Wan v R
[2020] NZCA 328
•4 August 2020 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA89/2019 [2020] NZCA 328 |
| BETWEEN | GABRIEL WAN |
| AND | THE QUEEN |
| Hearing: | 16 June 2020 |
Court: | Courtney, Brewer and Hinton JJ |
Counsel: | M J Dyhrberg QC and H G de Groot for the Appellant |
Judgment: | 4 August 2020 at 11 am |
JUDGMENT OF THE COURT
AThe application for an extension of time is granted.
BThe appeal is allowed.
C The sentence of 16 years and six months’ imprisonment is quashed, and a sentence of 13 years and six months’ imprisonment substituted.
____________________________________________________________________
REASONS OF THE COURT
(Given by Hinton J)
In August 2017 a jury found Mr Wan guilty of one charge of importing methamphetamine.[1] On 29 September 2017 Fitzgerald J sentenced Mr Wan to 16 years and six months’ imprisonment.[2]
[1]Misuse of Drugs Act 1975, s 6(1)(a) and (2)(a).
[2]R v Wan [2017] NZHC 2376.
Mr Wan now appeals against sentence. The parties are agreed that this Court’s recent judgment in Zhang v R revising the approach to sentencing for methamphetamine-related offending applies to Mr Wan’s benefit, such that the sentence imposed was manifestly excessive. [3] The parties are however apart on the question of what sentence should now be substituted on appeal.
[3]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
Mr Wan’s notice of appeal was filed on 7 March 2019, some sixteen months or so out of time.[4] Absent any prejudice to or opposition from the Crown, and especially given the Crown’s acceptance that the appeal should be allowed, we grant leave to appeal out of time.
Offending
[4]Criminal Procedure Act 2011, s 248(2).
Customs officers intercepted a package at Auckland International Airport on 27 July 2016. That package had left Hong Kong on 9 July 2016. They found 19.1 kilograms of methamphetamine concealed among the kitchen supplies the parcel had been declared to contain.
Mr Wan was, as the Judge put it, the “catcher” for the package. He had arrived in New Zealand on 8 May 2016 with the expectation of profiting from receiving goods into New Zealand on behalf of a Hong Kong based group he called “the company”. A friend in Hong Kong had introduced him to “the company”. Mr Wan planned to use the payment he would receive to fund future studies.
When Mr Wan arrived at Auckland Airport, he told officials he intended to take a short holiday in New Zealand. He had pre-printed material of tourist activities and had been provided by “the company” with a return ticket for eight days later. In fact, he set about looking for accommodation and an office to which “the company” could send the package containing the methamphetamine. Evidence led at trial indicated Mr Wan had been at pains to ensure the office he rented was discreet, based on directions he had received from representatives of “the company”. He was in ongoing contact with these people via internet messaging. Mr Wan took a number of steps to prepare for the package’s arrival including communicating with the import agent and arranging rental payments, in some of these tasks using false names. He had discussions about whether enrolling as a student or incorporating a company might assist the importation. Finally he bought rubber gloves in anticipation of dismantling the package. The package was intercepted before Mr Wan received it.
Mr Wan had asked at the outset whether the goods he would be receiving would be drugs. “The company” told him they would not be. Fitzgerald J noted at sentencing that in convicting Mr Wan the jury obviously accepted that he had either known or had been wilfully blind as to whether the package contained drugs. The Judge concluded it was the former.[5]
High Court Sentencing
[5]Wan, above n 2, at [14].
Having recorded these facts and her finding as to Mr Wan’s state of mind, the Judge noted Mr Wan’s offending fell well within band four under the then‑prevailing methamphetamine guideline judgment, R vFatu.[6]
[6]At [17], citing R v Fatu [2006] 2 NZLR 72, at [36]. Band four applied to cases involving 500 grams or more of the drug and attracted starting points of between 12 years’ and life imprisonment.
The Judge evaluated an appropriate starting point, referring both to the quantity of methamphetamine involved and Mr Wan’s particular role.[7] She described the quantity of 19.1 kilograms as “very significant” and as potentially causing widespread and serious harm to the community.[8] As to role, the Judge noted the offending was premeditated and involved weeks of preparation. Mr Wan had been motivated by the prospect of profiting from his involvement, albeit likely only to a comparatively insignificant extent compared to the ringleaders. Similarly, while his role was logistically “pivotal” in the importation and had involved more autonomy than a mere “courier” or “mule”, his position was nonetheless near the bottom of the hierarchy.[9] He was, she noted, acting under extensive direction. Mr Wan’s actions were sophisticated only because he carried out other individuals’ well-developed plans. Comparing features of Mr Wan’s offending to those seen in the other cases referred to by counsel,[10] the Judge arrived at a starting point of 17 years and 6 months’ imprisonment.
