R v Wong

[2009] NZCA 332

IN THE COURT OF APPEAL OF NEW ZEALAND

CA218/2009
[2009] NZCA 332

THE QUEEN

v

SIK CHEUNG WONG

Hearing:27 July 2009

Court:Baragwanath, Venning and Winkelmann JJ

Counsel:D G Young for Appellant

A M Powell for Crown

Judgment:29 July 2009 at 4pm

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

[1]       This is an appeal against a sentence of 11 years three months’ imprisonment with a minimum non-parole period of 50 per cent for importing methamphetamine.  The sentence was imposed by Miller J.  The Judge also sentenced the appellant to a concurrent term of imprisonment for nine years nine months for having possession of methamphetamine for the purposes of supply.  The sentences followed the appellant’s guilty pleas to the charges.

Background

[2]       The appellant came to New Zealand on 30 June 2007 to complete the planned importation of a large quantity of methamphetamine from Hong Kong.  The police monitored the activities and communications of those involved.  The investigation disclosed that the importation operation was carefully planned and executed.  The appellant rented an apartment in Auckland and faxed its address to a colleague in Hong Kong.  He then continued to communicate with associates overseas about the importation.  Two cardboard boxes were sent to the address from Canada.  The customs declaration proclaimed that the boxes contained figurines.  In fact they contained approximately two kilograms of methamphetamine skilfully packaged to conceal the drug.

[3]       Customs and police officers intercepted the drugs and substituted the methamphetamine with an imitation substance.  The packages were resealed and delivered to the appellant by customs officers posing as courier company delivery persons on 19 July 2007.  Later that day the police entered the appellant’s apartment.  The appellant admitted the drugs were in the bedroom. 

Sentencing

[4]       The appellant pleaded guilty to both charges.  Despite the guilty pleas he sought to minimise his knowledge of the drugs in his possession when speaking to the writer of the pre-sentence report.  But through counsel he confirmed he accepted the summary of facts for sentencing purposes.  On the basis of the summary of facts, Miller J categorised the appellant’s role as a responsible one, equivalent to that of a manager or organiser.  The Judge noted the importation fell into band 4 of R v Fatu [2006] 2 NZLR 72 at [36] (CA). That attracted a starting point of between 12 years and life imprisonment. Mr Haigh QC argued for a starting point of 13 and a half years. Miller J considered a number of other authorities, including R v Jarvid HC AK CRI 2005-004-014044 4 September 2007 and R v Nguyen HC AK CRI 2008-092-002791 14 November 2008, which demonstrated that starting points of between 11 and 13 years had been adopted for couriers.  The Judge then took a starting point of 15 years, given the quantity of drugs involved and his assessment of the appellant’s role in the importation. 

[5]       Miller J accepted that there were no personal aggravating factors.  He noted the appellant’s personal circumstances, including the need for treatment for diabetes and the effect of his arrest on his family, particular his wife and elderly mother.  The Judge was prepared to accept that the appellant had no previous convictions in Hong Kong and noted that he was assessed as a low risk of reoffending.  He allowed a discount of 25 per cent for the guilty plea but, while noting the appellant’s personal circumstances, was not prepared to reduce the sentence further.  He therefore imposed the end sentence of 11 years three months.

[6]       The Judge considered that the need for deterrence and denunciation of this type of offending required a minimum non-parole period greater than the statutory one third.  After taking account of counsel’s plea for leniency based on the appellant’s personal circumstances, the Judge imposed a minimum non-parole period of 50 per cent. 

Appellant’s submissions

[7]       The appellant submits the sentence was manifestly excessive because:

(a)The starting point was set too high;

(b)Insufficient credit was given for mitigating factors;

(c)There was no need for a minimum non-parole period.

Starting point

[8]       While acknowledging that the offending fell within band 4 of Fatu, Mr Young argued that a starting point of 13 years would have been “appropriate”.  He submitted the starting point of 15 years was not available to the Judge having regard to a number of other sentences imposed in the High Court including in the decisions of R v Wong HC AK CRI 2005-4-015296 8 September 2006; R v Lau HC AK CRI 2005-092-002600 16 December 2005; and R v Martin CA161/06 31 August 2007.

[9]       Mr Young also submitted that the purity in the present case was 60 per cent, which was less than in some of the other cases referred to, where the purity of the drug had been 80 per cent or close to it.  He then noted that the quantities of drugs involved in some of the other cases he referred to were greater than in the present case.

