The Queen v Simon Wu
[2002] NZCA 138
•18 June 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA65/02 |
THE QUEEN
V
SIMON WU
| Hearing: | 12 June 2002 |
| Coram: | McGrath J Williams J Salmon J |
| Appearances: | H B Leabourn for Appellant B J Horsley for Crown |
| Judgment: | 18 June 2002 |
| JUDGMENT OF THE COURT DELIVERED BY SALMON J |
In May 2000 the appellant was arrested and charged with importing and possession for supply of the Class A drug cocaine. In May 2001 he pleaded guilty to the charge of possession for supply and was sentenced to eight years imprisonment. While on bail in relation to that charge he was involved in the importation of 25,170 tablets of the Class B drug MDMA, commonly known as ecstasy. The importation had an approximate street value of between $2 and $2.5 million. This was, at that time, the single largest seized consignment of ecstasy in New Zealand.
The appellant pleaded not guilty to charges of importing and possession for supply of ecstacy. He was found guilty following trial by jury and on 28 February 2002 was sentenced to ten years imprisonment, that sentence to be cumulative on the earlier one.
In this appeal the appellant claims that the combined sentence of 18 years is excessive for the overall offending and that the sentencing Judge failed properly to take into account the totality principle.
Mr Wu arrived in New Zealand in 1988 when he was aged 18. He was granted permanent residency in 1994. He has lived with a partner for six years and has two young children. As mentioned above, in May 2000 he was arrested and charged with importing and possession for the purpose of supply of 416 grams of cocaine. The cocaine was approximately 80 per cent pure and was said to have a street value of approximately $950,000. Some 12 months after his arrest Mr Wu pleaded guilty to the charge of possession for supply and was discharged on the importing charge. He was sentenced by Paterson J to eight years imprisonment on 29 May 2001. This was his first offence.
Mr Wu was on bail up to the time of his plea of guilty. During that time, in January 2001, he was involved in the importation into New Zealand of the ecstasy referred to above. The drug was imported into New Zealand from Belgium and was contained within a BMW gearbox. Mr Wu and two alleged co-offenders pleaded not guilty. Mr Wu and one of his co-offenders were found guilty of both charges. The other alleged co-offender was acquitted. Not only did Mr Wu commit this offending while on bail, but he also committed a further breach of the terms of his bail in his association with his co-accused.
The sentencing Judge described Mr Wu’s involvement in the ecstasy importation as “brazen defiance”. That does not seem to us to be an inappropriate description. She referred to authority which suggested that offending on bail would normally be met with a cumulative sentence. She then went on to consider various decisions relating to sentencing for charges concerned with the importation of ecstasy.
In the present case the Judge took ten years imprisonment as her starting point for the importing charge. There were no mitigating factors which would justify a reduction from that starting point. The appellant’s counsel, Mr Leabourn, accepts that looked at on its own the ten year sentence is appropriate.
The Judge then acknowledged the need to take into account the totality principle and referred to R v Nuku [1969] NZLR 343. She noted counsel’s submission that the Court should stand back and ensure that the sentence imposed should not be crushing when viewed in its totality. She then said:
[20] … The Court is faced here with two major drug dealing offences committed by Mr Wu in close proximity. It is apparent from the quantities and values involved, that these were indeed major offences. The second, for which Mr Wu must be sentenced this morning was committed while he was on bail for the first.
[21] While I must stand back and consider the totality principle in relation to the sentence I now impose, the gravity of this offending in my view would mean a misapplication of the totality principle were any significant concession in the penalty for this offending to be granted which would be the effect of imposing concurrent sentences. I therefore impose on Mr Wu in respect of the importation of the ecstasy conviction, a sentence of 10 years. In respect of the possession for supply conviction I impose a sentence of 9 years to be served concurrently. The sentence of 10 years for this offending is to be served consecutively with the penalty for the earlier offending of which Mr Wu was convicted, possession for supply of cocaine, namely 8 years. That gives a total of 18 years which for the reasons I have endeavoured to articulate, in the particular circumstances of this offending I do not consider excessive.
Mr Leabourn submits that the sentence imposed was manifestly excessive. He argued that if cumulative sentences are imposed the second sentence will be “shaped”, that is that it will be shorter than otherwise would have been the case so as to achieve the appropriate overall sentence for the totality of the offending.
