Tang v R
[2021] NZCA 266
•23 June 2021 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA657/2020 [2021] NZCA 266 |
| BETWEEN | XIAO YAN TANG |
| AND | THE QUEEN |
| Hearing: | 12 May 2021 |
Court: | Clifford, Simon France and Edwards JJ |
Counsel: | H G de Groot and T W R Lynskey for Appellant |
Judgment: | 23 June 2021 at 11 am |
JUDGMENT OF THE COURT
AThe application for leave to admit the report of Ms Howarth dated 15 March 2021 is granted.
BThe appeal against sentence is allowed. It is substituted for a sentence of 12 years’ imprisonment.
C The District Court’s order imposing the MPI is quashed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Edwards J)
Mr Tang pleaded guilty to 41 charges[1] of supplying a total of 1.6 kg of methamphetamine;[2] four charges of possessing a total of 161 g of methamphetamine for supply;[3] and one charge each of supplying 500 g of ephedrine,[4] possessing methamphetamine[5] and possessing utensils.[6] The latter two charges were committed while on bail.
[1]There are differences as to the number of charges in the summary of facts, Crown Charge Notice and sentencing notes. We have relied on the summary of facts to which Mr Tang pleaded guilty. Counsel for Mr Tang accepts that any differences are immaterial.
[2]Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a).
[3]Section 6(1)(f) and (2)(a).
[4]Section 6(1)(c) and (2)(b).
[5]Section 7(1)(a) and (2).
[6]Section 13(1)(a) and (3).
Judge Dawson, at the District Court at Auckland, imposed a sentence of 13 years and seven months’ imprisonment with a 50 per cent minimum period of imprisonment on 18 May 2017 for all but the offences committed while on bail. Concurrent sentences of one month’s imprisonment were imposed for those two offences.[7]
[7]R v Tang [2017] NZDC 10379.
Mr Tang was granted leave to appeal his sentence out of time. He appeals his sentence as-of right on the following grounds:[8]
(a)the starting point of 16 years’ imprisonment was too high;
(b)a two year uplift for the ephedrine charge was excessive;
(c)a higher discount for personal factors including addiction, good character, youth, remorse and the burden of isolation was warranted; and
(d)the MPI was unnecessary.
The offending
[8]Criminal Procedure Act 2011, s 244.
In early 2015, police began an investigation into the drug dealing activities of an Auckland based group, including Mr Tang. The investigation included the use of interception, visual surveillance, and tracking devices in relation to Mr Tang and another individual.
The supply of methamphetamine occurred on 41 occasions over a three-month period from 12 June to 18 September 2015. The total supplied was 1.6 kg. The offending involved Mr Tang obtaining methamphetamine and supplying it to a co‑offender who on-supplied it to his own customers. Another co-offender would both supply Mr Tang with methamphetamine and receive methamphetamine from him.
Mr Tang was generally supplying half, one, two, or three ounces (14, 28, 56, and 84 grams respectively) at a time. He charged between $10,000 and $15,000 an ounce. The dealing was conducted out of his inner-city apartment or at agreed meeting places at storage facilities, hotels and residential properties across Auckland.
The four possession for supply charges cover the same period. Three of the charges involved transactions between Mr Tang and one of his co-offenders. The fourth charge was for methamphetamine found by police when they executed a search warrant at Mr Tang’s address. Mr Tang admitted this methamphetamine was for supply.
On 18 September 2015, Mr Tang received 500 g of ephedrine as he was waiting in a parked car. He then drove to another location, handed over the drugs, and collected payment. The original supplier met him at a third location, where Mr Tang handed over the money, less his share.
Police executed the search warrant later that night. In addition to the methamphetamine, they also found approximately $50,000 in cash, which Mr Tang admitted was the proceeds of drug dealing.
Mr Tang was granted bail simpliciter on 8 October 2015. On 12 November 2015, he was arrested and found in possession of a utensil and a quantity of methamphetamine.[9]
District Court sentence
[9]The quantity is not specified in the documents before the Court.
Mr Tang appeared for sentence on 18 May 2017. The guideline judgment of this Court in R v Fatu still applied.[10] The total quantity of the methamphetamine supplied put the offending in band four of those guidelines, attracting a starting point of 10 years to life imprisonment.[11]
[10]R v Fatu [2006] 2 NZLR 72 (CA).
[11]At [34].
The Judge regarded the gravity of the offending as high.[12] The quantities involved (a total of 1.6 kg of methamphetamine and 500 g of ephedrine), the fact that some of the offences were committed on bail, the extent of the harm, and the high level of commerciality were identified as aggravating features of the offending.[13] The Judge characterised Mr Tang’s role as a “lead offender”,[14] and adopted a starting point of 16 years’ imprisonment for the supply-related methamphetamine charges.[15]
[12]R v Tang, above n 7, at [6].
