Zhou v The Queen
[2020] NZCA 278
•9 July 2020 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA89/2020 [2020] NZCA 278 |
| BETWEEN | SUI JUN ZHOU |
| AND | THE QUEEN |
| Hearing: | 23 June 2020 |
Court: | Gilbert, Ellis and Katz JJ |
Counsel: | J D Lucas for Appellant |
Judgment: | 9 July 2020 at 9.30 am |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ellis J)
Between April 2014 and May 2016, Mr Zhou — along with his co-offenders Ms He, Mr Miao, and Mr Fu — were engaged in a commercial-scale operation for the distribution and supply of synthetic cannabis in Christchurch. The quantities of involved (173 kilograms were found in their possession on the day of Mr Zhou and Mr Miao’s arrest) made it by far the biggest such operation ever uncovered in this country.[1]
[1]The biggest previous operation involved 2.5 kilograms.
On 28 November 2019, Judge O’Driscoll sentenced Ms He to 28 months’ imprisonment, Mr Zhou to 26 months’ imprisonment, and Mr Miao to eight months’ home detention and 250 hours community work.[2]
[2]R v He [2019] NZDC 24130.
Mr Zhou now appeals his sentence. In essence he says that, given their respective roles in the operation, his sentence should have been more than two months lower than Ms He’s. He says that the appropriate sentence would be at or below two years’ imprisonment and that home detention then can, and should, be substituted.
So, for present purposes, we are only concerned with the sentences imposed on Mr Zhou and Ms He.
Mr Zhou filed his appeal approximately one month out of time. There is no prejudice and the Crown does not oppose an extension of time being granted. We accordingly grant an extension of time to appeal.
District Court decision
Judge O’Driscoll (who had presided over the partial trial) sentenced Mr Zhou, Ms He, and Mr Miao together. He began by noting that the group’s offending was on a commercial-scale, involved significant amounts of cash and substance, occurred over a two-year period, and was — by far — the largest synthetic cannabis case brought before New Zealand courts.[3] The Judge also observed that synthetic cannabis has only recently been made illegal in New Zealand and that the maximum penalty for its supply is two years’ imprisonment[4] — considerably less than the maximum penalty for the supply of cannabis.[5]
[3]At [19].
[4]Psychoactive Substances Act 2013, s 70(3)(a).
[5]R v He, above n 2, at [20].
The Judge said that the purpose of the sentence was to denounce the offending and to hold the defendants accountable, relative to their respective culpability. He noted that imprisonment is not necessarily an effective deterrent for drug offenders.[6]
Ms He
[6]At [26], referring to Palmer J’s comments in R v Wellington [2018] NZHC 2196 at [5]–[9].
The Judge recorded that, on day nine of the trial, Ms He pleaded guilty to two charges under s 70 of the Psychoactive Substances Act 2013, namely selling and/or supplying a non-approved psychoactive substance and possession for supply of a non‑approved psychoactive substance.[7] Although not clear from the notes themselves, reference to the amended Crown Summary of Facts (SOF) makes it clear that these two charges were:
(a)Charge 5, which related to sales of the drug but refers to no specific quantities (or revenue).
(b)Charge 13, which was a combined charge relating to the drugs found at Ms He’s Sockburn dairy on two occasions.[8] The quantities involved totalled 452 g.
[7]At [6]. Ms He was discharged under s 147 of the Criminal Procedure Act 2011 on the remaining charges.
[8]By “combined” we mean it was an amalgamation of what had formerly been two separate charges.
Later, the Judge said:
[27] Ms He, as I have said, the Crown’s position regarding you is that you are the ringleader or the principle [sic] offender in the distribution network. The Crown have asked me to impose the maximum penalty in respect of both charges, that is two years’ imprisonment on each charge. The Crown have relied on the number of transactions that were conducted to support that starting point.
[28] On the termination date of the operation, namely 11 May, the police located 173 kilograms of synthetic cannabis which the Crown say was involved and was available and intended for sale and distribution into the community.
[29] The Crown says that your offending is in the category of being in the most serious of cases. The Crown say that you continued to offend after the termination of the operation. The Crown says that you have traded in synthetic cannabis in the vicinity of $3.5 to $4.6 million.
