Wang v The Queen
[2021] NZHC 445
•9 March 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-511
[2021] NZHC 445
BETWEEN HUI WANG
Appellant
AND
THE QUEEN
Respondent
Hearing: 2 March 2021 Counsel:
D S Niven for Appellant
K O M Fitzgibbon for Respondent
Judgment:
9 March 2021
JUDGMENT OF BREWER J
This judgment was delivered by me on 9 March 2021 at 4:00 pm Registrar/Deputy Registrar
Solicitors:
Meredith Connell (Auckland) for Respondent
WANG v R [2021] NZHC 445 [9 March 2021]
Introduction
[1] Mr Wang appeals his sentence of two years and three months’ imprisonment imposed on him by Judge Paul on 25 August 2020.1
[2] Mr Wang contends the sentence is manifestly excessive. His submission is that the penultimate sentence should have been less than two years’ imprisonment and that home detention should have been the final outcome.
[3] My task is to determine whether there is an error in Mr Wang’s sentence such that I should impose a different sentence. If the sentence is manifestly excessive then that would be an error that must be corrected.
Background
[4] Mr Wang pleaded guilty to three charges of money laundering.2 The charges related to Mr Wang’s part in a large scale methamphetamine importation and distribution operation. Mr Wang was originally charged with one charge of being a member of an organised criminal group and two charges of money laundering. Mr Niven for Mr Wang told me that after considerable negotiation, following the disclosure of a large volume of evidence, a charge bargain was reached whereby the charge of being a member of an organised criminal group was substituted with the further charge of money laundering. As Mr Niven emphasised, this had the effect of removing any allegations that Mr Wang was himself involved with the importing of methamphetamine and its distribution.
[5] As a result, the summary of facts to which Mr Wang pleaded guilty relates to three transactions. The first occurred on 22 December 2018 when a member of the importation group called Mr Wang and arranged to meet him near a hotel where he handed over a backpack containing “tens of thousands of dollars in cash from the sale of methamphetamine from the first importation”.
1 R v Wang [2020] NZDC 17229.
2 Crimes Act 1961, s 243; maximum penalty of seven years’ imprisonment.
[6] There is nothing in the summary of facts about what Mr Wang did with the cash subsequently.
[7] The second transaction occurred on 14 January 2019. On that date another member of the importation group contacted Mr Wang and he travelled to meet the group member outside the group member’s home address. The group member handed
$265,000 in cash to Mr Wang.
[8]Again, the summary of facts is silent about what Mr Wang did with the money.
[9] The third transaction occurred on 6 February 2019. On that date the group member involved with the second transaction contacted Mr Wang and arranged to meet him at an address in Onehunga. The group member handed Mr Wang $62,000 in cash. The summary of facts records that shortly after receiving this money Mr Wang travelled to Browns Bay on the North Shore where he parked next to “an associate and handed over the cash for onwards remittance”.
[10] There are complicating factors in Mr Wang’s sentencing which I will set out now:
(a)On 27 February 2017, Mr Wang was sentenced to two years and nine months’ imprisonment on one charge of possessing methamphetamine for supply and one charge of dealing in methamphetamine. At the time he committed the offending which is the subject of the sentencing he was on release parole for that previous offending.
(b)Mr Wang was recalled to continue serving his sentence for the previous offending when he was charged with the current offending. He served the entire sentence.
(c)When Mr Wang completed his sentence he was released on bail for the current offending. His bail conditions included a 24-hour confinement to the bail address. Mr Wang spent over nine months subject to this bail condition, without breach.
Judge Paul’s sentence
[11]The basis of Judge Paul’s sentence is set out succinctly in his Judgment:
[15] In terms of the gravity of the offending and where a starting point should be fixed, I take account of the following factors:
(1)Firstly the scale of the offending. It involved $327,000 but potentially more.
(2)The funds came from a very sophisticated operation although I accept your role was far more rudimentary and that is exemplified by the third transaction where you met with a person and then handed on the cash.
(3)In terms of personal benefit, it simply defies credulity that you did not receive some personal benefit given the trust that was placed in you to receive and pass on the significant amounts of cash.
(4)Also in terms of your knowledge, you were not a reckless participant. You knew or believed the cash came from criminal offending and it seems unlikely indeed that you were so naïve as to not be aware it came from drug offending, particularly given you were on parole for drug offending and the whole circumstances around the passing of the money on to you and you then moving it along.
[12] The Judge had been referred to quite a number of cases which counsel submitted were comparable to Mr Wang’s case. Judge Paul, having had regard to those cases, adopted a three year starting point. The Judge did not impose an uplift to take into account Mr Wang’s recent methamphetamine convictions, nor for the current offending occurring during his release parole for that previous offending. The Judge considered that Mr Wang’s recall to prison to serve out the remainder of his sentence for the previous offending negated the need for any uplift. Neither Mr Niven nor Ms Fitzgibbon for the Crown suggests this was inappropriate.
