Yu v The the Queen
[2022] NZCA 382
•17 August 2022 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA44/2022 [2022] NZCA 382 |
| BETWEEN | CHIU TAN YU |
| AND | THE QUEEN |
| Hearing: | 13 July 2022 |
Court: | Miller, Lang and Cull JJ |
Counsel: | S Brickell for Appellant |
Judgment: | 17 August 2022 at 11.30 am |
JUDGMENT OF THE COURT
AThe application for an extension of time is granted.
BThe appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Lang J)
Mr Yu pleaded guilty in the High Court to one charge of importing methamphetamine.[1] On 9 October 2020, Palmer J sentenced Mr Yu to 15 years, six months’ imprisonment.[2] The Judge also made an order under s 86 of the Sentencing Act 2002 (the Act) requiring Mr Yu to serve a minimum term of seven years before being eligible to apply for parole.[3]
[1]Misuse of Drugs Act 1975, s 6(1)(a).
[2]R v Yu [2020] NZHC 2661 at [24].
[3]At [24].
Mr Yu appeals against sentence.[4] He contends the Judge adopted a starting point that was too high, and then failed to give him adequate discounts for mitigating factors. He says this resulted in an end sentence that was manifestly excessive. He also contends the Judge should not have imposed a minimum term of imprisonment.
[4]Criminal Procedure Act 2011, s 229.
Mr Yu’s notice of appeal was filed over one year out of time. He explained his delay by pointing to difficulties finding a lawyer from prison and his limited English language ability. The Crown does not oppose the application being granted and does not point to any prejudice from the delay. Accordingly, we grant the extension of time.
The offending
Mr Yu pleaded guilty on the basis of an agreed summary of facts. This recorded that he is a citizen of Taiwan. He arrived in New Zealand with several associates on a three-month visitor’s visa on 11 January 2019.
Six days later, on 17 January 2019, a shipping container arrived in New Zealand from Long Beach, California. This was found to contain three electric golf carts. The consignees were described as a Ms Goddard and a Mr Lee. The golf carts were inspected by Customs officials and two pistols were found concealed within them. In addition, each golf cart contained modified batteries in which Customs officials found vacuum sealed plastic bags containing methamphetamine.
In total, Customs officials removed 110 kilograms of methamphetamine from the batteries and replaced it with a placebo substitute. The Crown estimates the value of the methamphetamine at $17.6 million if sold on a wholesale basis by the kilogram.
Between 31 January and 13 February 2019, Mr Yu obtained cash from his co‑defendant, a Mr Sun, and used this to pay outstanding storage fees owing on the container together with other expenses. He also inspected the container and photographed the golf carts.
By this stage Mr Yu had rented a residential property in Glendene. The freight company that had handled the importation of the container was then advised that the container should be delivered to the Glendene address. This occurred on 15 February 2019. On the previous day Mr Yu had bought a quantity of tools and other equipment from a hardware store.
Approximately 15 minutes after the golf carts had been delivered to the Glendene address Mr Yu arrived and began removing the batteries from the carts. He removed a total of 24 batteries and placed these in his vehicle. Later the same day he delivered them to a storage unit in Avondale that Mr Sun had arranged to rent for approximately one month. Over the next week Mr Yu and Mr Sun engaged in coded communications regarding the withdrawal of cash that was to be given to Mr Yu.
On 22 February 2019 Mr Yu removed three of the batteries from the storage unit and took them to an address in Flat Bush where he had rented a room the previous day. He also took with him the items he had purchased from the hardware store. Later that day whilst Mr Yu was still at the Flat Bush address, he had a conversation on his cellphone with Mr Lee, who is acknowledged to have been the mastermind behind the importation of the methamphetamine. Mr Lee asked if he had finished yet and Mr Yu told him he was “just sorting it now”.
At 9.40 pm the same day the police and Customs officials executed a search warrant at the Flat Bush address. There they discovered Mr Yu with two intact batteries, together with a third battery that he had opened. He was in the process of removing the placebo material and packaging it into plastic zip lock bags. Inside his rented vehicle they discovered the casing for the third battery and a money counting machine.
