Yuen v R [2010] NZCA 521 (17 November 2010)

Last Updated: 23 November 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA328/2010 [2010] NZCA 521

BETWEEN YIP MOON YUEN
Appellant

AND THE QUEEN
Respondent

Hearing: 3 November 2010

Court: Randerson, Potter and Cooper JJ

Counsel: J T Edgar and G H Vear for Appellant
B D Tantrum and D M Robinson for Respondent

Judgment: 17 November 2010 at 3 p.m.

JUDGMENT OF THE COURT

The appeal against sentence is dismissed

REASONS OF THE COURT

(Given by Cooper J)

[1] The appellant appeals against a sentence of five years, two months’ imprisonment imposed in the District Court at Auckland when he pleaded guilty to one charge of possession of methamphetamine for supply and one charge of conspiracy to possess pseudoephedrine for supply.
[2] The appellant contends that the Judge’s approach to the sentencing was flawed, and that she gave insufficient consideration to the totality principle. The result is said to be an effective term of imprisonment that is manifestly excessive.

The offending

[3] The appellant was apprehended after the police arrested a co-accused who had arrived at Auckland International Airport with a total of 3.8 kilograms of ContacNT granules containing pseudoephedrine strapped to his body, an amount sufficient to enable the manufacture of between approximately 770 grams and 1.16 kilograms of methamphetamine. The following day, the appellant telephoned the co-accused, and his call was answered by a police officer who arranged to meet him at an Auckland hotel. The appellant was apprehended in possession of $5,000 in $20 notes. His cell phone showed twelve calls had recently been made to the co-accused. A search of the appellant’s vehicle located 51.5 grams of methamphetamine in resealable bags, together with a set of scales.
[4] The methamphetamine had an estimated value of $50,000.
[5] It is relevant to note that on 12 December 2008 the appellant was convicted of wounding with intent to injure. He was sentenced to 100 hours’ community work and six months’ supervision on that charge. It is unclear on the materials available to us whether he had completed the sentence of community work by the time the current offending occurred. However, he was, at the time, still subject to the sentence of supervision.

The sentence imposed in the District Court

[6] Judge Bouchier was asked to give a sentencing indication on 23 December 2009. It was her view that the charge of possession of methamphetamine for supply justified a starting point for sentencing purposes of four years’ imprisonment and that the charge of conspiracy to possess pseudoephedrine for supply warranted a starting point of three years. She added both starting points together to arrive at a total of seven years. She then deducted 20 per cent for the appellant’s prospective guilty plea, and made a slight reduction, rounding in favour of the appellant, to arrive at an indication of five years, six months’ imprisonment.
[7] Counsel for the Crown and the appellant were evidently both of the view that that sentence would be too stern. They filed a joint memorandum in which they submitted that the Judge should reduce the starting point having regard to the totality principles set out in s 85 of the Sentencing Act 2002, and requested that she reconsider. In the meantime, the appellant pleaded guilty.
[8] When the sentence was imposed on 3 May 2010, the Judge referred to the joint memorandum of counsel and accepted that she had not ascribed “sufficient value to the totality principle” when giving the sentencing indication. She allowed for a reduction of four months on that account and sentenced the appellant to a term of five years, two months’ imprisonment.

The appeal

[9] There is no issue that the 20 per cent discount for the guilty plea was an appropriate allowance, and no suggestion that the Judge should have made a further reduction for any mitigating factors. The sole issue is whether she adopted a starting point that was too high.
[10] Mr Edgar submitted that the Judge had departed from a “conventional approach” which would have been to treat the methamphetamine offending as the lead charge, determine an appropriate starting point for that and then allow for an uplift to reflect the pseudoephedrine offending. He submitted that by taking two discrete starting points for the charges, adding them together, allowing for the 20 per cent deduction for the guilty pleas and then subtracting four months for totality, the Judge had arrived at a final sentence that was out of proportion to the gravity of the overall offending.
[11] He accepted that a four year starting point was appropriate for the methamphetamine charge, but submitted that what was a notional uplift of two years, two months for the pseudoephedrine charge, was too great. He contended that an uplift of approximately 12 months from the four year starting point was all that was necessary to reflect the totality of the offending. In the result, with a 20 per cent reduction for the guilty plea, the outcome should have been a final sentence of four years’ imprisonment.
[12] Mr Tantrum argued that the sentences imposed were not manifestly excessive. He submitted that the four year starting point for the methamphetamine offending was generous to the appellant and that a starting point in the region of five to six years would not have been excessive. In that context, the Judge’s “overall” starting point of seven years was not clearly excessive, and was consistent with tariffs set by this Court. Mr Tantrum also noted that the Judge had not weighted the sentence, as she might have done, to reflect the fact that the offending occurred when the appellant remained subject to the sentence of supervision.

Discussion

[13] This Court has said on numerous occasions that the basis on which a sentence has been constructed is not the material consideration on appeal. What matters is whether the sentence ultimately arrived at is appropriate. The approach was put succinctly in R v Williams:[1]

We reject the argument that there is a particular way in which total sentences must be put together in respect of multiple offending. The issue is what is an appropriate total sentence for the various charges which have been admitted or proved. How that is constructed in the particular circumstances is a matter of individual discretion and assessment.

In the present case it may well be that many Judges would have adopted the sentencing methodology that Mr Edgar maintains should have been followed, treated the methamphetamine charge as the lead offence, fixed an appropriate starting point for that offence and provided an appropriate uplift on that starting point to reflect the second charge. Having said that, we do not consider that the approach the Judge took in this case could be described as wrong. Nor are we of the opinion that the final sentence at which she arrived can properly be described as clearly excessive.

[14] The appellant was apprehended in possession of 51.5 grams of methamphetamine packaged for sale. This placed the offending comfortably within band 2 of the sentencing bands set out in R v Fatu.[2] Mr Edgar maintained that the appellant was a problem gambler and that the offending took place in the context of his need to feed that habit. That simply underlines the commercial nature of the offending, and indicates that a four year starting point was well within the range available to the Judge, considering that offending on its own.
[15] The pseudoephedrine offending was also significant. The offence attracts a maximum penalty of six years’ imprisonment. The amount of ContacNT in the possession of the appellant’s co-accused was very substantial, and was sufficient to enable the manufacture of methamphetamine with an estimated street value of between $772,000 and $1.159 million. In our view, that would have justified an uplift of at least 18 months to the starting point adopted for the charge of possession of methamphetamine for supply, possibly more.
[16] It is then necessary to bring into account the fact that at the time the offending occurred the appellant was subject to a sentence of supervision. An increment of six months for that consideration could not have been criticised. The result of this more “conventional” approach, after providing for a 20 per cent reduction, would be a final sentence of approximately four years ten months’ imprisonment, and possibly a longer term depending on the uplift applied for the pseudoephedrine offending.
[17] That analysis has the necessary consequence that the sentence in fact imposed was within the available range and cannot properly be characterised as manifestly excessive.

Result

[18] The appeal against sentence is dismissed.

Solicitors:
Public Defence Service, Auckland for Appellant
Crown Law Office, Wellington for Respondent

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[1] R v Williams CA91/00, 31 May 2000 at [11].
[2] R v Fatu [2006] 2 NZLR 72 (CA).