[13] The Judge had the benefit of a cultural background report submitted on behalf of Mr Wang. The Judge did not consider the cultural report raised any mitigating factors given Mr Wang’s convictions for dealing in methamphetamine and his knowledge that the funds he was laundering came from drug offending. He declined to allow a discount.
[14] The Judge did, however, allow Mr Wang a full 25 percent discount for his pleas of guilty. The Judge calculated the discount as nine months.
[15] Judge Paul noted that the end sentence of two years and three months’ imprisonment precluded a sentence of home detention.
The appeal
[16] Mr Niven submits the starting point of three years was too high when considered against the comparable cases. Mr Niven submits the summary of facts does no more than show Mr Wang to be a cash courier and completely unconnected with the importation and distribution of methamphetamine. He submits there is no available inference that Mr Wang knew the money was the proceeds of drug dealing. The description of the third transaction establishes that Mr Wang merely took cash from one person, travelled a short distance, and handed it over to another person. Nothing more serious can be inferred in relation to the first two transactions.
[17] Mr Niven submits the Judge erred in referring to the sophistication of the overall drug importation and distribution operation. That is because the summary of facts does not involve Mr Wang in the operation. All Mr Wang did was transport cash from one person to another.
[18] Mr Niven also points out there is no evidence Mr Wang received any significant gain. He does not suggest that the Judge’s inference that Mr Wang was motivated by commercial gain is wrong, but asserts there is no basis for inferring that the benefit Mr Wang received was anything other than “trivial” compared to the risks and consequences.
[19] Mr Niven submits further that the Judge was wrong to disregard the cultural report. He referred me particularly to paragraph 37 of that report which records Mr Wang’s initial view that his offending was victimless, merely helping a friend “with some shared financial benefits to both parties”. However, Mr Wang was later reported as recognising that what he had done was wrong:
The writer considers cultural perspectives and attitudes with possibility of influence on the basis of Hui Wang’s admission and the general acceptance by
his family he was assisting a friend and not “really” doing anything “criminally” offensive. It is noted however, Hui Wang now appears to be of more pro social views and was generally considered remorseful and reflective in his comments to the writer. The writer feels his wife and her illness may have assisted in his understanding of this.
[20] Mr Niven submits that a separate discount must be given for the total period (in excess of nine months) Mr Wang spent on bail with a 24-hour curfew.
[21] Mr Niven argues further that if the Judge was in error such that the sentence of imprisonment should have been for two years or less, then home detention was the appropriate sentence:
i.Due to being recalled, the appellant has already spent significant time in custody as a consequence of this offending (when bail was not otherwise opposed);
ii.He is assessed as presenting a medium risk of reoffending;
iii.He has a good record of compliance with bail conditions;
iv.He has a high level of family support;
v.He currently has the option of employment available to him;
vi.The legal requirement to impose the least restrictive sentence;
vii.This would be consistent with end sentences in comparable cases;
viii.There are mitigating factors identified in the cultural report.
[22] Finally, Mr Niven points out that Mr Wang has already served slightly more than six months of his prison sentence.
The Crown’s position
[23] Ms Fitzgibbon supports Judge Paul’s starting point of three years’ imprisonment. Her analysis of the cases differs from that of Mr Niven.
[24] Ms Fitzgibbon submits that the Judge made particular reference to the cases of R v Khan, R v Williams and R v Le.3 The Judge’s starting point of three years’ imprisonment is between the starting points adopted by the Judge in Khan and
3 R v Le [2018] NZHC 2199.
Williams (two years six months and two years three months respectively) and the starting point adopted in R v Le (four years):
3.4In light of the authorities referred to above, Judge Paul determined that a starting point of three years was appropriate. In doing so, his Honour necessarily determined that the seriousness of the offending was between Khan and Le. The Crown submits that such a finding was available to his Honour in the circumstances. The scale and sophistication of the offending draws comparisons to Mr Khan’s offending. Mr Wang’s role as the “wire guy” indicates his crucial, albeit more indirect role as in Le – Mr Wang was clearly known to the group and relied upon. In this way, his role went beyond a simple courier as recognised in Williams.
[25] Ms Fitzgibbon submits there is no error in the Judge’s consideration of matters personal to Mr Wang. Ms Fitzgibbon recognises that Mr Wang is entitled to a discount for the time he spent on restrictive bail but submits that this is offset by the over- generous 25 percent discount given by the Judge for Mr Wang’s guilty pleas. These pleas were not entered at the first available opportunity. Mr Wang was initially charged on 28 June 2019; the pleas of guilty came nine months after Mr Wang’s first appearance on the charges.