[7]At [18], citing Fatu at [36].
[8]At [21(a)].
[9]At [21(d)–(e)], citing R v Nguyen [2009] NZCA 239 at [25].
[10]At [22]–[24], referring to O’Connor v R [2016] NZCA 414; R v Sze [2016] NZHC 1703; R v Yuen [2016] NZHC 571; and R v Pai [2015] NZHC 2345.
Turning to mitigating factors personal to Mr Wan, the Judge noted that before coming to New Zealand, Mr Wan apparently had an unblemished record, regular employment and avoided use of drugs or alcohol. While impressed by the eloquent letters of support offered by his parents and others, and noting his expressions of remorse, the Judge was concerned that Mr Wan continued to deny his offending. She said that no discount for remorse was available. However, the Judge considered it relevant that Mr Wan was a young man whose poor decision-making demonstrated “youthful naivety”.[11] Taking account of his naivety and previous unblemished record, coupled with the fact that Mr Wan had limited English and no family in New Zealand, the Judge allowed a one-year discount (about 5.7 per cent), down to 16 years and six months’ imprisonment. [12]
[11]At [28].
[12]At [28], referring to O’Connor, above n 10, at [33].
For similar reasons, in particular Mr Wan’s being “only a young man, with a degree of naivety”, the unlikelihood of his reoffending, his minor role in the importation and the additional hardship he would face as a foreign national prisoner, the Judge did not impose a minimum period of imprisonment under s 86(2) of the Sentencing Act 2002. She was satisfied, as she put it, that Mr Wan’s “already lengthy final sentence” would be a sufficient general deterrent.[13]
The Appeal
[13]At [33].
This Court’s comments in Zhang apply to sentencing appeals regardless of the date of offending or the sentence appealed from, provided the appeal was initiated before the decision in Zhang issued and applying Zhang would benefit the appellant more than applying Fatu.[14] As noted, the parties are agreed that Mr Wan’s appeal demonstrates both these features, and that he should have the benefit of the Court’s revision of the Fatu guidelines in Zhang.
[14]Zhang, above n 3, at [10(p)] and [188]–[191].
On behalf of Mr Wan, Mr de Groot says the starting point adopted by the Judge was manifestly excessive in light of Zhang, having regard to the quantity of drugs involved, Mr Wan’s purely operational role and his “very limited commercial outlook”. He submits that the Judge’s assessment of the background supports an inference that Mr Wan was “cynically deployed” to facilitate the offending of those above him in “the company”, informing his limited culpability. By reference to the position adopted in other cases, he arrives at a proposed starting point of 14 years and six months’ imprisonment. He also submits that greater recognition (specifically, in the order of a 15 per cent discount) should be given for youth, good character, and Mr Wan’s status as a foreign national prisoner. For these reasons he says an end sentence of 12 years and four months’ imprisonment would be appropriate.
For the Crown Mr Davie agrees that, applying Zhang, the starting point adopted was too high but says the correct starting point is 15 years’ imprisonment. Similarly, Mr Davie accepts that in light of the change in approach signalled in Zhang, the discount the Judge allowed in respect of personal factors was “conservative and could have been greater”. However, he emphasises that serious offending of this sort requires a stern response, even in respect of comparatively less culpable offenders with limited roles, such that a discount of no more than 10 per cent is appropriate. For these reasons, he contends for an end sentence of 13 years and six months’ imprisonment.
Discussion
Starting point
We agree with counsel that the advent of the new Zhang guidelines means the starting point adopted, while likely appropriate under Fatu, is now materially too high and requires adjustment on appeal.
In terms of the role descriptors adopted by this Court in Zhang, we understand the Judge to have found that Mr Wan had a “lesser” role in the offending, limiting his culpability, given his limited function and influence on those above him and (inferentially) his limited knowledge of the scale of the operation.[15] The Judge also considered, and we agree, that Mr Wan’s offending is made more culpable than it might otherwise have been because he came to New Zealand with the intention to aid in the importation of drugs, as reflected by his lies to the border authorities on arrival.
[15]At [126].
It is clear that Mr Wan was motivated by the prospect of financial reward. Mr de Groot places some emphasis on the fact that, unlike in some of the other cases to which we were referred, there is no evidence as to the amount Mr Wan expected to gain or actually gained from his involvement. We do not think that material. Plainly Mr Wan was driven by profit. We agree with Mr de Groot that any profits accruing to Mr Wan would have been extremely modest compared to those potentially available to his superiors and that he bore a risk of apprehension disproportionate to any likely return from the operation.[16] It could be considered, as Mr de Groot says, that Mr Wan was exploited by those above him in the organisation and arguably by the friend in Hong Kong who enlisted him. Nonetheless, it is clear that Mr Wan was not exploited in the same way as an addict pushed into supplying drugs by their dealer, or a small‑scale supplier of methamphetamine who funds their own usage and addiction through their trade. His deliberate involvement in the drug trade for profit remains more culpable than involvement for reasons of addiction or similar dysfunction.