[13]At [6]–[7].
[14]At [7].
[15]At [10].
An uplift of two years was imposed for the “co-offending”, which we take to relate to the ephedrine offending. The global starting point adopted was accordingly 18 years’ imprisonment.[16]
[16]At [10].
From that starting point, a deduction of 20 months (approximately nine per cent) was made for “good record” and remorse. A deduction of four months was applied for the 10 months spent on electronically monitored (“EM”) bail. That discount took into account the offending while on bail simpliciter. A deduction of 15 per cent (amounting to 29 months) for the guilty plea was then applied, reducing the end sentence to 13 years and seven months’ imprisonment.[17] Concurrent sentences of one month’s imprisonment were imposed for the charges of possession of a utensil and possession of methamphetamine while on bail.[18]
[17]At [12].
[18]At [14].
The Judge imposed an MPI of 50 per cent, simply noting that it was “required to hold [Mr Tang] accountable for the harm caused to the community by this type of offending and to reflect the sentencing factors of deterrence and denunciation”.[19]
Was the starting point of 16 years’ imprisonment too high?
[19]At [13].
Mr de Groot, for Mr Tang, submits that the starting point of 16 years’ imprisonment for the supply of methamphetamine offences was excessive.
There is no dispute that the quantity of methamphetamine at issue (1.6 kg) put this offending well into band four of R v Fatu which covers supply of 500 g or more. Mr de Groot submits a starting point of 14 years was appropriate given Mr Tang’s role in the offending, the level of commerciality involved, and the nature of the offending while on bail.
Specifically, Mr de Groot submits there was no support for the Judge’s characterisation of Mr Tang as a “lead offender”. He says that the offending described in the summary of facts suggests that Mr Tang was operating independently, more like a wholesaler, rather than as part of a larger syndicate. He also submits the level of commerciality needs to be kept in perspective, pointing to the absence of evidence regarding large profits or an extravagant lifestyle. Mr de Groot says that the offences committed on bail were also low level and predictable given Mr Tang’s addiction. Finally, he submits that there is a lack of sophistication in Mr Tang’s offending, evident in the “unthoughtful” way Mr Tang communicated with co-offenders, the lack of evidence regarding money laundering, and the “naive” way Mr Tang simply took over the operation after the arrest of his friend.
We agree that the “wholesaler” label is apt to describe Mr Tang’s role. But that is not necessarily inconsistent with the Judge’s description of Mr Tang as a lead offender. Mr Tang was essentially a sole trader, operating independently and with effective decision-making control. In that sense, he was the lead offender in his own operation. It is also true that there were aspects of his offending that appear unsophisticated and naive, and there was nothing to suggest he was generating large profits. Nevertheless, the quantities supplied, and the prices commanded, indicate that Mr Tang was running a significant commercial enterprise. We do not consider the characterisation of Mr Tang’s role as a lead offender in those circumstances led the Judge into error.
We have considered the cases referred to us by counsel for both parties. The 41 supply charges over a relatively short period, the quantities involved, and Mr Tang’s role, make his offending significantly more serious than those referred to us by Mr de Groot.[20] At the other end of the scale, those cases relied on by the Crown involve offending generally more serious than the present case due to additional charges, higher quantities, or the presence of weapons.[21]
[20]R v Norton [2016] NZHC 1035; R v Nguyen HC Auckland CRI-2008-092-2364, 1 December 2009; and R v Wellington [2018] NZHC 2196.
[21]R v Zhou HC Auckland CRI-2006-019-8458, 10 March 2009; R v McQuade HC Auckland CRI-2006-019-8458, 10 September 2008; R v Huang HC Auckland CRI-2006-019-8458, 8 May 2009; and R v C HC Auckland CRI-2006-004-25638, 17 August 2007.
On balance, we consider the starting point of 16 years’ imprisonment was at the upper end, but not outside, the available range.
Was the two year uplift for the ephedrine offending excessive?
The second ground of challenge relates to the two-year uplift applied by the Judge for the supply of ephedrine.
We agree with Mr de Groot that this offending formed part of a connected series of events, with the only difference being the nature of the illegal substance supplied.
Nevertheless, it was appropriate for this offending to be marked by an uplift. Ephedrine is a pre-cursor substance for the manufacture of methamphetamine. Under R v Fatu, the manufacture of methamphetamine attracted higher starting points.[22] The large quantity involved in this case, being 500 g, also warranted an uplift.
