Zhu v Customs

[2022] NZHC 1122

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-53 [2022] NZHC 1122

BETWEEN

HUA YI ZHU

Appellant

AND

NEW ZEALAND CUSTOMS

Respondent

Hearing:	26 April 2022
Appearances:	D M Cross for Appellant D B Dow for Respondent
Judgment:	20 May 2022

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 20 May 2022 at 2pm

Registrar/Deputy Registrar

Solicitors:

Meredith Connell, Auckland

ZHU v NEW ZEALAND CUSTOMS [2022] NZHC 1122 [20 May 2022]

Introduction

[1]    Hua Yi Zhu (the appellant) appeals against her sentence of three years’ imprisonment imposed by Judge EM Thomas  in  the Auckland  District  Court  on 20 January 2022 in respect of charges of defrauding the revenue of the New Zealand Customs Service (Customs) and possession of uncustomed goods relating to the illegal importation into New Zealand of a large quantity of cigarettes over a period of approximately three years between 2015 and 2018.1 The appellant says that the Judge erred in adopting a starting point of six years in relation to her sentence, and as a consequence, the sentence she received was manifestly excessive.

[2]    The Crown on behalf of Customs as respondent opposes the appeal. It says that the sentence imposed was not manifestly excessive and the appeal should be dismissed.

The charges

[3]The appellant was charged with:

(a)28 charges alleging that together with Wei Yi (Charles) Hu, and Zhong Ze Group New Zealand Limited, she knowingly imported cigarettes from China into New Zealand, intending to evade the payment of any duty on the cigarettes, and contrary to s 211(1)(a) and (3)(a) of the Customs and Excise Act 1996;2

(b)seven charges alleging that together with Wei Yi (Charles) Hu, and Zhong Ze Group New Zealand Limited, she knowingly imported cigarettes from China into New Zealand, intending to evade the payment of any duty on the cigarettes, and contrary to s 371(1)(a) and (4)(a) of the Customs and Excise Act 2018;3 and

1      New Zealand Customs Service v Zhu [2022] NZDC 785 [Sentencing decision].

2      Customs and Excise Act 1996, s 211(1)(a) and (3)(a): carrying a maximum penalty of six months’ imprisonment or a fine not exceeding $20,000 or both.

3      Customs and Excise Act 2018, s 371(1)(a) and (4)(a): carrying a maximum penalty of five years’ imprisonment or a fine not exceeding $20,000 or both.

(c)four charges alleging that together with Wei Yi (Charles) Hu, and Zhong Ze Group New Zealand Limited, she knowingly and without lawful justification had in their possession imported tobacco cigarettes, knowing that they were uncustomed goods, and contrary to s 372(1) and (3)(a) of the Customs and Excise Act 2018.4

[4]    The appellant’s co-defendant, Wei Yi (Charles) Hu, is her husband. The appellant denied the charges and they were heard by Judge EM Thomas at a judge-alone trial between 17 and 19 February 2021. In a decision dated 24 February 2021, Judge Thomas found the appellant not guilty of one charge relating to an importation of cigarettes in 2015, and guilty of all of the other 28 charges relating to the importation of tobacco cigarettes between 2016 and 2018, and also of the four charges relating to possession of uncustomed cigarettes located by Customs in four separate locations on 20 November 2018.5

Background

[5]    The appellant’s offending related to the large-scale importation of tobacco cigarettes into New Zealand by the appellant’s husband (Mr Hu), and Zhong Ze Group New Zealand Ltd (the Zhong Ze Group) while avoiding the payment of import duty and GST on the cigarettes. Once imported into New Zealand the cigarettes were sold by Mr Hu to distributors who then on-sold them within the community.

[6]    The Zhong Ze Group operated in New Zealand as a furniture importing business. The offending involved the concealment of cigarettes within metal cabinets which were packed behind legitimate furniture goods in shipping containers sent to the Zhong Ze Group from China. Neither the cigarettes nor the metal containers they were concealed within were declared to Customs by Mr Hu on import documentation and declarations completed by Mr Hu on behalf of Zhong Ze Group.

[7]    The scale and quantum of the offending was determined by Judge Fitzgerald in a proof of facts hearing prior to the sentencing of Mr Hu. His Honour found the

4      Customs and Excise Act 2018, s 372(1) and (3)(a): carrying a maximum penalty of six months’ imprisonment or a fine not exceeding $20,000 or both.

