acted as catchers. I accept the submissions made on Mr Pai’s behalf, and I believe it applies equally to both of you, that you displayed a lower level of premeditation than the first defendant in R v Sheida. This is due to the fact that you were recruited only two or three weeks prior to the delivery of the package and arguably you were not privy to the finer operational details.
[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.
[29] I do not consider that on the facts of this case there needs to be a separate uplift for the charge of possession for supply.
[30] I take a starting point of 18 years’ imprisonment for each charge and this
applies to each of you.
Aggravating factors relevant to the defendants
[31] I am not aware of any aggravating or mitigating factors relevant to either of you. I am told that this is a first offence for both of you but that is a matter for reasons I will shortly give, that will be considered at a later time if you are to be sentenced.
Mitigating factors
[32] As this is a sentence indication, I am only prepared to indicate the level of discount to be given for guilty pleas. Other mitigating factors such as previous good character, personal circumstances to do with being foreign nationals imprisoned in New Zealand, youth and any other matters that may be relevant should properly fall for consideration when you are ultimately sentenced.
Guilty plea
[33] The Crown agrees that a discount of 20 to 25 per cent is appropriate in the event that you accept this sentence indication. It has now been eight months since your arrest and any discount for the guilty plea should take this fact into account. I consider that a 20 per cent discount will be appropriate, unless new information is presented that indicates that you could not have pleaded earlier, in which case a full
25 per cent may apply.
Minimum period of imprisonment
[34] The Crown has submitted that it seeks a minimum period of imprisonment
(MPI) of 50 per cent. I have listened very carefully to your counsel’s submissions and your counsel’s reference to Q v Reynecke
[35] If an offender receives a determinative sentence of imprisonment of more than two years, the court may order that the offender serve a minimum period of imprisonment that is longer than one-third of the length of the sentence.21
[36] The court may impose a minimum period of imprisonment if it is satisfied that the one-third default minimum is insufficient to hold the offender accountable for the harm done, denounce the conduct, deter the offender or others, or to protect the community.22 A minimum period of imprisonment must not exceed two-thirds of
the full term of the sentence.23
21 Parole Act 2002, s 84(1) (the default period).
22 Sentencing Act 2002, s 86(2).
23 Section 86(4)(a).
[37] The purpose of the imposition of minimum period of imprisonment has been stated as follows:24
[Section] 86 provides the mechanism to constrain that outcome where the offending is so serious that release after one-third of the sentence would plainly constitute an insufficient response in the eyes of the community, even though there may be no on-going safety risk. It enables the courts to give a degree of reality to the sentence and the outcome.
[38] The central consideration is the offender’s level of culpability, which is increased by unusual callousness, extreme violence, vulnerable or multiple victims and serious actual or intended consequences.25 The sentencing considerations in ss 7,
8, and 9, including the circumstances of the offender, are relevant in fixing a minimum period of imprisonment.26
[39] Counsel for the Crown cites R v Anslow in support of an imposition of a
50 per cent minimum period of imprisonment.27 The defendant was charged with supplying methamphetamine and possession for supply. The amount involved was
10 grams. A starting point of nine years was upheld by the Court. The Court of Appeal was asked to consider imposing a minimum period of imprisonment. The Court observed, on the basis of its own research, that a minimum period of imprisonment is seldom ordered where the term of imprisonment is less than nine years, but is commonly imposed where the term is greater than nine years.28
[40] Of the cases cited, only R v Soles did not have a minimum period of imprisonment, and this was due to the unique facts of that case. In all others however, a minimum period of imprisonment of 50 per cent was imposed.
[41] I do intend to impose an MPI of 50 per cent.
24 R v Brown [2002] 3 NZLR 670 (CA) at [28].
25 At [32].
26 At [27].
27 R v Anslow CA182/05, 18 November 2005.
28 At [27].
Sentence: result
[42] Mr Pai, if you accept this sentence indication, you will be sentenced to
14 years and four months’ imprisonment on each charge, to be served concurrently. The end sentence could be lower if other mitigating factors are relevant. A minimum period of imprisonment may be applied.
[43] Mr Chien, if you accept this sentence indication, you will be sentenced to
14 years and four months’ imprisonment on each charge to be served concurrently. The end sentence could be lower if other mitigating factors are relevant. A minimum period of imprisonment may be applied.
[44] In terms of s 64 of the Criminal Procedure Act 2011, this sentence indication remains open for acceptance until 5 pm on 7 August 2015.
JA Faire J