[16]R v Agu [2017] NZHC 248 at [8]–[9].
Moreover, we agree with Mr Davie that it is important to recall, even following Zhang, that quantity remains “the first determinant of sentencing” for methamphetamine-related offending, reflecting as it does the harm done or potentially done and the scope of the illicit gain or potential gain.[17] The quantity of methamphetamine involved here (19.1 kilograms) falls well into the fifth band in Zhang. There is a significant call for deterrence, denunciation, the promotion of accountability, and public protection in such cases.[18]
[17]Zhang, above n 3, at [103]–[104].
[18]At [133]–[134].
Against this background we turn to assess the relevance of this Court’s approach in the cases of Zhang and Pai v R referred to us by counsel.[19]
[19]Zhang, above n 3; and Pai v R [2020] NZCA 146.
In Zhang, Mr Zhang had made a “significant” contribution to the importation of 17.9 kilograms of methamphetamine.[20] He travelled to New Zealand to meet a consignment of drugs and had taken steps to ensure it cleared Customs. He was somewhat more than a “catcher”, having been involved in repackaging the consignment for sale once it was received, but there was no evidence he would have had a greater role in the supply stage of the operation, or any influence on those above him. He received and was motivated by the prospect of compensation. This Court determined a 15-year starting point was appropriate.[21]
[20]Zhang, above n 3, at [256].
[21]At [257].
The same starting point was reached in Pai, where Mr Pai assisted in the importation of a concealed shipment of 22.6 kilograms of methamphetamine.[22] He had become involved in the operation following a chance encounter with a stranger in a shopping mall during a vacation in New Zealand. The stranger offered Mr Pai and one of his friends $10,000 each if they rented a house and received a package on his behalf. Mr Pai and his friend agreed, renting a house for two months and arranging utilities. Mr Pai signed for the consignment, bought tools to open it, opened it and moved the machines inside the house; all under instruction. In assessing Mr Pai’s role, this Court said it was significant but at the lower end. Mr Pai served an operational function and had been motivated by financial reward, albeit disproportionate to the street value of the drugs. The Court also noted the significant scale of the operation, of which Mr Pai was aware.[23] The Court referred to Mr Zhang’s offending in Zhang, saying that “[b]alancing Mr Pai’s lesser role with the greater quantity of methamphetamine” in Zhang, the same starting point should apply.[24]
[22]Pai, above n 19.
[23]At [52]–[54].
[24]At [56].
We do not consider that this case can be materially distinguished, in terms of the appropriate starting point, from Pai or Zhang.
While recalling that quantity remains the primary factor in sentencing, and Pai did involve a greater quantity, we consider Mr Wan’s culpability greater in terms of role than was true of Mr Pai. Their involvement in the respective importations was broadly similar once engaged but, as Mr Davie notes, Mr Wan’s role involved greater premeditation including travelling to New Zealand to meet a consignment, whereas Mr Pai became involved in the offending following a chance encounter. Overall, we consider Mr Wan and Mr Pai’s culpability sufficiently similar that the same starting point should be imposed.
Similarly, in comparison with Mr Zhang’s case, while Mr Wan helped import more methamphetamine than Mr Zhang, Mr Wan had a lesser role than Mr Zhang. Mr Zhang had some role in preparing the drugs for on-sale, whereas Mr Wan was primarily a catcher. This again suggests, balancing these two offenders’ respective roles and the relative quantities, that the same starting point should be adopted.
We therefore adopt a starting point of 15 years’ imprisonment.
Discounts for personal mitigating factors
At the time of sentencing, this Court had taken a narrower view of the availability of discounts for personal factors in high-level methamphetamine offending, as compared to other types of offending.[25] In applying a discount of about six per cent for personal factors, we consider the Judge took the approach then properly available to her. In Zhang, this Court clarified that mitigating factors personal to an offender are as relevant to sentencing for Class A drug offending as other offending.[26] Accordingly, a less restrictive approach is now appropriate. Mr Davie acknowledges as much in accepting that a discount of ten per cent for personal factors is justifiable.
[25]R v Rawiri [2011] NZCA 244 (2011) 25 CRNZ 254 at [19]–[21].
[26]Zhang, above n 3, at [136].
Mr de Groot does not contest the Judge’s finding that there should be no discount for remorse. He says the factors the Judge did take into account — youth, previous good character and foreign national status — support a discount of 15 per cent overall.