5      R v Zhu [2021] NZDC 4127.

offending to have involved the importation of 19,419,400 cigarettes, and the total revenue evaded to be $18,732,767. This quantum was an agreed fact at the appellant’s trial.

[8]    The offending by the appellant and her husband was detected by Customs following a covert investigation into the sale of uncustomed cigarettes in Auckland. Upon the execution of search warrants on 20 November 2018, Customs located approximately 60,000 cigarettes, and approximately $65,000 cash at the residential address of the appellant and her husband, and 1,000 cigarettes and approximately

$1,000 cash in the appellant’s vehicle. In Kennards storage units rented by Mr Hu, Customs located 214 metal cabinets; 1,455,257 cigarettes; $841,225 cash; and a money counting machine. And in Safestore storage units also rented by Mr Hu they located: 465 metal cabinets; 400 cigarettes; and $3,255,550 cash stored in rubbish sacks.

[9]    In his decision finding the appellant guilty of all but one of the charges she faced, Judge Thomas found that the prosecution had proved beyond reasonable doubt that the appellant was knowingly involved in the importation operation from 2016 until November 2018 when the Customs operation was terminated and the appellant and her husband were arrested and charged. Judge Thomas found that the appellant’s involvement in the importation operation included:6

(a)acting as an intermediary between Mr Hu, the Chinese based exporter known as Caicai (who is the appellant’s brother), and the cigarette supplier in China (Ms Zhou);

(b)conducting market research on the prices of cigarettes in China;

(c)discussing the method of concealment of the cigarettes within the shipping containers;

(d)handling Customs documentation and passing it to Mr Hu;

6      At [41]–[46].

(e)on at least one occasion remitting money to Ms Zhou to pay for an order of cigarettes;

(f)physically moving cabinets containing the cigarettes into the Auckland storage units following devanning from the shipping containers;

(g)continuing to operate and run the legitimate furniture importation business in order to provide a method of importing the cigarettes; and

(h)on-selling the cabinets which had been used for the importation of the cigarettes as a front for the importation of the cigarettes.

[10]   Judge Thomas summarised these aspects of the appellant’s offending in the following terms:

[41] The messaging data seen in that light then demonstrates your involvement. From April 2016 you assisted with various different arrangements relating to the shipment of the containers, the metal cabinets and the cigarettes within them. You passed messages regarding shipments, orders, brands, quantities and processes between Ms Zhou and Mr Hu. You dealt directly with Ms Zhou regarding orders and shipments and with Caicai, usually on the instructions of Mr Hu. That included passing some of the necessary importation documentation from or to Mr Hu from Ms Zhou, organising some payments to Ms Zhou and Caicai again on the instructions of Mr Hu, conducting market research, ordering metal containers or metal cabinets, selling them once they had been emptied, managing the storage, and acting as a link between Ms Zhou and Caicai.

[11]   As the appellant’s and her associates’ chat data regarding their electronic messages during the period prior to 2018 was deleted it was not possible for Customs to identify exact dates, specific containers used, and the quantities of cigarettes shipped to New Zealand prior to 2018, however records for 2018 showed that the offenders imported 30 containers with cigarettes concealed within them during that year. And on average 332,800 cigarettes were imported in each of these containers.

[12]   During the period of the offending significant sums of money were remitted back to China, mostly by Mr Hu. This included:

(a)138 transactions sent to bank accounts associated with Ms Zhou totalling $2,981,315;

(b)180 transactions sent to the appellant’s brother totalling $2,152,106; and

(c)72 transactions sent to the appellant’s bank account in China, totalling

$1,326,382.

Submissions

The appellant

[13]   Ms Cross for the appellant submits that the appellant’s role in the operation and her culpability should be assessed as being significantly lower than that of her husband Mr Hu, who she says was “the undoubted mastermind and principal offender in this offending”. Ms Cross notes that Mr Hu’s leading role in the importation operation is evident from the additional charges he faced compared to the appellant, and for which he pleaded guilty. The further offences relating only to Mr Hu and not the appellant were: a charge of defrauding the revenue of Customs relating to the first year of the cigarette importations during 2015; 27 charges of making erroneous entries under the Customs and Excise Act 2018; four representative charges of the sale of uncustomed goods under the Customs and Excise Act 1996; and four representative charges of the sale of uncustomed goods under the Customs and Excise Act 2018.