The sentence
There was no dispute that Mr Yu’s offending fell within Band 5 identified in Zhang v R, which applies to offending involving more than two kilograms of methamphetamine.[5] Offending within this band will attract a starting point of between ten years and life imprisonment.[6] Placement within bands will be affected by whether the role of the offender is categorised as being lesser, significant or leading.[7]
[5]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].
[6]At [125].
[7]At [126].
The Judge considered Mr Yu’s offending fell towards the lower end of the significant category. He identified the following factors as justifying a starting point of 22 years’ imprisonment:[8]
[14] Mr Yu, I consider you were aware of the scale of the operation and you performed a significant operational role, but you were under the direction of others and did not direct others yourself. I do not accept you would necessarily have been involved in sale of the methamphetamine. But you were more than just a willing worker. You paid fees, rented the storage unit and property, transported the golf carts, obtained the equipment to extract the methamphetamine and extracted it. There is no evidence you were involved through coercion or motivated by addiction but no evidence you expected to share in the commercial profits. It follows that your role was at the lower‑level of a significant role in terms of the Zhang categories. I consider it lies somewhere between Mr Yip’s more significant role (with regard to significantly more methamphetamine), and the roles of Mr Chiang, Mr Tan and Mr Tran.[9] Accordingly, I consider a starting point of 22 years’ imprisonment is appropriate.
(Footnote added.)
[8]R v Yu, above n 2.
[9]In this context the Judge was referring to the starting point selected in Zhang v R, above n 5, at [300] for Mr Yip (23 years’ imprisonment) and to starting points selected for Mr Tran (21 years’ imprisonment) in R v Tran [2020] NZHC 2633 and for Mr Chiu (26 and a half years’ imprisonment’), Mr Chiang and Mr Tan (21 years’ imprisonment) in R v Leung [2019] NZHC 3299.
The Judge then applied a discount of two years, or just under ten per cent, to reflect mitigating factors personal to Mr Yu. These included lack of previous convictions, the impact on him of serving a prison sentence in a foreign country and his expression of remorse.[10] He applied a further discount of four and a half years, or approximately 20 per cent, to reflect the guilty plea.[11] This resulted in the end sentence of 15 years, six months’ imprisonment.[12]
[10]R v Yu, above n 2, at [18].
[11]At [19].
[12]At [20].
The Judge also considered that s 86 of the Sentencing Act was engaged. He ordered Mr Yu to serve a minimum term of imprisonment of seven years, or approximately 45 per cent of the sentence, before being eligible for parole.[13] In this context the Judge observed:
[23] In Zhang, where the end sentence [for Mr Zhang] was eight years and six months’ imprisonment, the Court of Appeal upheld a minimum period of imprisonment of 50 per cent of the end sentence. The Court said the imposition of a lengthy minimum period should be reserved for cases involving “significant commercial dealing”. I consider this is such a case and that release after around five years would be insufficient to denounce and hold you accountable for your offending. I impose a minimum period of imprisonment of seven years or around 45 per cent of the end sentence.
(Footnotes omitted.)
Grounds of appeal
[13]At [23].
On Mr Yu’s behalf Mr Brickell contends the Judge erred in selecting a starting point of 22 years’ imprisonment. He contends an appropriate starting point would have been 19 to 20 years’ imprisonment.
Mr Brickell also submits the Judge ought to have provided Mr Yu with a greater discount than ten per cent to reflect his previous good character, his prospects of rehabilitation and his low risk of reoffending. He says the Judge should also have applied a discount of at least five per cent to reflect the hardship Mr Yu will suffer as a foreign national serving a lengthy sentence of imprisonment in New Zealand. Finally, he says a further reduction of five per cent would have been appropriate to reflect Mr Yu’s remorse. Although he does not consider it generous, Mr Brickell does not challenge the discount of 20 per cent the Judge applied to reflect the guilty plea.
Starting point
Mr Brickell contends the Judge failed to give adequate recognition to the fact that Mr Yu had a limited operational role in the organisation that imported the methamphetamine. He says that both Mr Lee and Mr Sun were above Mr Yu in the hierarchy of the organisation, and that the Judge erred in categorising his role as falling within the lower end of the significant category. He contends Mr Yu’s role should be classified as falling within the “lesser” category.