[26] I interpolate that Mr Niven’s submission is that the full discount was justified because this was a very complex case. Mr Wang was entitled to wait for and evaluate Crown disclosure, and his pleas were entered shortly after the charge bargain was concluded which saw, to Mr Wang’s great benefit, the charge of participating in an organised criminal group being substituted with a money laundering charge. Further, Mr Wang’s co-offenders who pleaded guilty were given full discounts.
Discussion
The starting point
[27] Mr Niven refers me to quite a number of cases, which he submits demonstrate that Judge Paul’s three-year starting point was too high. They are:
(a)R v Khan:4 Mr Khan collected large amounts of cash from the sale of cocaine and delivered them to foreign exchange companies, which
4 R v Khan [2018] NZHC 3065.
would transfer them to a specified foreign bank account. Mr Khan was reckless as to where the money came from, but did not significantly benefit from the offending. He laundered approximately $330,000 over four months. Justice Peters adopted a starting point of two years and six months. Mr Niven suggests that Mr Khan was sentenced on the basis that he was on the border between actual knowledge and recklessness. I disagree. Justice Peters did evince some doubts about the agreed summary of facts which stated he was only reckless. However, her Honour specified that she sentenced Mr Khan on the basis that he was reckless.
(b)R v Williams:5 Mr Williams was a co-defendant of Mr Khan. Mr Williams knew that the money was from drug dealing, and handled a total of $480,000, but only laundered approximately $30,000. He was for the most part a courier for the money. Justice Peters settled on a starting point of two years and three months.
(c)R v Henry:6 Ms Henry used a false name to get a driver’s license. She then procured access to a safe under the false name. Another person stored approximately $300,000 in that safe. She made no personal gain, and indeed did not handle any money. Justice Whata adopted a starting point of two years and six months.
(d)R v Beckham and Taylor:7 Mr Beckham was convicted on charges of manufacturing and supplying methamphetamine. His wife, Ms Taylor, was sentenced on the basis that she was reckless in laundering a total of $150,000. Justice Andrews adopted a starting point of two years.
(e)R v Chase and Williams:8 Mr Chase was heavily involved in the distribution of a MDMA analogue. Mr Williams had an established role taking cash from the operation to a money remittance service and
5 R v Williams [2018] NZHC 2731.
6 R v Henry [2015] NZHC 1684.
7 R v Beckham and Taylor HC Auckland 12/8/2011 CRI-2008-404-29112.
8 R v Chase [2018] NZHC 1022.
arranging for it to be transferred to various foreign bank accounts. Towards the end of the operation Mr Williams handled some drugs himself. He sent a little more than a million dollars overseas in one tranche, and another $400,000 in a second. He was reckless as to the money’s origin. Justice Venning considered that a four-and-a-half year starting point would have been appropriate, except for the fact that Mr Williams was sentenced on the basis that he was reckless and received no significant personal gain. He adopted a starting point of three years and nine months.
(f)R v Wallace:9 Ms Wallace laundered more than $150,000 knowing it to be money derived from the drug manufacturing activities of her husband. The Court of Appeal upheld a starting point of between three- and-a-half and four years.
(g)R v Parao and Samuels:10 The offenders acted as couriers and custodians for significant sums of money in the upper five digits. Mr Parao was assessed as not being quite an assistant, but being wilfully blind to the origin of the money. Justice Moore considered an appropriate starting point to be two years and three months. Ms Samuels acted as a custodian for the money but did not actively transport it. A starting point of two years and one month was adopted for her.
(h)R v Daniels and Simpson:11 Mr Daniels had actual knowledge of the criminal origins of nearly $2.6 million that he laundered for an organised criminal group. A starting point of six years was adopted. Mr Simpson was a solicitor operating in that capacity. He was reckless as to the origins of approximately $3.3 million that he laundered. The Court adopted a starting point of four years and six months.
9 R v Wallace CA 415/98, 16/12/1998.
10 R v Parao and Samuels [2016] NZHC 1105.
11 R v Daniels and Simpson [2020] NZHC 275.
(i)R v Le:12 Ms Le was reckless as to the origin of over $1.2 million, which she acted as a courier for. She received no substantial financial benefit. The Judge adopted a starting point of four years.