[14]   Having pleaded guilty to the charges, Mr Hu and Zhong Ze Group were sentenced in the District Court at Auckland by Judge A J Fitzgerald on 4 June 2020. Mr Hu was sentenced to five years and three months’ imprisonment,7 and Zhong Ze Group was fined on each of the charges.

[15]   Ms Cross says that Ms Zhu’s appeal is brought on the grounds that the sentencing Judge made a material error in determining the sentence imposed on the appellant resulting in a sentence of three years’ imprisonment that was manifestly excessive. She submits that:

(a)The sentencing Judge erred in setting the sentencing starting point of six years’ imprisonment. Specifically by his erroneous assessment of

7      New Zealand Customs Service v Hu [2020] NZDC 10296.

the appellant’s level of culpability, by failing to take proper account of the cultural background and context in which her offending occurred, and by failing to take proper account of the imbalance of power in the appellant’s relationship with her husband and the pressures on her by reason of the family and cultural dynamic that led to her becoming involved in the illegal importation venture.

(b)The Judge also failed in his consideration and assessment of the appropriate starting point by failing to take proper account of the appellant’s personal mitigating factors, including the psychological situation of both of her sons, and the basis on which Mr Hu was granted parole.

(c)The Judge also failed to have proper regard to the uncontested evidence before the Court relevant to the appellant’s culpability and personal mitigating circumstances.

[16]   In support of the appeal the appellant relies on the following reports and decision:

(a)A report by Dr Zhixiong Liao, Senior Lecturer in Law at the University of Waikato, regarding the cultural circumstances relevant to the appellant and her offending.

(b)A report/assessment prepared by Ingalise Jensen, Clinical Psychologist, which addresses the impact of a sentence of imprisonment imposed on the appellant upon her two teenage sons.

(c)The decision of the Parole Board dated 8 September 2021 regarding the proposed release of Mr Hu to enable him to reside with the appellant and their two children.

[17]   Relying on Zhang v R,8 Ms Cross submits that the role played by an offender is an important consideration for the sentencing court to take into account when setting the sentencing starting point, as the role played by the offender informs an assessment of the seriousness of their criminality and culpability. Referring to the categories of “leading”, “significant”, and “lesser” explained in Zhang to the present case and the appellant’s offending, Ms Cross submits that the appellant’s offending is appropriately assessed as either falling within the “lesser” category, where the offender performs a limited function under direction and may have been engaged by duress, naivety or other vulnerability, or at most at the bottom cusp of the “significant” category. Counsel notes that the United Kingdom sentencing guideline referred to in Zhang identifies the starting point in each category for a lesser role as being approximately half the starting point for offending found to be in the leading category.9

[18]   Ms Cross submits that the sentencing Judge failed to have proper regard for the appellant’s role in the illegal enterprise, by not taking account of the appellant’s cultural background and circumstances which placed her in a position of vulnerability, inferiority, and submission as regards her husband who was the mastermind of the operation. Counsel submits that as a result of the Judge’s failure to take those matters into account, the sentencing process was undertaken in a manner that was erroneously rigid, and precluded a proper assessment of the appellant’s criminality, leading to the Judge failing to take account of factors which were highly relevant to his assessment of the appropriate starting point and resulting in the adoption of a materially higher starting point than was justified.

[19]   Ms Cross says that although the Judge accepted that Mr Hu was the mastermind of the operation and found that the appellant had played a less significant role, he considered that the appellant had nevertheless played an active, willing and knowing role, which informed his six year starting point. However, the Judge did not consider the reasons why the appellant became involved and participated in the illegal importation enterprise, and those factors being relevant to an assessment of the appellant’s role and culpability, were not taken into account. Ms Cross submits that

8      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

9 At [117].

had the relevant features of the appellant’s offending been taken into account by the Judge a starting point appreciably less than the six years would have resulted.

[20]   Mr Cross also notes that the six year starting point fixed by the Judge is 75 per cent of the starting point adopted in Mr Hu’s case. Counsel submits that compared to Mr Hu, the appellant is materially less culpable. Counsel submits that the appropriate starting point for the appellant’s offending would be approximately 50–60 per cent of the starting point adopted for Mr Hu which would put her starting point in the range of four years to approximately four years and nine months.