In this context Mr Brickell points out that Mr Yu had no influence on those above him in the hierarchy. He therefore performed no management function within the organisation. Furthermore, although he must have had some awareness of the scale of the operation, there was nothing to suggest he knew the quantity of the drugs being imported.
Mr Brickell also points out that, as is evident from the passage set out above at [13], the Judge was influenced by the starting point adopted at first instance in R v Tran.[14] Mr Brickell submits that the offender in that case performed functions comparable to those undertaken by Mr Yu. The Judge at first instance had selected a starting point of 21 years’ imprisonment for Mr Tran. Upon appeal, however, this Court held that the starting point should have been no more than 19 years’ imprisonment.[15] Mr Brickell contends that the starting point to be taken for Mr Yu’s offending should also be around that level.
[14]R v Tran, above n 9.
[15]Tran v R [2021] NZCA 464 at [42].
Mr Brickell also submits Mr Yu received little by way of financial gain in return for his efforts. He points out that the summary of facts discloses that he was given relatively small cash sums by Mr Sun and/or Mr Lee. We do not accept this submission because we consider it likely that the sums Mr Yu was given in New Zealand were intended to be used to pay operational expenses such as rental and storage fees. Any financial reward he was to receive was likely to be paid upon his return to Taiwan and would no doubt have been commensurate with the level of risk he perceived he was taking.
Nor do we consider the fact that this Court reduced the starting point for Mr Tran’s offending from 21 years to 19 years’ imprisonment to be of any relevance for present purposes. That decision was driven by the fact that a starting point of 21 years’ imprisonment had also been selected for a Mr Navarro, who was higher up in the organisation for whom Mr Tran worked. Mr Navarro had been sentenced after Mr Tran. The focus in Mr Tran’s appeal was therefore on the appropriateness of the starting point selected for him in comparison to that subsequently selected for Mr Navarro.[16] The decision does not assist in terms of sentencing levels generally.
[16]At [39]–[42].
We accept, as does the Crown, that the mastermind of this operation was Mr Lee. Mr Yu was obviously significantly lower than him within the hierarchy of the organisation. However, we do not accept Mr Brickell’s submission that Mr Yu was below Mr Sun in terms of seniority within the organisation.[17] As the Crown submits, and the agreed summary of facts records, both men played different and complementary roles in the organisation.
[17]Mr Sun went to trial and was acquitted on the charge of importing methamphetamine. He defended the charge on the basis that he had no knowledge methamphetamine was being imported.
Mr Sun was Mr Lee’s “man on the ground” in the sense that he was resident in New Zealand and spoke English. He also had access to a bank account. He therefore performed important roles such as arranging for the storage unit to be rented and withdrawing cash from his bank account to meet storage and other costs.
Mr Yu played a different, and in our view more significant, role than that performed by Mr Sun. He was entrusted with the arrangements relating to the delivery and storage of the methamphetamine. As Mr Brickell acknowledges, Mr Yu’s position went well beyond that of a mere “catcher”, whose sole task is to take delivery of drugs and then pass them on to others, thereby protecting those higher up in the organisation. He was responsible for renting the addresses at Glendene and Flat Bush and performed an integral role in arranging for the delivery of the golf carts and the removal of the batteries from them. He then delivered the batteries to the place at which they were to be stored. Thereafter he was also responsible for removing the methamphetamine from the batteries and packaging it into quantities suitable for distribution. In addition, he was in possession of a money counting machine that was plainly intended for use by those who were to distribute the methamphetamine.
The fact that Mr Yu did not have a managerial role meant he did not fall within the leading category or at the upper end of the significant category. However, the important role that he played in this particular organisation satisfies us the Judge was correct to classify it as falling at the lower end of the significant category, thereby justifying a starting point of 22 years’ imprisonment.
This ground of appeal fails as a result.
Discount for mitigating factors
As we have already observed, the Judge applied a discount of two years, or approximately ten per cent, to reflect mitigating factors personal to Mr Yu. This was in accordance with the level of discount Mr Yu’s counsel had submitted was appropriate at the time of sentencing. Mr Brickell now contends the Judge ought to have applied discounts totalling 25 per cent to reflect these factors.