We do not accept the submission in that form. Rather, we agree with the statement of principle in R v Bocskei [1970] 54 Cr Apr R 510 at 521 where Widgery LJ said:
When consecutive sentences are imposed the final duty of the sentencer is to make sure that the totality of the consecutive sentences is not excessive. If he thinks that the total may be excessive then it is his duty to reduce the amount by what he thinks proper.
And as this Court has said in R v Bradley [1979] 2 NZLR 262, 263:
As a general rule … consecutive sentences should not be such as to result in an aggregate term wholly out of proportion to the gravity of the offences viewed as a whole.
And later:
We would hesitate to attempt to refine the principle or to evolve rules of thumb for its application. For our purposes it is sufficient to say that undoubtedly it is crucial in arriving at a sentence for several offences, after considering them individually, to stand back and look in a broad way at the totality of the criminal behaviour.
The sentencing Judge referred to the totality principle, however Mr Leabourn submits that she failed to take it into account. He refers to the passage quoted above where the Judge said:
… the gravity of this offending in my view would mean a misapplication of the totality principle were any significant concession in the penalty for this offending to be granted…
In fact, of course, she made no concession at all, nor does she articulate the reasons why she considered it inappropriate to do so other than by reference to the gravity of the offending.
We have already observed that Mr Leabourn accepts that looked at on its own the ten year sentence was appropriate. He also accepts that a sentence cumulative on the earlier one is inevitable. The only question for determination on this appeal is whether the combined sentence of 18 years is excessive for the totality of the offending bearing in mind the particularly aggravating factor of serious offending while on bail.
Mr Horsley, for the Crown, submits that the comments of this Court in Jane v R [1996] 14 CRNZ 101 at 106 are relevant:
… when the notion of a crushing sentence is under consideration related to the possibility of reform it is relevant to have regard to likely release date and not just to the full term of the sentence.
Mr Horsley went on to submit that the appellant realistically faces release after serving one-third to one-half of the total sentence, that is some six to nine years. He submitted that in the context of serious drug offending, the need for deterrence and the feature of committing the second offence on bail this sentence can be seen as severe but not in the crushing category.
One guide to the assessment of the totality of the criminal behaviour in a case such as this is to compare the sentence with those for serious Class A drug offending. In that respect the following decisions are helpful. In R v Liava’a and Others (CA175/98, judgment 17 August 1998) the principal offender pleaded guilty to four importations of cocaine from Hawaii via Tonga. The total weight of the importations was in excess of four kilograms of powder of an average 60 per cent purity. This was the largest importation of cocaine detected to that date in New Zealand and was estimated to have a street value of some $5 million. Liava’a, who was the ring-leader, pleaded guilty and received sentences totalling 12 and a half years imprisonment. The Solicitor-General appealed. The Court of Appeal said that the Sentencing Judge had correctly regarded 17 to 18 years as the appropriate range for the totality of the offending, but had taken a starting point of 15 to 16 years which was too low. However, acknowledging that this was a Solicitor-General’s appeal the Court held that the discount the Judge had made for mitigating factors, particularly the admissions, was not so generous as to justify an increase in his sentence. Consequently, the appeal was dismissed.
In R v Tan, Teo and Lee (CA184,311/90, 148/91, judgment 24 May 1991) total sentences of 17 years, 16 years and 17 years were upheld for the importation of approximately two kilograms of high grade heroin from South East Asia, which when broken down would have a street value of approximately $16 million. In R v Prast [1982] 1 NZLR 56, concurrent sentences of 17 years for importing and supplying heroin and 12 years for importing and supplying morphine were upheld.
By comparison with these sentences which were imposed for Class A offending, we conclude that the total 18 year sentence in this case is excessive. We consider that a total sentence of 16 years is appropriate to reflect the gravity of both offences and the additional aggravating features to which we have referred.
Accordingly, whilst we accept that on its own the sentence of ten years for the ecstasy importation was an appropriate one, it should be reduced to eight years to take into account the totality principle. That sentence is to be served cumulatively on the earlier sentence of eight years imprisonment. The sentence of 9 years imprisonment on the possession of ecstasy charge is likewise reduced to one of 8 years imprisonment and will remain concurrent with the sentence on the importation of ecstasy charge.
The appeal is allowed. The ten year sentence is quashed. A sentence of eight years imprisonment is substituted, to be served cumulatively on the earlier sentence of eight years imprisonment.
Solicitors:
Crown Law Office, Wellington
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