| [1] | The appellants
pleaded guilty to importing the class B drug methamphetamine into New Zealand
and possessing methamphetamine for the
purpose of supply or sale.Those charges
carried a maximum penalty of 14 years imprisonment.The appellants were each
sentenced to
seven and a half years imprisonment on both charges with minimum
non-parole periods of five years. |
| [2] | The
appellants, aged 31 and 26 respectively, arrived in New Zealand on 20 July
2002 on a flight from Hong Kong.Upon a search conducted
at Auckland
International Airport the appellant Cheng was found to be carrying approximately
8160 tablets of methamphetamine and
the appellant Wong was found to be carrying
approximately 8169 tablets. |
| [3] | The Summary
of Facts which was the basis of the guilty pleas stated that an individual
methamphetamine tablet sold in this form in
New Zealand at “street
level” can fetch between $50 and $100.At sentencing counsel were agreed
that the value of the
methamphetamine tablets was between $300,000 and $800,000.
(All figures are in New Zealand
dollars.) |
| [4] | Each appellant promptly admitted
the importation.It is accepted that each was merely a courier, carrying the
drugs on behalf of another
person or persons.Each said he stood to make a
personal profit from so doing of between $5,000 and $8,000.They became
involved in
the importation because of an urgent need to obtain
money. |
| [5] | Neither appellant has any known
previous criminal convictions. |
| [6] | The
appellants were sentenced in the District Court at Auckland.The Judge said
that there was no evidence before him of the purity
of the drugs but that
counsel had agreed that such drugs must have contained a very substantial amount
of active ingredient for the
market to value them on the admitted basis.He
commented that methamphetamine is recognised as being a strongly addictive drug
which
brings “great misery and ruin in its trail”.The Judge
referred to the decision of this Court in R v Wallace [1999] 3 NZLR 159
for the proposition that the primary requirement of sentencing is to deter
persons who might otherwise be minded
to bring drugs into New Zealand.He said
that case also recognised that assistance to the police in helping to identify
other persons
involved in criminal activity is a matter to be taken into account
to the credit of the accused persons. |
| [7] | The
Judge accepted that he should not treat the appellants as joint subscribers to
an overall criminal venture but should effectively
treat them as being
“stand-alone offenders who happened to be brought together by the
organisers of this operation”. |
| [8] | The
Judge took a starting point of “no less than 10 years”, saying that
the requirement of deterrence called for such
a sentence.He then made a
deduction recognising each man’s plea of guilty but taking into account
the strength of the case,
saying that the credit needed to reflect that they had
been caught red-handed.The other matter which the Judge said was relevant
to a
discount was that the appellants had given assistance to the prosecuting
authorities.He had been told by counsel that this had
resulted in threats to
them or their families.He said that he did not intend to act on that
unsupported assertion but did in general
way recognise that giving assistance to
the police to prosecute other persons involved in this type of enterprise was
inherently
hazardous. |
| [9] | The Judge deducted
two and a half years from the starting point and sentenced each appellant to
seven and a half years imprisonment.He
considered that it was an appropriate
case for a minimum non-parole period under s86 of the Sentencing Act 2002,
saying that release
after one-third of the sentence would send the wrong signals
to those who might otherwise become involved in offending of this kind.He
fixed a minimum non-parole period of five years for each
appellant. |
| [10] | In his careful submissions for
the appellants, Mr Tomlinson accepted that the starting point of 10 years was
within the range generally
available for this kind of offending but said that it
was excessive in this instance for persons acting simply as couriers in a
one-off
event which was not, for them, involvement in an ongoing series of drug
transactions.The appellants would have had no control over
the disposal or
distribution of the drugs.Mr Tomlinson said that if the criteria in
Wallace (at paras [30] – [33]) were followed, a starting point of
eight years would have been more
appropriate. |
| [11] | Counsel submitted that the
total discount for the early guilty pleas and the assistance to the authorities
should have been in the
vicinity of five years and that a two and a half year
discount would have been appropriate for the guilty pleas alone.A lesser
discount,
counsel said, would pay lip service only to the need to give proper
discounts in order to encourage accused persons to accept their
guilt.It would
not encourage others who might find themselves in a similar position to face the
“inevitable”, and thereby
avoid wastage of prosecutorial and court
time.The appellants in this case had pleaded guilty on their second