We acknowledge that another Judge may have applied a discount greater than ten per cent to reflect these factors. However, this does not mean the Judge’s approach was in error. Mr Yu came to New Zealand for the express purpose of committing a very serious crime. He undoubtedly did so for commercial gain even though this cannot be quantified because it is likely he was to be paid outside New Zealand.
Furthermore, Mr Yu undoubtedly knew that, if apprehended, he would receive a substantial sentence of imprisonment that he would be required to serve in a foreign country. Given the seriousness of his offending this factor can be given limited weight. Likewise the prospects of rehabilitation and previous good character. Furthermore, the extent to which remorse should attract a discount is very much a matter of sentencing discretion. Viewed in this light we do not accept the Judge erred by failing to provide a greater discount to reflect mitigating factors personal to Mr Yu.
Minimum term of imprisonment
Mr Brickell points out that the Judge made no reference to Mr Yu’s personal circumstances and their relevance to the imposition of a minimum term of imprisonment. He submits that the brief reasons given by the Judge for imposing a minimum term in the present case leave the impression it was imposed mechanistically and without considering all relevant factors.
Mr Brickell also criticises the Judge’s reliance on the fact that this Court elected to impose a minimum term of 50 per cent for Mr Zhang in Zhang. He says the circumstances of that case are very different in that Mr Zhang was the only “man on the ground” in New Zealand and therefore played an important operational role in the importation for which he was convicted. Mr Brickell submits the circumstances of the present case are different because Mr Sun also performed that function.
In addition, Mr Brickell points out that this Court quashed the minimum terms of imprisonment imposed on Mr Navarro and Mr Tran for offending that he says was comparable to that of Mr Yu. In that case the Court considered the lengthy periods of time the appellants would be required to serve before being eligible for parole were sufficient to denounce, and hold them accountable for, their offending.[18] Furthermore, there was no need to impose a minimum term to deter them from offending in a similar way in the future or to protect the community from the risk of further offending by them.[19]
[18]Tran v R, above n 15, at [48], [49] and [55].
[19]At [50] and [51].
The only principle under s 86(2) that favoured the imposition of a minimum term in Tran was the need to deter others from offending in a similar way in the future.[20] The Court considered this factor was outweighed by the other factors that pointed against that outcome.[21] Mr Brickell submits that the same factors apply in the case of Mr Yu. He contends that any need for general deterrence is outweighed by other considerations including Mr Yu’s lack of previous convictions, his expressions of remorse and low risk of further offending.
[20]At [50] and [52].
[21]At [55].
As this Court noted in Tran,[22] minimum terms of imprisonment have recently been quashed when the circumstances of appellants have fallen into one of three categories:
(a)those who are young and with good prospects of rehabilitation;[23]
(b)those who have a low likelihood of reoffending;[24] and
(c)those whose personal circumstances weigh against the imposition of a minimum term.[25]
[22]At [54].
[23]At [54], citing Fangupo v R [2020] NZCA 484.
[24]At [54], citing Prasad v R [2020] NZCA 483
[25]At [54], citing Tang v R [2021] NZCA 266.
However, this Court has also recently emphasised that minimum terms of imprisonment remain appropriate in cases involving very serious Class A drug offending. In Cavallo v R, the sentencing Judge did not impose minimum terms of imprisonment for the appellants even though they had played leading or significant roles in the importation of between 46 and 76 kilograms of cocaine.[26] This Court observed:
[88] We record our joint view that, this being a case of very serious and substantial commercial importation of Class A drugs, minimum periods of imprisonment would have been an appropriate response. The appellants here are fortunate in that the Judge saw fit not to follow that practice, and the Solicitor-General saw fit not to appeal that decision.
[26]Cavallo v R [2022] NZCA 276 (footnote omitted).
We accept that Mr Yu has not previously appeared before the courts and at 39 years of age his prospects of rehabilitation are likely to be good. However, the quantity of methamphetamine that he assisted to import is significantly greater than was the case in Cavallo. We therefore consider the need to deter others from engaging in similar conduct in the future to be the dominant factor in the present case. It outweighs Mr Yu’s personal circumstances by a considerable margin. The positive features of Mr Yu’s personal circumstances are adequately recognised by the fact that the Judge imposed a minimum term less than that which might otherwise have been imposed given the seriousness of the offending.
Result
The application for an extension of time is granted.
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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