[21]   Counsel submits that it is evident from the reports referred to above that as Mr Hu’s wife, there was a cultural duty on the appellant to comply with her husband’s directions and requests to undertake the various actions by which she participated in the illegal operation. She further submits that Mr Hu had applied pressure on the appellant to participate which also affected her mental health. Ms Cross submits that as a result of the power imbalance between the appellant and her husband, the appellant was not self-directed or independent in her decisions to participate in the enterprise to the extent that Mr Hu was. Counsel submits that this resulted in the appellant participating in the enterprise as a result of her subservience to her husband and at his direction.

[22]   Ms Cross submits that it is also relevant to note that the appellant’s main role was that of mother and looking after the family household before becoming involved at the request of her husband in the illegal importation enterprise that he initiated. Counsel says that the appellant thereafter stayed in the marriage for family reasons, particularly in the interests of her two teenaged sons for whose care she was principally responsible. Ms Cross says that while the appellant benefited financially from the money coming into the family from the cigarette importation and sales, she was not responsible for creating and setting up the scheme - motivated by greed as was Mr Hu.

[23]   Turning to the appellant’s personal mitigating factors to be taken into account in the second stage of the sentencing process, Ms Cross submits that the Judge erred by failing to take appropriate account of the effect that imprisonment of the appellant would have on her  two teenaged children.  Ms Cross says that while the Judge noted

that it was appropriate to consider the impact of the sentence upon the children, he said that as they had both finished their secondary schooling they were “no longer children” and were living with their father in the family home since he had been released on parole.10 Ms Cross submits that the vulnerability of young adults does not suddenly change when they finish secondary school, and the foreseeable and adverse effects of the appellant’s imprisonment was a factor that ought properly to have been taken into account and justifies a reduction of the sentence imposed on her.

[24]   Ms Cross acknowledges that the Judge allowed discounts totalling two and a half years which he deducted from the starting point, which represented just over 40 per cent. However, Ms Cross says that without engaging in an overly mechanistic process, an end sentence between “just over two years and that of two years and five months imprisonment” was appropriate.

The respondent

[25]   In opposing the appeal and supporting the sentence imposed by the District Court Judge, Mr Dow for the respondent says that the illegal cigarette importation operation in which the appellant was actively involved was a highly sophisticated and carefully planned and executed enterprise which was conducted on a massive scale. He says that the appellant and her husband co-ordinated the activities of a number of people internationally over a lengthy period, including those persons from whom they sourced the cigarettes, associates whose addresses they used in the operation, and customers who they sold to.

[26]   Referring to the categories of offending described in Zhang relating to drug offending, Mr Dow says that the categories of “leading”, “significant” and “lesser” are also helpful regarding the assessment of culpability according to the role played by the offenders. The respondent submits that the appellant’s role in the illegal enterprise falls within the “leading” category identified in Zhang, or at the very least on the cusp of the “significant” and “leading” categories.

10     Sentencing decision, above n 1, at [11].

[27]   The respondent submits that the appellant’s role in the operation satisfies most of the factors set out in the “significant” category as well as some of the factors in the “leading” category. Mr Dow says that contrary to the appellant’s submission, she does not satisfy most of the criteria in the “lesser” category. The respondent submits that there is limited evidence that the appellant became involved in the enterprise as a result of pressure from her husband. Mr Dow says that although the s 27 report relied on by the appellant refers to the cultural pressure on Chinese wives to co-operate with their husbands, the only evidence of pressure being placed on the appellant by Mr Hu comes from the appellant herself in comments made to the authors of the s 27 and pre- sentence reports.

[28]   Mr Dow notes that in the pre-sentence report the appellant describes herself as having only “minimal involvement with the business” and presented herself as being a naïve party in the offending. The respondent also notes that the appellant’s involvement in the operation was motivated by the prospect of substantial financial gain, which she expected and received. She was fully aware of the scale of the operation. Mr Dow says that an indication of the appellant’s level of involvement in the operation can be seen from the fact that over the period of approximately five months commencing 1 July 2018 until termination of the Customs investigation, during which the offenders’ visits to the storage units were recorded on CCTV, they visited 133 times and the appellant was either present with her husband or on her own 20 times.

[29]   The respondent submits that while a lower starting point is appropriate for the appellant than was adopted in relation to Mr Hu to reflect her role and the fact that he played a greater role and was the “mastermind” behind the operation, the differences in their roles were not so significant as to justify a substantially lower starting point for the appellant. Mr Dow says that the additional charges faced by Mr Hu relating to him making false customs entries and selling uncustomed cigarettes does not elevate his offending to any significant extent above the appellant’s, but rather represents the division of responsibilities that they each undertook in connection with the operation of the enterprise in a manner that was “more akin to a partnership” than a relationship in which the appellant was carrying out her role as the result of directions and pressure from Mr Hu.