The Judge recorded that Ms He’s offending was serious and that her culpability was high; he took a starting point of cumulative 22-month sentences on each of Ms He’s two charges.[9] He then reduced the resulting 44-month sentence by eight months to acknowledge the time she had spent on bail and the effect that imprisonment would have on Ms He’s son. After another eight month discount for her guilty plea (roughly 18 per cent), the final sentence imposed was 28 months’ imprisonment.[10]
Mr Zhou
[9]R v He, above n 2, at [44]–[46].
[10]At [47]–[48].
Early on in his sentencing notes the Judge recorded:
[15] Mr Zhou appears for sentence on six charges: a charge of selling or supplying a psychoactive substance; secondly: possession for supply involving 980 grams of the substance; third: unlawful possession of a restricted weapon, namely a taser or stun gun; fourth: unlawful possession of a firearm; fifth: unlawful possession of ammunition, and possession for supply of a psychoactive substance involving 173 kilograms.
Reference to the respective SOFs makes it clear that, out of the charges against Mr Zhou, only the selling/supply charge was the same as the selling/supply charge for which Ms He was sentenced. All the other charges for which Mr Zhou was sentenced were different.
The Judge noted that the Crown position was that Mr Zhou had been turning over between three to five kilograms of synthetic cannabis per week. Between October 2014 and May 2016, the gross weekly proceeds were estimated by the Crown to range between $27,000 and $45,000, yielding a direct profit of between $442,000 and $885,000. While noting that those amounts were disputed by Mr Zhou’s counsel, the Judge said:[11]
Whether those figures are accurate or not, it is clear that the amounts involved in terms of both the synthetic cannabis and the proceeds is significant and at the higher end of the scale. The Crown submits that your offending is at the same level of Ms He or just below that. The Crown submits that there should be a starting point in the vicinity of three and a half years’ imprisonment with an uplift on the firearms and ammunition charges.
[11]At [34].
And in terms of the sentence itself, the Judge said:
[49] Mr Zhou you were a major player in the distribution of synthetic cannabis. At the age of 35 you are not a young or youthful offender. You were Ms He’s lieutenant. The number of sales and supply of cannabis was significant. The presence of firearms is clearly concerning. … I take a similar starting point that I did for Ms He in respect of the drugs charges, that is 22 months’ imprisonment on both charges, meaning a sentence, therefore, of 44 months’ imprisonment.[12] I tend to increase that by 12 months to take into account the firearms and ammunition charges. The firearms and ammunition charges will be concurrent with each other, but the 12 months will be cumulative and in addition to the 44 months meaning that there is then a sentence of 56 months’ imprisonment.
[50] I take into account your personal circumstances and the time that you were on bail. I take into account that you have no other previous or relevant convictions apart from this set of offending and I take into account the effects and consequences that there has been for you. I, therefore, intend as a result of these charges and being on bail, I, therefore, reduce that sentence of 56 months by eight months meaning that there is then a sentence of 48 months’ imprisonment.
[51] I then want to deal with the issue of the plea of guilty. I did not specifically raise it with Ms He when I sentenced her. I gave her a discount in the vicinity of 20 percent. Assessing credit for a guilty plea is not an easy task. The defence here argue that you should receive a 25 per cent discount. The Crown say that it should be in the vicinity of 10 per cent. I do not agree that you should receive a 25 per cent discount. A significant period of time occurred between your first appearance and your plea on the ninth day of trial. You could have pleaded guilty to the drugs and firearms charges much earlier and denied the money laundering charges. If I was to give you 25 percent credit now, what then would a defendant get in accordance with the R v Hessell decision had there been a much earlier guilty plea? Realistically, it could not have been more than 25 percent according to Hessell v R. I think that you should get more than 10 percent even though it was a plea that occurred part‑way through trial. There are two reasons for that. One is that it did save a significant amount of Court time. It saved the possibility of having another trial if we got to a stage where I accepted a Crown submission for a mistrial, and I also take into account that there was a change in the charges from the point of view that the money laundering charges were reduced. The way that this matter resolved itself may have been a pragmatic way of reaching a resolution. I think it probably was. The money laundering charges were in law, according to the maximum penalty, the more serious of the charges and the Crown elected not to proceed on those matters. What I, therefore, intend to do from the 48 months’ imprisonment that I have imposed is to reduce that by 10 months for your pleas of guilty. That then means that there is a sentence of 38 months’ imprisonment.
(Footnote omitted.)