Mr de Groot places particular emphasis on Mr Wan’s age, pointing to a report of Sir Peter Gluckman.[27] Referring to this report, the High Court has noted that “maturation – among boys especially – is not complete until well into the third decade of life, and that the last functions to mature are those of impulse control and judgment”.[28] Mr de Groot also notes that this Court has previously accepted “the fact [that] an offender is a young person can sometimes be given radical effect on sentence, unconstrained by any normative percentage, even where offending is serious”.[29]
[27]Sir Peter Gluckman Improving the Transition: Reducing Social and Psychological Morbidity During Adolescence (Office of the Prime Minister’s Science Advisory Committee, May 2011).
[28]Rarere v Police [2012] NZHC 779 at [36].
[29]Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [96].
Mr Davie says there should be no youth discount at all, given Mr Wan was 23 when he arrived in New Zealand and the Judge’s finding that his offending was pre‑meditated.
The Judge found that Mr Wan’s actions were youthfully naive. We accept it is likely he exercised much poorer judgment than he would have done if more mature. He undertook the riskiest part of the operation for a likely relatively minor sum. In that sense, we consider a “youth” discount may be available, despite Mr Wan being in his early twenties. We note that the 22-year old drug offender in Pai was allowed a youth discount.[30] But such a discount can only be limited where Mr Wan’s offending involved a sustained pattern of deceitful activity leading up to “catching” the drugs, which in turn allowed a lengthy opportunity for reflection. This is quite different from cases of spontaneous offending involving a single action, where youthful impulsivity is more relevant to assessing culpability.[31]
[30]Pai, above n 19, at [41] and [59].
[31]Compare Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.
Mr Wan is clearly entitled to a discount for previous good character. The Judge found that before coming to New Zealand he had an unblemished record, regular employment and avoided the use of drugs and excessive consumption of alcohol. Importantly, the Judge said he was very unlikely to reoffend, which we accept.
Slightly greater recognition should also now be afforded, given this Court’s comments in Zhang,[32] to the extent to which Mr Wan’s foreign national prisoner status will mean a sentence that would be appropriate for another offender will be disproportionately severe in Mr Wan’s case.[33]
[32]See Zhang, above n 3, at [29].
[33]Sentencing Act 2002, s 8(h).
As to the appropriate quantum of the discount to be applied, we note this Court’s treatment of Mr Yip’s appeal in Zhang. After adopting a 23-year starting point in respect of Mr Yip’s leading role in the importation of 60.9 kilograms of methamphetamine on behalf of a Hong Kong based syndicate,[34] the Court approved a discount of three years, or about 13 per cent, in respect of personal mitigating factors. These were Mr Yip’s genuine remorse, youth, lack of prior convictions, and the hardship he would face as a foreign national prisoner.[35] We note also though that in Pai, for similar reasons, Lang J adopted a discount of only about 7.5 per cent. The quantum of the discount was not disturbed on appeal but was also not at issue.[36]
[34]Zhang, above n 3, at [300].
[35]At [301].
[36]Pai, above n 19, at [41], [57], and [59].
Finally we note this Court’s recent decision in Chai v R.[37] The facts were materially different to this case but the starting point and therefore level of culpability was similar. Mr Chai was a 40-year-old (at the time of sentencing) who travelled to New Zealand from Malaysia for the sole purpose of dealing in drugs. He posed as a tourist, staying for six months. Later he was joined by two compatriots using the same cover. Their role was to receive packages of ephedrine, a precursor substance for methamphetamine sent from overseas exporters, and supply it to others further along the dealing chain. One day, having processed 60 kilograms of ephedrine in this way Mr Chai was “surprise[d]”[38] by the arrival of two kilograms of methamphetamine. From a starting point of 16 years’ imprisonment, discounts were allowed on appeal of 10 per cent for previous good character and good rehabilitative prospects (evidenced by courses of self-improvement undertaken on remand and insight), and five per cent for foreign national prisoner status.[39]
[37]Chai v R [2020] NZCA 202.
[38]At [2].
[39]At [31] and [33]–[34].
Having regard to these cases and noting the absence of any possible remorse discount, or of the rehabilitative courses in Chai, we consider a discount of 10 per cent, or one year and six months, appropriately recognises Mr Wan’s personal mitigating factors. We might have allowed a little more, but we note that the Judge’s decision not to impose a minimum period of imprisonment, which is not challenged on appeal, was influenced by the same factors that have led us to increase the discount, and also by the length of the final sentence, which is now materially shorter.
The end sentence therefore becomes 13 years and six months’ imprisonment.
Result
It follows that the application for an extension of time is granted and the appeal allowed.
The sentence of 16 years and six months’ imprisonment is quashed, and a sentence of 13 years and six months’ imprisonment substituted.
Solicitors:
Crown Law Office, Wellington for Respondent
12