[30]   The respondent submits that the appellant’s offending is properly seen as being at the very high end of Customs and Excise Act offending, and consequently should attract the maximum available penalties for those offences. Mr Dow notes that the fraud on the customs revenue represents the most serious offending involving the illegal importation of goods into New Zealand that has come before the courts to date. Referring by analogy to the case of R v Dhillon in which the defendant was sentenced on 50 charges of tax evasion, and the tax evaded was approximately $3.3 million,  Mr Dow notes that the sentencing Judge had adopted a starting point of seven years’ imprisonment which was upheld on appeal, as was the end sentence imposed of six years and six months’ imprisonment.11 The respondent says that the illegal operation in which the appellant was engaged together with her husband, was offending on a much larger scale than that in Dhillon, which indicates that the adoption of a starting point less than that adopted in Dhillon was not excessive.

[31]   In reply to the appellant’s submission that the Judge failed to give her a sufficient discount in recognition of the adverse effect that a sentence of imprisonment would have on her two teenaged children, the respondent notes that the Judge gave her a discount of two and a half years’ imprisonment (42 per cent) in recognition of her previous good character, the cultural pressure on her and the mental health impact on both the appellant and her children of her imprisonment. The respondent notes that the appellant’s children are now aged 20 and 18 years respectively and submits that the discount allowed by the Judge in recognition of these personal factors was appropriate if not generous. The respondent accordingly submits that the discounts allowed by the Judge did not involve any error and should not be disturbed on appeal.

[32]   Finally, the respondent also notes that the Judge allowed a discount of six months to take account of the amount recovered by the Crown as a result of forfeiture proceedings. The sum recovered following the settlement of proceedings commenced by the Commissioner of Police was $5,478,368. The respondent says that the Judge erred by giving a discount for that factor. Mr Dow notes that the Court of Appeal in Henderson v R held that as a general rule forfeiture proceedings should not be taken into account as a mitigating factor when determining the appropriate sentence in

11     R v Dhillon [2009] NZCA 597, (2010) 24 NZTC 24,030.

criminal proceedings.12 The respondent does not seek to have what it submits was an error by the Judge corrected on appeal, but says that the “windfall discount” of six months given to the appellant is something that the Court can also take into account when considering whether the end sentence imposed on the appellant was manifestly excessive.

Appeal against sentence

Relevant law

[33]   Section 250(2) of the Criminal Procedure Act 2011 states that the court must allow the appeal if satisfied that:

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[34]In any other case, the court must dismiss the appeal.13

[35]   The Court of Appeal in Tutakangahau v R confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.14 Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentence appeals.15

[36]The approach taken under the former Summary Proceedings Act was set out in

R v Shipton:16

(a)There must be an error vitiating the lower court’s original sentencing discretion: the appeal must proceed on an “error principle”.

12     Henderson v R [2017] NZCA 605 at [42]–[43].

13     Criminal Procedure Act 2011, s 250(3).

14     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

15     At [33] and [35].

16     R v Shipton [2007] 2 NZLR 218 (CA) at [138]–[140].

(b)To establish an error in sentencing it must be shown that the Judge in the lower court made an error whether intrinsically or as a result of additional material submitted to the appeal court.

(c)It is only if an error of that character is involved that the appeal court should re-exercise the sentencing discretion.

[37]   The High Court will not intervene where the sentence is within the range which can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.17

Discussion

[38]   In my view it is quite clear that the appellant played an active, central, and significant role in the illegal operation, and did so over an extended period of approximately three years. The appellant’s operation of her furniture importing business provided the appearance of a legitimate business through which to carry out the illegal importation of cigarettes. This was obviously a vital part of the illegal enterprise. The appellant was actively involved in making arrangements with sources and associates in China to procure the cigarettes and arrange for them to be concealed in the shipping containers in which her furniture imports were sent to New Zealand. The appellant well knew the scale of the operation and obtained a substantial financial benefit from her participation in it. I agree with the respondent’s characterisation of her and Mr Hu’s involvement in the operation as being in effect a partnership.