[12]Mr Zhou was, in fact, being sentenced for three drugs charges. See above at [11].
And lastly, in terms of parity, he said:[13]
I think it would be wrong for you to receive a sentence greater than Ms He and I think it is appropriate that you receive a slightly lesser sentence than her to take into account issues of culpability and fairness which I intend to do is to reduce that sentence of 38 months’ imprisonment to one of 26 months’ imprisonment to reflect your culpability. While it might be justified that the firearms and the presence of the firearms involved warrant a greater sentence, when I stand back and look at the issues of parity, I think that your sentence should be slightly less than Ms He. I, therefore, intend to sentence you to an effective sentence of 26 months’ imprisonment. What I intend to do on the three [sic] drugs charges is to impose a sentence of 13 months’ imprisonment, that is cumulative on each other, meaning a sentence of 26 months’ imprisonment[14] and on the firearms charges, one year’s imprisonment and the ammunition one year’s imprisonment on each of those to be served concurrently so that there is an effective sentence of 26 months’ imprisonment.
The appeal
[13]R v He, above n 2, at [52].
[14]Three cumulative sentences of 13 months’ imprisonment would, of course, result in an end sentence of 39 months’ imprisonment. But it seems clear from the Judge’s arithmetic here, and his earlier comments, that he intended only two of the three sentences on the drugs charges to be cumulative.
Mr Zhou says there were three errors in the Judge’s sentencing:
(a)the starting point took insufficient regard of parity with Ms He;
(b)the discount for Mr Zhou’s personal mitigating circumstances was insufficient; and
(c)the discount for Mr Zhou’s guilty plea ought to have been 25 per cent.
We record that when questioned by the Court during the hearing of the appeal, Mr Lucas (on behalf of Mr Zhou) confirmed that he did not seek to take issue with the imposition of cumulative sentences on the drugs charges.
Discussion
It is trite that in an appeal such as this the Court’s focus must be on the final sentence arrived at by the Judge and whether it was in the available range, rather than the exact process by which it was reached.[15] And here, even if we were to accept all the points made on Mr Zhou’s behalf, the fact remains that the Judge reduced the 38 month end point — which he had otherwise legitimately reached — by 32 per cent to 26 months’ imprisonment, solely for reasons of parity with Ms He. No more favourable result could be achieved by adjusting that end point in the way suggested by Mr Lucas. Even if all of Mr Zhou’s appeal points were to be accepted, Mr Zhou’s sentence would be constructed something like this:
(a)A reduced combined starting point of 38 months (rather than 44 months) on the “two” drugs charges, to reflect what Mr Lucas says is Mr Zhou’s lesser role.
(b)An uplift of 12 months for the firearms and ammunition charges (no issue having been taken with this on appeal).
(c)And a combined 45 per cent discount for mitigating factors, comprising:
(i)20 per cent (rather than 14 per cent) for personal circumstances (which we do not think was warranted); and
(ii)25 per cent (rather than 18 per cent) for guilty pleas (which we also do not think was warranted, for the same reasons given by the Judge).
[15]Ripia v R [2011] NZCA 101 at [15].
Such a process would yield an end sentence of between 27 and 28 months’ imprisonment, which is still higher than the end sentence actually imposed by the Judge, and out of home detention range.
But in the hearing before us it became apparent that Mr Lucas’ principal submission was that — regardless of the different and additional charges faced by Mr Zhou and of any specific and otherwise appropriate uplifts or discounts that might be adopted — Mr Zhou’s end sentence should have been more than two months below the end sentence of 28 months’ imprisonment imposed on Ms He due to his lesser role in the overall operation.
We cannot agree with that submission. The Judge made a very significant (12 month or 32 per cent) adjustment to the end sentence on parity grounds. And the reality is that, despite what might be said about their respective roles in the drug distribution network, Mr Zhou was being sentenced on more charges than Ms He, including the undoubtedly aggravating firearms charges. Ms He’s personal circumstances were also different from Mr Zhou’s. To suggest that a sentencing judge should ignore such differences would stretch s 8(e) of the Sentencing Act 2002 past breaking point.[16]
[16]Section 8(e) provides that in sentencing an offender the court “must take into account the general desirability of consistency with appropriate sentencing levels … in respect of similar offenders committing similar offences in similar circumstances”.
On any analysis, the sentence imposed by the Judge was not manifestly excessive.
Result
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondents