Yuen v R
[2015] NZCA 555
•18 November 2015 at 4.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA248/2015 [2015] NZCA 555 |
| BETWEEN | ANTHONY KOU FOI YUEN |
| AND | THE QUEEN |
| Hearing: | 9 November 2015 |
Court: | Kós, Fogarty and Mallon JJ |
Counsel: | C J Tennet for Appellant |
Judgment: | 18 November 2015 at 4.00 pm |
JUDGMENT OF THE COURT
AThe appeal against sentence is allowed in part.
BThe minimum period of imprisonment of four years is quashed, and a minimum period of imprisonment of three years and two months is substituted.
____________________________________________________________________
REASONS OF THE COURT
(Given by Kós J)
Following a sentence indication Mr Yuen pleaded guilty to four counts of importing ephedrine, a class B drug and precursor to methamphetamine. The amount involved was 60.779 kg, convertible to 12–18 kg of methamphetamine, worth some $6–18 million. Mr Yuen organised and provided addresses for the importation of packages of ephedrine. He would then deliver them to other persons. He said he expected to receive a cash payment of $3000 per package upon delivery.
Mr Yuen was sentenced by Judge Kiernan in the Auckland District Court to eight years’ imprisonment with a minimum non-parole period (MPI) of four years.[1]
[1]R v Yuen [2015] NZDC 9173.
He now appeals that sentence.
Sentencing indication
In her sentencing indication, the Judge said a starting point of 13 years was appropriate in light of the large scale commerciality and quantities involved in the operation, the harm that flows from methamphetamine, and the level of premeditation and organisation.[2] A discount of 25 per cent for a guilty plea would be given, and a further 10 per cent for youth, lack of previous convictions, and cooperation with authorities was indicated, but with the prospect of greater allowance still. The likely end sentence was expressed as a range: seven to nine and a half years, with a 50 per cent MPI.
Sentencing decision appealed
[2]R v Yuen DC Auckland CRI-2014-004-3909, 22 December 2014.
Mr Yuen pleaded guilty. He was sentenced in line with the indication: a 13 year starting point and an overall reduction of about 38 per cent for mitigating factors. That produced an eight year sentence and a four year (50 per cent) MPI was imposed.
Appeal
The grounds of the appeal are three: that the starting point was too high, the end sentence was unfairly disparate to that of his co‑offender, and an MPI should not have been imposed. Although Mr Yuen was sentenced in accordance with the sentencing indication he was given, his right of appeal remains.[3]
Issue 1: Was the starting point too high?
[3]Criminal Procedure Act 2011, s 245.
Mr Tennet notes that ephedrine was increased from a class C to class B controlled drug in 2011.[4] The guideline judgment for class B drugs is R v Wallace and Christie. It provides:[5]
… for commercial activity on a major scale the starting point before any allowance for mitigating factors for a principal offender will be in excess of 8 years and in the very bad cases up to 14 years, especially where repeat offending is involved. For major offending of this kind there will likely be numerous separate offences so that the 14-year maximum penalty will have little direct relevance to the total offending.
Mr Tennet submits a 13 year starting point was too high. The Judge should have considered whether a less restrictive outcome could have been imposed. The starting point did not reflect the low level of remuneration Mr Yuen received and his low level of involvement in the importation.
[4]Misuse of Drugs Amendment Act (No 2) 2011.
[5]R v Wallace and Christie [1999] 3 NZLR 159 (CA) at [30].
We are not however persuaded that the Judge erred in setting a starting point of 13 years. This was a large scale commercial operation. Mr Yuen was intimately and essentially involved in the importation of a very large quantity of drugs. Mr Yuen was not the mastermind of the operation. But his involvement was significant and indicates a strong degree of premeditation and organisation. The fact there were multiple importations (albeit in just a two month period) indicates a greater degree of culpability.[6]
[6]R v Adams [2008] NZCA 171 at [51].
The starting point adopted is in line with other decisions of this Court, notably Bi v R,[7] Cai v R[8] and R v Xie,[9] and the High Court decision in Tran v R.[10] These cases show that where the offending involves multiple instances of commercial importation of methamphetamine precursor substances, of this sort of volume, involving significant premeditation and organisation by an offender with a significant role, a starting point close to the statutory maximum of 14 years is entirely appropriate and should be expected.
Issue 2: Was there an unacceptable sentencing disparity?
[7]Bi v R [2014] NZCA 10 (67 kg pseudoephedrine imported, convertible to 13 kg of methamphetamine; the then maximum eight year punishment was taken as the starting point).
[8]Cai v R [2012] NZCA 293 (67 kg of ephedrine and pseudoephedrine imported; appellant had a significant role but was not the mastermind; the Court of Appeal endorsed a starting point of six and a half years, one and a half years below the then eight year maximum).
[9]R v Xie [2007] 2 NZLR 240 (CA) (23 kg of pseudoephedrine imported, convertible to 16 kg of methamphetamine, and supplying 12 kg of precursor material; appellant the mastermind; starting point increased from eight to 11 years on Solicitor-General appeal).
[10]R v Tran [2015] NZHC 1545 (importing 97 kg and supplying 19 kg of pseudoephedrine; appellant not mastermind but in a directory role; 18 year starting point).
An unacceptable sentencing disparity arises when a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would consider that something had gone wrong with the administration of justice.[11] But caution is needed. If the reason for the disparity is leniency in sentencing of the co-offender, rather than undue severity in sentencing of the appellant, the observer’s alarm may well be allayed. Only where it would not is there cause to intervene and contemplate reduction of the appellant’s sentence.
[11]MacFarlane v R [2012] NZCA 317 at [24].
In this case a co-offender Mr Zheng was sentenced to six and half years’ imprisonment with an MPI of two and a half years (i.e. 40 per cent). He was involved in three of the four importations that Mr Yuen was involved in — 40 kg of ephedrine convertible to 8–12 kg of methamphetamine. His involvement was slightly less extensive than that of Mr Yuen — he would check the tracking number of the packages, receive them and deliver onwards. He said, inconsistently, that he was to receive either $25,000 or $45,000 for each package. It will be recalled that Mr Yuen imported 60 kg and said he expected to receive $3,000 per package. As Mr Murray observed, that was self-reported. It is not necessarily to be taken as correct. Mr Tennet submits Mr Zheng’s rate of remuneration shows he was more extensively involved in planning operations than Mr Yuen. Therefore Mr Yuen’s sentence should have been the same or lower than that of Mr Zheng.
We do not think the disparity meets the requisite test for the following reasons. Mr Yuen imported 50 per cent more ephedrine than Mr Zheng, and was more actively involved. The difference in remuneration, even assuming it to be demonstrated, does not mean Mr Yuen is less culpable. It does not positively re‑order culpability on the importation organisational chain. The remuneration could only justify a difference if an inference is drawn that Mr Zheng was actually a ringleader. This inference is unwarranted speculation given Mr Zheng was only charged with three rather than four importations, suggesting a lesser role.
Mr Zheng may have been fortunate in his sentencing; Mr Yuen has not been unfortunate.
Issue 3: Was the Judge correct to impose an MPI of 50 per cent?
An MPI may be imposed if spending one-third of the sentence in prison would be inadequate to hold the offender accountable for the harm, denounce the conduct, deter the offender and other persons, and protect the community from the offender.[12]
[12]Sentencing Act 2002, s 86.
Mr Tennet submits an MPI should not have been imposed on Mr Yuen because he pleaded guilty and assisted authorities. It is unlikely he will be released on parole at his first hearing. He repeats his submission on disparity — Mr Zheng received an MPI of 40 per cent; Mr Yuen’s MPI was 50 per cent.
We do not accept that submission. We do not consider the Judge erred in imposing an MPI to denounce the offending involved and to deter like offending.[13] The sheer commercial scale of importation, its repeated nature, and the potential harm to the community had conversion to methamphetamine been effected, make it an appropriate response in this case.
[13]Sentencing Act 2002, s 86(2)(b) and (c).
The more difficult question is the duration of the MPI. Mr Yuen received 50 per cent; Mr Zheng 40 per cent. The disparity is not explained in the Judge’s sentencing notes. The disparity may, as the Crown submits, reflect Mr Yuen’s increased involvement in the offending. On the other hand, that distinction is already accounted for in the different sentence starting point. What is more, Mr Yuen qualified for very substantial discounts for guilty plea, youth,[14] lack of previous convictions and cooperation.
[14]He was 24 years of age at the time of offending.
In these circumstances we are satisfied that an MPI of 40 per cent of the sentence is adequate for the purposes of s 86 in the case of Mr Yuen also. The Parole Board will determine when it is appropriate to release Mr Yuen from incarceration. That determination will reflect in a more reliable, ex‑post facto way proven remorse and rehabilitation. Release may or may not coincide with the MPI.
Result
The appeal against sentence is allowed in part.
The minimum period of imprisonment of four years is quashed, and a minimum period of imprisonment of three years and two months is substituted.
Solicitors:
Crown Law Office, Wellington for Respondent