Wang v R
[2021] NZCA 79
•19 March 2021 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA480/2020 [2021] NZCA 79 |
| BETWEEN | YANG WANG |
| AND | THE QUEEN |
| Hearing: | 15 February 2021 |
Court: | Cooper, Wylie and Katz JJ |
Counsel: | S N B Wimsett for Appellant |
Judgment: | 19 March 2021 at 11 am |
JUDGMENT OF THE COURT
AThe appeal against sentence is allowed.
BThe sentence of five years and six months’ imprisonment is quashed and substituted with a sentence of four years’ imprisonment.
____________________________________________________________________
REASONS OF THE COURT
(Given by Katz J)
Mr Wang pleaded guilty to importing 430.1 grams of the Class A drug methamphetamine,[1] and 4,916 grams of the Class B drug MDMA.[2] He was sentenced by Judge P Winter to five years and six months’ imprisonment.[3]
[1]Misuse of Drugs Act 1975, s 6(1)(a) and (2)(a). The maximum penalty for this offence is life imprisonment.
[2]Section 6(1)(a) and (2)(b). The maximum penalty for this offence is 14 years’ imprisonment.
[3]R v Wang [2020] NZDC 17142 [District Court sentencing notes].
Mr Wang now appeals his sentence on the basis that it is manifestly excessive. Mr Wimsett, counsel for Mr Wang, submitted that the starting point was too high, the uplift applied in respect of the MDMA offending was also too high and that insufficient discount was given for Mr Wang’s youth.
The offending
On 13 February 2019, the New Zealand Customs Service examined a package containing 4,916 grams of MDMA (with a purity of 75 per cent). The package was addressed to a “James Bell” at an address on Remuera Road, Auckland. In January 2019, Mr Wang had rented a room at that address. He provided the landlord with the same cell phone number as the contact number specified on the package. Mr Wang’s role was to collect the package from the delivery address and pass it on to a third party.
On 1 May 2019, Customs examined a further package. It contained 430.1 grams of powder containing methamphetamine (with a purity of 77 per cent). This time the package was addressed to Andy Kun at an address on St Johns Road, Auckland. The package was not, however, for an Andy Kun. Rather, the specified contact phone number belonged to Mr Wang. Prior to customs seizing the parcel, Mr Wang had agreed to collect it and deliver it to a third party. In addition, Mr Wang’s phone was used to pay the Customs duties, had the consignment details recorded on it, contained Uber records showing him at the address at the time of importation and contained discussions with a member of an Asian crime syndicate about the package.
On 18 July 2019, Customs conducted a search at Mr Wang’s home address in the Auckland CBD. A variety of evidential material was located including two empty Spark SIM packs, a black backpack containing zip lock bags and rubber gloves, a black Huawei phone, a shipping document and a rented room key to an unknown location. Mr Wang was interviewed by Customs officers. He confirmed that the cell phone numbers referred to in [3] and [4] above belonged to him.
The District Court decision
The Judge sentenced Mr Wang to five years and six months’ imprisonment. The Judge took the importation of methamphetamine as the lead offence. He found that Mr Wang played a “lesser role” in the importation and that he “performed a limited function under direction”.[4] His involvement was as a result of naivety. The Judge noted that 430.1 grams of methamphetamine is near the top end of band 3 in the guideline judgment of Zhang v R.[5] He then stated that “[b]and 3 in Zhang stipulates a starting point sentence of eight to 15 years,” before concluding that Mr Wang’s involvement justified a starting point of eight years’ imprisonment in respect of the importation of methamphetamine.[6] The Judge further explained that:[7]
The starting point sentence … I have imposed is based on Mr Wang’s lesser role. That is why I have imposed a starting point sentence of eight years which is at the bottom end of band 3 for the methamphetamine …
[4]At [36].
[5]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].
[6]District Court sentencing note, above n 3, at [34].
[7]At [37].
The Judge’s understanding that eight years’ imprisonment was at the bottom end of band 3 in Zhang is incorrect. Band 3 in the predecessor guideline judgment of R v Fatu was from eight to 15 years’ imprisonment.[8] Band 3 in Zhang, however, is from six to 12 years’ imprisonment.[9] The Crown sentencing submissions in the District Court included a table which had the Fatu bands in one column and the Zhang bands in the adjacent column. It seems that the Judge may have inadvertently read from the wrong column.
[8]R v Fatu [2006] 2 NZLR 72 (CA).
[9]Zhang v R, above n 5, at [125].