[10]     On a sentence appeal to this Court it is not particularly helpful to isolate individual sentencing decisions of the High Court and to seek to argue from those selected decisions that the sentence imposed was inappropriate on a comparative basis.  In Fatu this Court identified the approach that should be taken towards sentencing in cases involving serious drug offending of this nature. In particular, this Court identified that the appropriate sentence depends not just on quantity and purity of the drugs involved, but also on the role played by the offender (at [31]). In cases involving importation and supply, considerations of commerciality are significant. Each case must turn on its own facts informed by the principles established by this Court.

[11]     For the importation of methamphetamine this Court identified that for importing very large commercial quantities (500 grams or more) the appropriate band was 12 years to life.  Mr Young’s submission that the band to apply was between 10 years and life was contrary to the decision of Fatu.

[12]     Nor is there any particular significance in the level of purity of the drug in the present case as Mr Young sought to argue.  In Fatu this Court made it clear that the bands were to be applied in cases where the purity was in the order of or exceeded 60 per cent (at [30]). The drugs in the present case were not analysed but it was accepted for sentencing purposes that the methamphetamine was of 60 per cent purity or more.

[13]     The appellant’s role is particularly relevant.  At the lowest end of culpability will be the courier or “mule”.  In cases where the offender’s involvement has been to collect or receive a package the Court has referred to the role as that of “catcher”, and regarded it as more serious than a courier: R v Nguyen at [11].In the present case the appellant’s involvement as recorded in the summary of facts could be said to be more than that of “catcher”.  The appellant was observed and his communications monitored over a period of weeks.  He was involved in arranging the apartment, had ongoing communications with the overseas connections and arranged for the drugs to be forwarded to his address.  He was then caught in possession of them.  While the appellant was not a “Mr Big”, the Judge was right to categorise him as equivalent to a manager or organiser.

[14]     Given the appellant’s role in the importation of a large commercial quantity of methamphetamine with a purity of at least 60 per cent, the starting point of 15 years was well within the range open to the Judge for the importation charge.  Bearing in mind the starting point had to reflect the totality of offending, which included the charge of possession for supply, it is unassailable.

Mitigating factors

[15]     The Judge’s calculation of a 25 per cent discount for the guilty plea allowed a reduction from the starting point of three years nine months.  The assessment of a 25 per cent allowance for the guilty plea at the stage it was entered cannot be challenged.  The pleas were not entered for some months after committal to this Court. 

[16]     The Judge was aware of all other factors raised by way of mitigation in favour of the appellant but properly considered that those mitigating factors, which were personal to the offender, had little role to play in offending of this nature, particularly when balanced against the appellant’s continued attempts to minimise his involvement in the offending. 

[17]     In R v Jarden [2008] 3 NZLR 612, the Supreme Court accepted that if personal circumstances contributed to the offending or there were particular reasons for compassion, the Court could, in appropriate cases, take those into account. But it nevertheless restated the proposition that generally, in sentencing those convicted of dealing commercially in controlled drugs, the personal circumstances of the offender must be subordinated to the importance of deterrence (at [12]).

[18]     It cannot be said that the appellant’s personal circumstances contributed to the offending in any way.  To the extent compassion may be relevant, the Judge took it into account in reducing the non-parole period from two thirds to 50 per cent, where it had a major practical effect.

[19]     We note that on Mr Young’s submissions the appropriate discount, taking account of mitigating factors, would have led to a reduction in sentence of three years six months or a discount of just under 28 per cent. 

[20]     The deduction of 25 per cent by Miller J led to a reduction of three years nine months.  The difference between the 28 per cent argued for by Mr Young and the 25 per cent given by Miller J is not material.

Minimum non-parole period

[21]     In the decisions of R v Anslow CA182/05 18 November 2005 and R v Aram [2007] NZCA 328, this Court confirmed that in cases of very serious drug offending, while its discretion will never be fettered, it will be almost invariable that the criteria for an order under s 86, particularly the need for deterrence and denunciation, will be made out. This case is no different. The criteria are made out for an order under s 86.

[22]     As noted, the Judge took account of the appellant’s personal circumstances, and exercised leniency in fixing the minimum period of imprisonment at 50 per cent rather than two thirds.

Summary/result

[23]     The starting point was within range.  The Judge was aware of, and where appropriate took into account, all relevant considerations in assessing the allowance for mitigating factors and in imposing the non-parole period.

[24]     The appeal against sentence is dismissed. 

Solicitors:
John Sellers, Auckland for Appellant
Crown Law Office, Wellington