[39]   It is also clear that the appellant and Mr Hu were responsible for different aspects of the operation, with the appellant’s role including her being involved in arranging the purchase and shipment of the cigarettes from China, and Mr Hu’s role including responsibility for the sale and distribution of the cigarettes in New Zealand. While it appears that Mr Hu was the instigator and mastermind behind the operation, I consider the active and willing involvement of the appellant and her readiness to

17     Ripia v R [2011] NZCA 101 at [15].

share the proceeds of the enterprise puts her level of culpability only slightly below that of Mr Hu.

[40]   An assessment of the appellant’s level of culpability with reference to the criteria set out in Zhang in relation to drug offending is in my view an appropriate means of gauging her level of criminality as the factors set out in Zhang relating to the various roles of individuals involved in drug importation and distribution, readily correlate to the roles played by offenders involved in the illegal importation and distribution of the uncustomed cigarettes in the present case.

[41]   I consider that the appellant satisfies all but one of the Zhang criteria relating to offenders playing a “leading” role. The appellant was involved in organising and buying the cigarettes on a commercial scale (with her husband responsible for their sale and distribution); she had substantial links to and influence over others in the operation (her brother arranged the loading and concealment of the cigarettes in cabinets sent with her furniture in containers shipped to New Zealand); she had close links to the original source of the cigarettes in China (she dealt directly with Ms Zhou who supplied the cigarettes and undertook market research regarding prices); she had an expectation of receiving a substantial financial gain from her involvement and the role she played (that she received a substantial financial benefit is evident from the amounts she remitted to China and the enormous quantity of cash located by Customs on termination of the investigation operation); she also used her legitimate furniture importation business as a cover for the illegal operation; she was also motivated primarily by greed; she directed others as to what they were to do; and she was fully aware of the scale of the operation.

[42]   That analysis justifies the adoption of a starting point only slightly below the eight year starting point adopted by Judge Fitzgerald in the sentencing of Mr Hu. And I agree with the respondent’s submission that the case of Dhillon provides a useful comparison and further support for the six year starting point adopted by the Judge.

[43]   I also agree with the respondent’s submission that there is no independent evidence to show that the appellant was ever put under pressure by her husband. Although Dr Liao, the author of the appellant’s s 27 report, has set out and explained

the Chinese culture and its relevance to the role and authority of Mr Hu within the family, and the appellant’s wish to maintain the marriage despite relationship difficulties and her consequent compliance and co-operation with him including in relation to the illegal importation operation, those factors including the appellant’s desire to avoid the stigma of divorce and to maintain the family unit, do not explain or justify her actions of actively and willingly participating in the operation of the illegal enterprise. There is no independent evidence that the appellant was in fact instructed or ordered to carry out her role in the operation and that she was effectively compelled to do so and as a consequence reducing the level of her criminal culpability.

[44]   I therefore do not consider the influence of the Chinese culture on the appellant to be a factor warranting a reduction of the starting point. In my view it is a factor more appropriately taken into account as a personal mitigating factor as indeed it was by Judge Thomas.

[45]   I consider that having regard to the scale of the illegal importation operation, the volume of cigarettes imported and sold in New Zealand, the very significant amount of money obtained from the enterprise, and the central and leading role played by the appellant, the starting point of six years, being two years below that adopted for Mr Hu, was appropriate, if not generous.

[46]   I agree with Judge Thomas that although the imposition of a term of imprisonment will undoubtedly have an adverse effect upon the appellant’s sons who will no doubt miss the support and affection of their mother while she remains in prison, having regard to their ages of 20 and 18, and to the fact that they are living with and being cared for by Mr Hu following his release from prison on parole, that is not a factor that requires recognition by way of a further discount over and above that already allowed by Judge Thomas. The two and a half year discount allowed by the Judge to take account of the appellant’s previous good character, the matters set out and explained in Dr Liao’s s 27 cultural report, and to take account of the interests and the effect of the prison sentence on the appellant’s sons, was also appropriate if not generous. The additional six month discount allowed by the Judge on account of the recovery achieved by the Commissioner of Police in the Criminal Proceeds

(Recovery) Act 2009 proceedings, was also generous and favourable to the appellant, as in my view it was not a factor that warranted recognition as a mitigating factor.

[47]   For these reasons, I am satisfied that the sentence of three years’ imprisonment imposed on the appellant by Judge Thomas, was not manifestly excessive.

Result

[48]The appeal is dismissed.

Paul Davison J