As for the MDMA charge, the Judge noted that 4,916 grams fell within category 2 of R v Wallace, which suggests a starting point of between five and eight years’ imprisonment.[10] He found that the commercial importation of MDMA on a substantial scale warranted an uplift of three years to the starting point.[11] This brought the total starting point to 11 years’ imprisonment. This starting point took into account Mr Wang’s limited role in the operation.[12]
[10]District Court sentencing notes, above n 3, at [35] citing R v Wallace [1999] 3 NZLR 159 (CA).
[11]At [35].
[12]At [36].
The Judge then applied the following discounts for Mr Wang’s personal mitigating factors:
(a)a five per cent discount for remorse;[13]
(b)a 10 per cent discount for having no prior convictions;[14]
(c)a 10 per cent discount for youth;[15]
(d)a 20 per cent discount for his guilty plea;[16] and
(e)a deduction of six months for the period of time spent on electronically monitored bail.[17]
[13]At [40].
[14]At [40].
[15]At [40].
[16]At [45].
[17]At [46].
This resulted in an end sentence of five years and six months’ imprisonment.[18]
Was the starting point for the methamphetamine offending too high?
[18]At [47].
Mr Wimsett submitted that, given Mr Wang’s lesser role in the offending and his youth, the Judge should have shifted between bands and adopted a starting point towards the lower end of band 2 of Zhang (two to nine years’ imprisonment).[19] He suggested that, if this approach were taken, an appropriate starting point for the methamphetamine offending would be four years’ imprisonment.
[19]Zhang v R, above n 5, at [125].
In Zhang, this Court described three broad categories of role in methamphetamine offending:[20]
First (and attracting a more substantial scale) there is the “leading role”. This applies where the offender is directing or organising buying and selling on a commercial scale and/or is closely connected to product source and/or has an expectation of substantial financial gain. The second is the “significant role”. That is where the offender has an operational or management function within a chain, has subordinates (who may have been recruited or intimidated by the offender) and/or is motivated by financial or other advantage. The third tier is the “lesser role”. Here the offender will probably have performed a limited function under direction and/or may have been engaged by duress, naivety or other vulnerability.
[20]At [115].
Mr Wimsett submitted that Mr Wang’s role was a lesser, or “third tier” role. He submitted that R v Fangupo was broadly analogous.[21] In that case, Downs J adopted “a generous approach” in respect of two defendants, Mr Ikuia and Mr Finau, to recognise “the striking differences” between them and the leaders of the operation.[22]
[21]R v Fangupo [2019] NZHC 2896. The decision was partially overturned on appeal in Fangupo v R [2020] NZCA 484, but not with respect to the defendants’ sentences that are relevant to the present case.
[22]At [33].
Mr Ikuia helped import 449 grams of methamphetamine by providing a business address for a package in exchange for $5,000.[23] He was described as “nothing more than a pawn”.[24] Given Mr Ikuia’s “very modest role and naivete”, Downs J adopted a starting point of five years’ imprisonment.[25]
[23]At [23].
[24]At [23].
[25]At [32].
Mr Finau helped import at least 5.1 kilograms of methamphetamine by providing addresses for packages to be sent.[26] Those addresses were his own address and the address of a family member. Mr Finau was “barely competent”.[27] Downs J adopted a starting point of eight years’ imprisonment, recognising that but for the influence of others, Mr Finau would never have been drawn into the offending.[28]
[26]At [22].
[27]At [22].
[28]At [31].
Another defendant in related proceedings, Mr Singh, successfully appealed his sentence.[29] Mr Singh had been sentenced earlier than his co-offenders, when the Fatu guidelines applied.[30] He subsequently appealed his sentence on the basis of disparity with Mr Finau’s sentence.[31] Mr Singh had a similar role in importing packages to his home address containing a total of 4.45 kilograms of methamphetamine, in exchange for $10,000.[32] He was naive and did not know of the quantity of methamphetamine involved.[33] This Court allowed the appeal and adopted a starting point of eight years’ imprisonment.[34]
[29]Singh v R [2020] NZCA 211.
[30]At [2].
[31]At [5]–[7].
[32]At [1].
[33]At [1].
[34]At [20].
