Wen v Police

[2014] NZHC 2085

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-60 [2014] NZHC 2085

BETWEEN

BO SHU WEN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	1 September 2014
Counsel:	MN Pecotic for Appellant MJ Hammer for Respondent
Judgment:	1 September 2014

JUDGMENT OF BREWER J

Solicitors/Counsel:               Maria Pecotic (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

WEN v POLICE [2014] NZHC 2085 [1 September 2014]

Introduction

[1]      Mr Wen appeals the sentence imposed on him by Judge CJ Field in the District Court at Auckland on 13 February 2014.1    The sentence followed pleas of guilty to one charge of importing pseudoephedrine into New Zealand and one charge of possession of pseudoephedrine for the purpose of supply.  The Judge adopted a starting point of seven years’ imprisonment, made an allowance of 25 per cent for co-operation with authorities and a further allowance of 25 per cent for the pleas of

guilty.    The  end  sentence  was  three  years  and  nine  months’ imprisonment.   A

minimum period of imprisonment of two years was imposed.

Issues

[2]      The  overall  issue  on  this  appeal  is  whether  the  end  sentence  is  clearly excessive or inadequate or inappropriate.2   It is subdivided as follows:

(a)       Is  the  Judge’s  starting  point  excessive  in  comparison  with  those adopted for his co-offenders?

(b)Was insufficient credit given to Mr Wen for his co-operation with authorities?

(c)       Should the starting point be discounted because of Mr Wen’s personal

circumstances?

(d)      Was the minimum period of imprisonment excessive?

Is the Judge’s starting point excessive in comparison with those adopted for his co-offenders?

[3]      The charges to which Mr Wen pleaded guilty relate to the importation of

91 kilograms  of  Contac  NT  concealed  within  a  water  filter.    The  quantity  of pseudoephedrine involved is 30.94 kilograms.   A co-offender, Mr Xue, recruited Mr Wen  to  locate  a  place  in  which  the  water  filter  could  be  kept  and  opened.

Mr Wen did this, he liaised with Customs officials and arranged for a transport company to deliver the water filter.  Mr Wen was also to purchase tools to open the water filter and was told that his reward for doing these things would be $60,000. Mr Wen arranged for his wife to rent a storage unit to house the Contac NT once it had been extracted from the water filter.  He bought tools with which to open the water  filter  but  did  not  do  so  before  his  arrest.    He  did  not  know  how  much Contac NT was in the water filter and he was not involved with organising for the water filter to be shipped to New Zealand.

[4]      Ms Pecotic, for Mr Wen, argues that the Judge’s starting point of seven years’ imprisonment is too high because that was the starting point adopted by another District Court Judge for the sentencing of Mr Xue3  and the sentencing of another main player in the importation, a Mr Lin.  This means that there has been no real recognition of Mr Wen’s lower degree of culpability.   In Ms Pecotic’s submission, Mr Wen is a third tier offender, being merely a link in the chain of offending rather than a crucial player whose involvement was of critical importance.   Ms Pecotic’s submission is that a starting point of around five-and-a-half years is justified.

[5]      I disagree with Ms Pecotic’s submission for two reasons.  First, in my view, the start point for Mr Wen of seven years was inadequate.  A very recent decision of the Court of Appeal, R v Wang, makes this clear.4

[6]      That case concerned the importation of an oven containing 35.32 kilograms of Contac NT.   This amounted to 11.2 kilograms of pseudoephedrine.   Mr Wang became involved by happenstance.  It was planned for the oven to be delivered to another person’s apartment, but it was too large to fit through the door.  Mr Wang was then recruited to provide an alternative delivery address and to secure the oven overnight.   He knew that the oven contained drugs but had no knowledge of the quantity.

[7]      In the High Court, the sentencing Judge adopted a starting point of five years

six months’ imprisonment.  The Crown appealed.  The Court of Appeal’s analysis

started with the leading Class B drug offending case of R v Wallace.5   The Court of Appeal held that Mr Wang’s role was more than that of the lowest level of offender. It  considered  that  the  case  fell  clearly within  the  band  of  serious  offending  in Wallace concerning commercial activity on a major scale.  That created a range of between eight and 14 years’ imprisonment, and for Mr Wang a starting point of eight years was the lowest available.  He was the means by which the importation of the oven could be completed, its contents stored and held ready to be passed on to the distributors.   He thus played a crucial role in introducing a large amount of the Class B controlled drug into the market.