appearance. |
| [12] | Mr Tomlinson described the
appellants’ co-operation in efforts to apprehend the principal offenders
as “considerable”.Those
efforts had not been successful, he said,
but the police had acknowledged that that was not because of any fault or delay
by the
appellants.The assistance had involved the supplying of information
regarding phone calls, setting up a meeting at a hotel and being
at the hotel to
make contact.A “sting” operation had proceeded for nearly two
days.A letter confirming the cooperation
had been provided by the police at
sentencing.Since the sentencing, as confirmed by a further letter from the
police, the appellants
have spoken freely to Hong Kong police at the prison but
it transpires that they have not been able to provide additional
information. |
| [13] | Mr Tomlinson submitted that
in fixing a non-parole period the Judge had given no reasons for choosing a
period of five years and had
not considered the circumstances of the offenders.In addition to the personal circumstances already mentioned, there were the
appellants’
inability to speak English to any degree and the effect of a
lengthy prison term on two foreign nationals who have no family support
while
serving their sentences.Counsel said that the imposition of a non-parole
period of five years had negated any benefit or discount
for the early guilty
pleas and assistance to the police.It removed the incentive an offender might
have to take such a course in
a future case.While recent drug or importation
cases had attracted non-parole periods, counsel said none had been as high as
two
thirds of the finite sentence. |
| [14] | For the
Crown, Ms Markham pointed out that importation of over 16,000 tablets of
methamphetamine constituted offending on a major
scale.She referred to the
recent case of R v Lam, CA282/02, 23 October 2002, where a sentence of
nine and a half years, from the starting point of 12 years, had been upheld in
this
Court when imposed on a Hong Kong national who had imported 8500 tablets of
MDMA with a street value of between $425,000 and $850,000.The
appellant in
that case had acted as a courier.He had agreed to carry the drugs in order to
pay back a debt. |
| [15] | Counsel for the Crown
also submitted that the discount given in this case of two and half years or
25%, though “not generous”,
was reasonable in the circumstances,
given that the guilty pleas were virtually inevitable.The case against the two
appellants, apprehended
at the airport with tablets strapped to their legs, had
been overwhelming.While they had assisted the police in the attempted
“sting”
operation, and it was accepted they were entitled to credit
for that, the operation had not been successful.There was no evidence
that
either appellant had suffered any particular adverse consequences from providing
the assistance. |
| [16] | As to the minimum
non-parole period, counsel submitted that the Judge had been plainly correct to
consider that the importation of
class B drugs on this scale, with widespread
potential for harm to the community, was “sufficiently serious” to
warrant
imposition of a minimum period.Methamphetamine was a very pernicious
drug.In this case a large quantity had been imported.This Court
in R v
Brown [2002] 3 NZLR 670 had expressly noted (at para [32]) that serious
actual or intended consequences might be important in cases involving
major drug
dealing.It was further submitted that a non-parole period of two-thirds (the
“ceiling” prescribed under s86(4))
was available in the
Judge’s discretion in order to punish, denounce and deter the offending.Counsel said that there was reason
to believe that New Zealand was being
targeted by organised drug cartels based in Asia, although it was not suggested
that the appellants
were members of any such group.The sentence must send a
message that New Zealand is not a “soft touch” in this area.It
was
submitted that the exercise of fixing a minimum period was not a “mini
sentencing” requiring articulated discounts
for pleas of guilty and the
like.A two-thirds period was not the equivalent of a maximum penalty reserved
for the worst class of
cases and should not be regarded as an unusual outcome.In many cases a non-parole period less than that would be inadequate to reflect
the objectives of sufficient denunciation, punishment and
deterrence. |
| [17] | This was in its totality an
importation on a major scale which would have attracted for those involved in
its organisation a sentence
well above a starting point of 10 years.We are,
however, of the view that the Judge’s starting point was too high for
offenders
acting only as couriers upon one occasion.Because of the limited
role played by the appellants, the starting point for them ought
not to have
exceeded nine years.We are conscious that a starting point of 12 years was
apparently approved for the sentencing of
a courier in Lam.But it
appears that his involvement was greater (he had travelled to Holland to pick up
the drugs before coming to New Zealand).He
was also personally carrying drugs
of greater value than those which were carried in aggregate by these appellants.