Mr Wang’s role in the present offending is arguably somewhat greater than the offenders in Fangupo, given that his phone was used to pay the Customs duties, had the consignment details recorded on it and contained discussions with a member of an Asian crime syndicate about the package. Nevertheless, Mr Wang’s role in the operation was still fairly limited, having regard to the indicia set out in Zhang.[35] He was to receive little financial reward. His involvement stemmed from naivety and exploitation, and he was afraid of those who spurred his involvement because of their gang background. While Mr Wang had some logistical role in importing the package, it remained at the direction of those in the crime syndicate. Mr Wang’s role clearly still fits within the lesser role category of Zhang.
[35]See Zhang v R, above n 5, at [126].
In terms of the quantity of drugs imported, Mr Finau and Mr Singh each imported over 10 times the quantity of methamphetamine (5.1 and 4.45 kilograms respectively) that Mr Wang did (430.1 grams). Zhang recognises that quantity “remains a reasonable proxy both for the social harm done by the drug and the illicit gains made from making, importing and selling it”.[36]
[36]At [103].
Mr Ikuia imported a similar quantity of methamphetamine to Mr Wang, that being 449 grams (slightly greater than Mr Wang’s 430.1 grams). However, Mr Wang’s greater involvement must be recognised.
Taking these factors into account, together with the Judge’s stated intention to adopt a starting point at the bottom of band 3 of Zhang, it is our view that a starting point of six years’ imprisonment is appropriate.
Was the uplift applied for the MDMA offending appropriate?
The Judge found that the commercial importation of MDMA on a substantial scale warranted an uplift of three years to the starting point.[37] Mr Wimsett submitted that an uplift of 12 months’ imprisonment for the MDMA offending would have more appropriately reflected the totality of the offending.
[37]District Court sentencing notes, above n 3, at [35].
We accept the Crown’s submission, however, that the Judge did not err in assessing the appropriate starting point as six years’ imprisonment for the MDMA offending, and then deducting three years for totality. A starting point of six years was within range, albeit given the quantity involved it was arguably towards the lower end of the available range.[38]
[38]See R v Wallace, above n 10, at [31]; R v Dixon [2008] NZCA 52 at [72]–[75]; Winkels v Police [2017] NZHC 2944 at [7] and [41]; and R v Kavaleros HC Auckland CRI-2009-404-384, 12 August 2011 at [8] and [12]–[14].
As for totality, the MDMA offending is similar in nature to the methamphetamine offending and Mr Wang’s role in the operation was similar. However, the offending occurred at a separate time, involved the logistical management and importation of another package, and the quantity of MDMA imported was much greater than the quantity of methamphetamine imported. Given these factors, a three-year uplift was within range.
Was the discount applied for youth inadequate?
The final issue raised by the appeal is whether the discount applied for Mr Wang’s youth was inadequate.
The MDMA offending occurred shortly before Mr Wang’s 20th birthday. The methamphetamine offending occurred approximately three months later. Mr Wimsett submitted that a 10 per cent discount for youth was inadequate. He noted that s 6(4) of the Misuse of Drugs Act 1975 expressly recognises that young people (under 20 at the time of the offending) can be dealt with differently from older offenders and that a sentence of imprisonment is not always appropriate. He submitted that a discount of 20 per cent was appropriate.
In Churchward v R, this Court noted that adolescents often have a reduced ability to make wise judgements, a greater propensity for risk, and a susceptibility to negative influences.[39] However, the effect of youth in sentencing can vary:[40]
… 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. In other cases that is not possible. The young age of the offender cannot be accorded presumptive, let alone paramount, weight. The objective seriousness of the offending, the young person’s part in it, anything aggravating and otherwise mitigating must also be weighed.
[39]Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77]–[81].
[40]Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [96].
In this case, it is our view that Mr Wang’s youth warranted a somewhat greater discount. Mr Wang’s age and immaturity appears to have played a significant factor in the offending. The observations made by this Court in Churchward clearly apply to Mr Wang’s conduct in this case. In our view, the appropriate discount for Mr Wang’s youth is 15 per cent.
Reducing the starting point for the methamphetamine offending to six years’ imprisonment and increasing the youth discount to 15 per cent results in an end sentence of four years’ imprisonment.
Mr Wimsett submitted that s 6(4) of the Misuse of Drugs Act, correctly interpreted, permits the imposition of a home detention sentence on youth offenders even where their sentence of imprisonment would normally be more than two years. However, even if that were so, such a sentence could not be justified in Mr Wang’s case, given the seriousness of his offending.
Result
The appeal is allowed.
The sentence of five years and six months’ imprisonment is quashed. A sentence of four years’ imprisonment is substituted.
Solicitors:
Crown Law Office, Wellington for Respondent
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