[8]      I  consider  Mr  Wen’s  culpability  to  be  significantly  more  than  that  of Mr Wang.  He dealt with Customs, arranged for premises, arranged for the delivery of the water filter to the premises, arranged for a storage unit to be rented to contain the Contac NT once it was extracted from the water filter, and he obtained the tools with  which  he  intended  to  open  the  water  filter.    He  did  all  of  this  with  the expectation of a substantial financial reward, $60,000.  In my view, he was a crucial player and an appropriate starting point was nine to 10 years’ imprisonment.

[9]      The  second  reason  is  that  the  law  relating  to  consistency  of  sentencing between co-offenders does not operate to reduce an inadequate sentence to a manifestly inadequate sentence because co-offenders received manifestly inadequate sentences.  That would undermine public confidence in the administration of justice by deliberately compounding the error.

[10]     I do not understand why Mr Xue received a starting point of seven years’ imprisonment.  On the authority of R v Wallace, I think a starting point of 12 years’ imprisonment would not have been excessive.   In Wang, which involved a considerably smaller amount of the drug, the Court of Appeal commented that it had no doubt that a prime mover or major player would have attracted a starting point of

around 12 years’ imprisonment.

5      R v Wallace [1999] 3 NZLR 159 (CA).

[11]     In Frank v R,6  the Court of Appeal refused to lower Mr Frank’s sentence where his co-offenders received manifestly inadequate sentences.   The Court of Appeal said:7

The manifestly inadequate sentences imposed on Jamie Frank and John Blair leave a disturbing disparity in sentences.   However, disparity alone, even gross disparity, will not by itself justify a reduction in sentence.   An adjustment should not be made unless a reasonably minded independent observer, aware of all the circumstances of the offence and of the offenders, would  think  that  something  had  gone  wrong  with  the  administration  of justice.   This Court has taken the view that to reduce a proper sentence imposed on one offender in order to bring it into line with an inadequate sentence imposed on a co-offender would itself cause public concern at the administration of justice.

[12]     With respect, I have no difficulty adopting this dicta.  Judge Field was right to comment that the sentence given to the co-offenders was their good fortune and not to be influenced by it.

[13]     Ms Pecotic has placed particular reliance on the judgment of Duffy J in Folau v Police.8    But the facts of that case are very different.  The careful discussion by Duffy J  of  the  relevant  Court  of Appeal  decisions  is  to  the  effect  I  have  just enunciated.

[14]     The answer to this issue is that the starting point adopted for Mr Wen was not excessive when compared to that of his co-offenders.

Was insufficient credit given to Mr Wen for his co-operation with authorities?

[15]     Ms Pecotic submits that Mr Wen provided significant assistance to the Police on two separate and distinct occasions.  She submits that each occasion justifies a significant and separate discount.

[16]     When Mr Wen was arrested, he immediately offered assistance to catch the main offenders. At the request of the Police, he telephoned Mr Xue (and a Mr Deng) in China and asked them to come back to New Zealand.  Mr Xue returned and was

arrested.  Later, Mr Wen assisted the Police with identification procedures.

6      Frank v R [2013] NZCA 447.

7 At [36].

8      Folau v Police HC Auckland CRI-2010-404-175, 11 August 2010.

[17]     After Mr Wen pleaded guilty, he provided a full statement to the Police on the understanding that he would give evidence in Court against Mr Xue.  This was in the face of threats received by Mr Wen and his wife as to what would happen should Mr Wen  give  evidence.    As  it  happens,  because  of  the  guilty  pleas  of  the  co- offenders, Mr Wen was never called upon to give evidence.

[18]     Ms  Pecotic  submits  that  Mr  Wen  is  entitled  to  the  maximum  discount discussed by the Court of Appeal in R v Hadfield of 60 per cent,9 because each offer of assistance should attract a discount of 30 per cent.

[19]     I  agree  with  Ms  Pecotic  that  Mr  Wen  is  entitled  to  a  discount  for  his assistance to the Police.  However, Hadfield made it clear that the maximum of 60 per cent encompasses all discounts from the starting point, including personal circumstances and guilty pleas.

[20]     In this case, Judge Field gave Mr Wen a 50 per cent discount for assistance to the authorities and his guilty pleas combined.  While he could have given up to 60 per cent, the Judge did not make an error in principle by exercising his discretion to give a 50 per cent discount in total.  The factual situations discussed by the Court of Appeal in Hadfield do not lead me to the view that the Judge erred in deciding that the level of assistance provided, overall, by Mr Wen was not at the absolute upper end of the range of such assistance.

[21]     The  answer  to  the  question  of  whether  insufficient  credit  was  given  to

Mr Wen under this heading is “no”.