(We agree with
the Judge that they should not be treated for sentencing purposes
as having acted jointly.)Mr Lam was also to earn a larger remuneration
than
either of them.We have to say also that we have had some difficulty in
reconciling Lam with Wallace, which is the case by which
sentencing Judges should continue to be guided, though recognising that the
sentence actually imposed
on Mr Wallace was said by this Court in R v Van
Lent, CA166/99, 29 September 1999, to have been relatively lenient.It is
to be remembered that the guidelines in Wallace are directed to persons
playing a role in the organisation of the criminal
activity. |
| [18] | We consider that from a proper
starting point of nine years there had to be a deduction recognising the early
guilty pleas, which
saved the cost of a trial (no more than 10-15% was required
because the trial could have had no other outcome but guilty verdicts)
and, more
significantly, for the cooperation with the police which must place the
appellants in some danger upon their deportation
to Hong Kong after serving
their sentences.It does not count against them that, although they co-operated
in apparent good faith,
the principal offenders were not caught.Overall, a
reduction of one-third from the starting point is appropriate.Thus we have
concluded
that the net sentences should have been terms of imprisonment of six
years for each appellant. |
| [19] | We now move to
the minimum non-parole period.The first question is whether, as s86 of the
Sentencing Act requires, the Judge could
be satisfied that the circumstances of
the offence were “sufficiently serious to justify a minimum period of
imprisonment that
is longer than the period otherwise applicable under s84(1) of
the Parole Act 2002”, namely one-third of the length of the
determinate
sentence, which in this case is now to be two years.In Brown this Court
noted (at para [28]) that the Parole Act had effected a reduction in the time to
be served by serious offenders, subject
to questions relating to the safety of
the community.(In the case of serious drug offenders the minimum term had
always been one-third
but the parole authorities had had a greater degree of
discretion than the Parole Board now does under the Parole Act and it is our
understanding that under the former regime it was not the usual practice to
release such offenders after one-third of the finite
sentence had been served.)We said in Brown that s86 provided a mechanism “to constrain that
outcome where the offending is so serious that release after one-third of the
sentence would plainly constitute an insufficient response in the eyes of the
community, even though there may be no ongoing safety
risk”. |
| [20] | We also indicated in Brown (at
para [29]) that subs(3) of s86, which refers to circumstances taking the offence
out of the ordinary range of offending of the
particular kind, is not intended
as an exhaustive definition of “sufficiently serious” circumstances.
Rather it indicates
the level of culpability needed for a s86 order.The
central question, we said, must be culpability, which was necessarily increased
by, inter alia, serious, actual or intended consequences – a factor
which might be important in cases involving major drug
dealing. |
| [21] | The present case does involve
major dealing in class B drugs; moreover, in a drug which Ms Markham rightly
described as pernicious.(There
is already underway a move to have Parliament
reclassify methamphetamine as a class A drug.)There have of course been much
worse
instances, such as the level of manufacturing in Wallace. The
appellants’ roles as already noted were limited.But by virtue of the
quantity and nature of drug which they helped to import,
their culpability is
such as to take the case out of the ordinary run of class B drug offending and
to make it “sufficiently
serious” in terms of s86(2).They
participated in activities intended, as they would have known, to release a
large quantity
of methamphetamine tablets into the New Zealand community and
they did so to secure a not insubstantial personal financial advantage.There
is nothing in the circumstances of the offending, as contrasted with that of the
offenders, which is to be seen as a mitigating factor.Having
said that, we
should make it clear that we do not regard their offending as qualifying as
“sufficiently serious” by more
than a relatively narrow
margin. |
| [22] | The statutory threshold having
been crossed, the next question is whether, as a matter of discretion and upon a
review of the circumstances
both of the offence and of the offenders, a
non-parole period exceeding one third should have been imposed; whether a
minimum of
two years is sufficient to punish, deter, and denounce this
offending.In our view, in a case involving a vital participation in a
major
importation of class B drugs, an effective sentence of only two years would not
be seen to do that.We take Mr Tomlinson’s
point that the discount
merited by the appellants’ cooperation with the authorities should not be
negated.We also take into
account that the serving of a prison term in this
country is harder for foreigners, especially when their command of English is
poor.We
have concluded, however, that in the circumstances of this case a
minimum term of at least three years (or 50%) is required to denounce
and punish
this offending, to deter the appellants from re-offending and to deter others
who may contemplate emulating them.That
will leave the appellants still with a
substantial benefit from their co-operation with the authorities.Had it not
been for the existence
of that co-operationthe determinate sentence and,
correspondingly, the minimum term would have been
longer. |
| [23] | The appeal is allowed.The
sentences imposed on each appellant in the District Court are quashed and
replaced by concurrent sentences
of six years on both charges.Each appellant
is ordered to serve a minimum term of three years
imprisonment. |