[28] Mr Niven submits that the present case is most closely comparable to Williams,13 with some similarity to Khan,14 Henry,15 and Parao and Samuels.16 He submits that these cases all involve a simple courier, with the exception of Khan, which involves actual involvement in the laundering transactions. I consider, however, that there are substantial differences between Mr Wang’s case and those others. Mr Wang was not an incidental or merely reckless participant: he knew what he was doing, as Judge Paul found. Furthermore, Mr Wang was an integral part of the operation, as emphasised by his nickname of “the wire guy”. He repeatedly engaged in offending. I agree with Judge Paul’s assessment that it is implausible that Mr Wang received no benefit from his offending. I note the Court of Appeal’s dictum in R v Wallace:17
We accept the view expressed by the English Court of Criminal Appeal in R v Greenwood that those who launder money for drug dealers are nearly as culpable as those who actually participate in the dealing. They help the dealers avoid detection and in this way provide assistance in their activity. Depending upon the circumstances, they may not technically be parties to the principal crimes, and hence the need for a separate offence on the statute book, but they come very close to it. Sentences for money laundering should therefore bear a relationship to sentences for the particular principal offending and should be approached on a similar basis. The more serious the principal offending, the more serious the laundering. Where the criminal activity which is being concealed or otherwise assisted is of a less pernicious kind, the appropriate sentence for money laundering will be at a lesser level than it will be for laundering known by the offender to be related to very serious criminality, such as the present. In sentencing for drug dealing a primary factor is the deterrence of others who may be minded to do likewise. The personal circumstances of the particular offender are given comparatively little weight. So it must be for money laundering associated with drug dealing.
[29] That said, this offending is not as serious as that in cases like R v Chase and Williams, where the offender was fundamentally involved in the trafficking of drugs. The charge that Mr Wang participated in the organised criminal group was dropped.
12 R v Le [2018] NZHC 2199.
13 R v Williams [2018] NZHC 2731. A starting point of two years and three months was adopted.
14 R v Khan [2018] NZHC 306. A starting point of two years and six months was adopted.
15 R v Henry [2015] NZHC 1684. A starting point of two years and six months was adopted.
16 R v Parao and Samuels [2016] NZHC 1105. Starting points of two years and three months and two years and one month were adopted.
17 R v Wallace CA 415/98, 16/12/1998 at 8-9.
If I were sentencing Mr Wang afresh, I would consider his offending to be of a slightly lower seriousness than that in R v Le, taking into account the smaller sum laundered and Mr Wang’s knowledge of the offending. I would therefore have adopted a starting point around three and a half years. In this context, I do not consider Judge Paul’s three year starting point to be excessively high. It is within range, and indeed generous to Mr Wang.
Personal factors
[30] I have read the cultural report. I agree with Judge Paul that it does not raise any matter which should be met with a discrete discount. Mr Wang, who was on release parole for drug offending, chose to become involved in money laundering knowing that it was for an operation dealing in illegal drugs. Whatever the full extent of his motivation, part of it was financial gain.
Time spent in custody on recall
[31] I accept that where a person is recalled from parole to continue his sentence because further charges have been brought against him then some credit should be given if convictions are entered on those subsequent charges. Here, and counsel do not suggest it was inappropriate, Judge Paul simply offset the possible credit for time spent in custody on recall against what would otherwise be uplifts for Mr Wang’s previous offending and for offending while on release parole. I will not take a different view.
Restrictive bail conditions
[32] I agree there must be a discount for the approximately nine months Mr Wang spent on bail subject to a 24-hour curfew. There is no fixed method of calculating the credit to be given in such a situation. It depends on the circumstances. It is not, however, a “one for one” credit. In this case, the imposition of the 24-hour curfew would undoubtedly have been influenced by the charges he faced arising while he was on release parole. Accordingly, I would have allowed Mr Wang a discrete discount of around four-and-a-half months.
[33] I consider, however, that a full discount of 25 percent for the pleas of guilty was excessive. The evidence against Mr Wang on the two money laundering charges he faced from the beginning was strong. I accept that Mr Wang was most concerned with the charge of being a member of the organised criminal group and that he pleaded guilty to all of the charges once a charge bargain had been reached which substituted a third charge of money laundering for the more serious charge. But that does not mean that a full 25 percent discount was available.
[34] In my view, the Crown’s submission that a 15 percent discount was available is about right. On that basis, Mr Wang’s discount would have been 5.5 months as opposed to nine months.
[35] If I were to apply the discount of around 4.5 months that is available to Mr Wang to account for his restrictive bail conditions, the end sentence I would reach is two years and two months’ imprisonment. To allow the appeal and reduce Judge Paul’s sentence of two years and three months’ imprisonment to one of two years and two months’ imprisonment would be tinkering. Judge Paul’s end sentence is not manifestly excessive.
Home detention
[36] I record that even if, on my analysis, the proper end sentence were two years or less I would deny home detention. The points made by Mr Niven (which I reproduce at [21]) are outweighed by the seriousness of his offending and the fact that the offending occurred while Mr Wang was on release parole for earlier drug offending. There is little to show that Mr Wang has reformed. Indeed, he was assessed as having a medium risk of re-offending.
Decision
[37]The appeal is dismissed.
Brewer J
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