Should  the  starting  point  be  discounted  because  of  Mr  Wen’s  personal

circumstances?

[22]     At the time of Mr Wen’s sentencing his father was terminally ill (and has since died).    For cultural  and  compassionate reasons,  Mr Wen  was  granted  bail pending the hearing of this appeal so he could carry out his cultural obligations to

honour and respect his father.

9      R v Hadfield CA337/06, 14 December 2006.

[23]     Ms Pecotic submits that the Judge should have given recognition to Mr Wen’s father’s condition and to the fact that Mr Wen’s wife was due to have their fourth child.  Mr Wen’s mother also requires support and now Mr Wen’s wife is ill and a child suffers from asthma.

[24]     I do not consider the Judge made an error by not giving a discount for Mr Wen’s personal circumstances.  Nor should I change the sentence because of the further deterioration in his family’s situation.  The Court of Appeal in Wallace made it clear that personal circumstances defer to the need for deterrence in the area of dealing in serious drugs.10    This was emphasised by the Court of Appeal in Wang where the sentencing Judge had allowed a discount of one year for mitigating factors personal to Mr Wang, mainly his unblemished record.  The Court of Appeal said this was contrary to principle.  It considered that no discount should have been given but,

since this was a Crown appeal, allowed a six month discount to stand.  Here, because of previous convictions, Mr Wen cannot claim good character.  Nor is his case in the same category as R v Jarden,11 where a discount of six months was given to reflect the exceptional personal circumstances of Mr Jarden’s partner taking her own life and  the life of  their unborn child  immediately prior  to  trial.    In  that  case,  the Supreme Court noted that it will be rare for personal circumstances to be taken into account in drug offending.12

[25]     No further credit is due for Mr Wen’s post-sentence release on bail.  That was an indulgence on compassionate grounds.

Was the minimum period of imprisonment excessive?

[26]     Ms Pecotic relies on the dicta of the Court of Appeal in Tuau v R, where the

Court said:13

It is a matter for judicial judgment whether a minimum non-parole period is required to meet any or all of the relevant sentencing goals set out in s 86(2) of the Sentencing Act.   It is for the sentencing Judge to review the circumstances as a whole and to apply the statutory test.  In particular, the “central consideration must be culpability which necessarily is increased by

10     R v Wallace, above n 5, at [25].

11     R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612.

12 At [12].

13     Tuau v R [2013] NZCA 623 at [52](b).

matters  such  as  unusual  callousness,  extreme  violence,  vulnerable  or

multiple victims and serious actual or intended consequences”.

[27]     Ms Pecotic’s submission is that Mr Wen’s case is not one which required the

Court to impose a minimum non parole period for these matters.

[28]     The difficulty with this submission is that in cases of very serious drug offending, a minimum period of imprisonment is almost inevitable.14    The point is that deterrence is to be emphasised and serious drug dealing does involve vulnerable and multiple victims as well as serious actual and intended consequences.

[29]     Ms Pecotic would very much like to see her client remain in the community. The overall purpose of her submission has been to persuade me that  Mr Wen’s situation can be addressed by a sentence of home detention.  Of course Ms Pecotic has to submit that any term of minimum period of imprisonment is unjustified. Ms Pecotic has real concerns for the safety of her client if he returns to prison. Apparently his statement to the Police is being passed around the prison and he has fears of retaliation. But that is for the prison authorities, and I cannot change the law.

[30]     The answer to the issue of whether the imposition of the minimum term of imprisonment was excessive in the particular circumstances of this case is, “no”.

Decision

[31]     It follows that I conclude that the sentence was not clearly excessive.   I conclude, to the contrary, that it was clearly inadequate.  In my view, if the correct starting point had been adopted, Mr Wen would have received a sentence of at least four years six months, with a minimum period of two years three months’ imprisonment.

[32]     I  have  considered  whether  I  should  exercise  my  discretion  to  increase Mr Wen’s sentence on this appeal.  I have decided not to.  There has been no cross- appeal by the Crown in this case and Ms Hammer has advised me that the Crown is

not appealing the sentences of the co-offenders.   I do not want to create a real

14     R v Aram [2007] NZCA 328 at [78].

disparity  between  Mr  Wen’s  sentence  and  those  of  the  co-offenders.    I  have expressed myself strongly in this judgment so that in future sentencings the cases of Mr Wen,  Mr Xue and  Mr  Lin  will  not  be used  to  undermine the  clear line of authority established by the Court of Appeal for serious Class B drug offending.

[33]     The appeal is dismissed.

Brewer J