[22]R v Fatu, above n 10, at [43].
However, the gravity of this offending had to be assessed in context. Mr Tang’s handling of the ephedrine involved passing it from one offender to the other. He was the middleman in the transaction and his involvement in the supply was somewhat fleeting. There is no suggestion he had any other connection to the manufacturing operation.
Viewed in light of his offending as a whole, we consider this particular transaction adds little to the assessment of Mr Tang’s overall culpability. It is unlikely that a two year uplift would have been applied if the substance supplied had been methamphetamine, rather than ephedrine. We consider an uplift of no more than six months was appropriate for this charge.
Taking the starting point of 16 years’ imprisonment for the supply of methamphetamine, and applying an uplift of six months for the supply of ephedrine, leads to a global starting point of 16 years, six months’ imprisonment. It follows that the global starting point of 18 years’ imprisonment adopted by the Judge was too high.
Should a higher discount have been applied for personal circumstances?
Mr Tang does not challenge the discounts applied by the Judge for “good record” and remorse (twenty months) and for the time spent on EM bail (four months). However, he says that the overall discount (including the discounts applied by the Judge) should amount to 25 per cent when the role of addiction, youth, remorse, and the burden of isolation is taken into account.
Leave is sought to admit the report of a clinical psychologist, Ms Howarth, dated 15 March 2021. The report expands on information contained in the pre‑sentence report regarding Mr Tang’s background and provides independent confirmation of a methamphetamine dependency. The report is not fresh, but it is cogent, and the Crown abides the Court’ decision regarding its admissibility. We consider leave should be granted in these circumstances and order accordingly.
Mr Tang was around 24 years of age at the time of the offending. He is of Chinese descent, and his partner and two children now reside in China, leaving Mr Tang without family support in New Zealand. Mr Tang reported to the psychologist that he was first introduced to methamphetamine in 2014 by a friend. He began working as a driver for that friend who was dealing in methamphetamine. When his friend was arrested, he took over the supplier role. By 2015, Mr Tang estimated that he was using methamphetamine nearly every day and he described being trapped into dealing by his addiction.
We accept that discounts for personal mitigating factors, including addiction, were available pre-Zhang.[23] Another Judge may have given discounts for Mr Tang’s addiction issues, relatively young age, and for the additional burden in serving a sentence in New Zealand without family support. However, at the time Mr Tang was sentenced, discounts were rarely applied for personal mitigating factors in cases of serious drug offending as the principles of denunciation and deterrence took precedence.[24] In light of this prevailing approach and the significant quantities involved, we do not consider the application of a limited discount for personal mitigating features was an error justifying appellate interference.
[23]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648. See R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [12]–[15].
[24]Chen v R [2009] NZCA 445, [2010] 2 NZLR 158 at [174].
In any event, the application of the discounts applied by the Judge (20 months for good record and remorse, four months for time spent on EM bail) to the lower global starting point of 16 years, six months’ imprisonment results in a slightly higher discount (12.12 per cent) than that applied by the Judge. Consistent with this Court’s judgment in Cheung v R, we apply the two-step methodology described in Moses v R in calculating the new sentence.[25] That results in an end-sentence of 12 years’ imprisonment. We are satisfied that such a sentence captures the overall gravity of Mr Tang’s offending.
[25]Cheung v R [2021] NZCA 175 at [48]; and Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381 at [46].
The sentences of one month’s imprisonment imposed for possession of a utensil and possession of methamphetamine, to be served concurrently, remain unaltered.
Should an MPI have been imposed?
The final ground of appeal concerns the 50 per cent MPI imposed by the Judge.
The Judge did not elaborate on the reasons for imposing a MPI in this case, other than to reflect the threshold and factors set out in s 86 of the Sentencing Act.[26] That left the impression that the MPI had been imposed mechanistically, without regard to the particular circumstances of Mr Tang’s case. That was an error in our view.
[26]R v Tang, above n 7, at [13].
There were several features of Mr Tang’s case which suggested that an MPI was not necessary. They included: the fact that Mr Tang was relatively young, had no criminal history, and was previously of good character. The personal addiction issues, support from his family (albeit from afar), and the degree of insight into his offending, lessened the need for accountability, deterrence and denunciation. The psychological report, which was not before the Judge, bolsters this assessment. We consider an MPI was not required in this case, and the order imposing it should be quashed.
Result
The application for leave to admit the report of Ms Howarth dated 15 March 2021 is granted.
The appeal against sentence is allowed. It is substituted for a sentence of 12 years’ imprisonment.
The District Court’s order imposing the MPI is quashed.
Solicitors:
Crown Law Office, Wellington
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