Chen v R [2010] NZCA 552 (24 November 2010)

Last Updated: 30 November 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA451/2010 [2010] NZCA 552

BETWEEN JIN SHAN CHEN
Appellant

AND THE QUEEN
Respondent

Hearing: 1 November 2010

Court: Randerson, Potter and Cooper JJ

Counsel: J Haigh QC and G J Newell for Appellant
B D Tantrum for Respondent

Judgment: 24 November 2010 at 4.30 p.m.

JUDGMENT OF THE COURT

A The appeal against sentence is allowed in part.

2. The order made in the District Court that the appellant serve a minimum term of eight years’ imprisonment is quashed.
   

100. It is ordered that the appellant serve a minimum term of seven years’ imprisonment.
     

4. The overall effective sentence of thirteen years and six months’ imprisonment is undisturbed.
   

REASONS OF THE COURT

(Given by Cooper J)

[1] On 25 March 2010 the appellant pleaded guilty to:

(a) Two charges of possession of methamphetamine for the purpose of supply.

(b) One charge of importation of methamphetamine.

[2] The two charges of possession of methamphetamine for supply related to different offence dates. The first offence was committed on 18 March 2009 and the second on 14 July 2009, the same date on which the importation occurred.
[3] Judge Andrée Wiltens sentenced the appellant in the District Court to imprisonment for a term of 13 years and six months.[1] He ordered that the appellant serve a minimum of term of eight years’ imprisonment.
[4] The appellant now appeals on the basis that the sentence imposed was manifestly excessive. Further, the appellant claims that no minimum term should have been imposed or, if one was appropriate, that the length of the minimum term required to be served (being just under 60 per cent of the total term) was itself manifestly excessive.

The facts

[5] According to the summary of facts, which was accepted by the appellant at the time of sentencing, on the evening of Wednesday 18 March 2009 he went with another person to an address in Otahuhu where he obtained a quantity of methamphetamine from an associate. Later that evening he and another associate began the process of weighing the methamphetamine and placing it into “ounce” bags. He was stopped by the police when leaving the property where he had been placing the methamphetamine in bags and his car was searched. However, nothing was found.
[6] The following morning, the police executed a search warrant at his home. In a spare bedroom the police located a bag which contained 18 plastic snap-lock ounce bags of methamphetamine which had been hidden under the drawers of an office desk. A further plastic snap-lock ounce bag of methamphetamine was located underneath a side table next to the bed. The methamphetamine was a distinctive yellow colour, and each bag weighed between 28 and 29 grams. Secreted in the underwear of an associate were a further 20 “ounce” bags of methamphetamine with the same distinctive yellow colour. Each bag again weighed between 28 and 29 grams. A total of 1,092 grams of methamphetamine was located, packaged in 39 separate bags. It is estimated that the methamphetamine could have been sold for about $540,000.
[7] On 10 July 2009 a package was intercepted by New Zealand Customs at the International Mail Centre. The package was found to contain 997.8 grams of methamphetamine. On the morning of Tuesday 14 July 2009 a controlled delivery operation involving customs and police staff was conducted. The bulk of the methamphetamine was removed leaving only a small amount within the package. At about 7.30 a.m. the package was delivered to the property to which it had been addressed in Avondale, but the package was turned away by the occupants. Later in the morning New Zealand Post was contacted regarding the package and the callers arranged to collect it from the mail centre at Rosebank Road, Avondale. Two associates of the appellant took the parcel to the appellant’s address. The appellant removed the contents of the parcel. A short time later the police searched the property and located the methamphetamine as well as a further 900 grams divided into ounce bags, hidden in a DVD player. On the basis of these events, the appellant was charged with importation, and possession for supply of the further 900 grams.
[8] Overall, the offending in March and July involved a total quantity of approximately 2,990 grams of methamphetamine.
[9] The appellant was first arrested on 18 March 2009 when he was charged with the first count of possession for supply. Having initially been refused bail, he was released on bail subject to electronic monitoring on 6 May 2009. On 14 July 2009 when he was arrested and charged in respect of the two further offences, he was remanded in custody. Then, on 27 July 2009, the charge relating to the March offending was withdrawn on the grounds of evidential insufficiency. An application that he be readmitted to electronic bail was declined and that decision was upheld in the High Court on appeal on 18 December 2009. On 8 March 2010 the police laid a new charge of possession for supply arising out of the 18 March 2009 incident. On 10 March the appellant gave written notice that he wished to plead guilty under s 160 of the Summary Proceedings Act 1957 to the new charge. He entered a guilty plea later that day. On 25 March 2010 he pleaded guilty to the charges of importation and possession of methamphetamine for supply arising out of the July offending.
[10] The sentencing followed on 25 June 2010.

The sentence

[11] The Judge noted a submission that Mr Newell, acting for the appellant, made at sentencing that there was no evidence that the appellant was a mastermind, organiser or senior manager. While he agreed with those propositions, he also accepted a submission made to him by the Crown that the appellant was not to be sentenced on the basis that he was “near the bottom end of whatever chain is involved”. There were others involved in the importation of the methamphetamine, but the Judge thought it significant that the drugs had been given to the appellant for storage and on-sale. The Judge also noted that the methamphetamine had been packaged in ounce bags as opposed to “point” bags, so that it was obvious the appellant was going to sell the methamphetamine to others who would again on-sell it. Consequently, he accepted the prosecution’s submission that he was a trusted member of the group, and that his culpability was significantly higher than that of a street dealer or a courier.
[12] The Judge referred to this Court’s decision in R v Fatu[2] and noted that the offending clearly came within band 4 because it involved the importation of a very large quantity of more than 500 grams. He noted both the prosecution submission that the starting point for the offending should be a term of imprisonment for 22 years and the defence submission that a much lower starting point should be adopted. The reasoning which led him to adopt a starting point of 18 years’ imprisonment for the overall offending was set out at [11] and [12] of the sentencing judgment.

[11] The best that I can do in terms of a starting point for this offending is to make my own assessment of the facts, the quantity involved, and your culpability, and I do that having due regard to the plethora of previous authorities. Fatu prescribes that for more than half a kilogram of methamphetamine being imported the minimum period is 12 years’ imprisonment. You have imported almost exactly twice that amount. For that offending I adopt a starting point of 15 years’ imprisonment. I do that bearing in mind not only the quantity but your culpability, which I have indicated already I cannot describe precisely but is significantly higher than that of any street dealer.

[12] As well as that, in terms of the July offending you were [found] to be in possession of further methamphetamine, therefore an uplift is warranted to reflect that offence. That uplift will be a further 18 months’ imprisonment. There is then the third aspect of your offending, namely the March possession for supply of slightly over a kilogram of methamphetamine. For that offending there will be a further uplift of a further 18 months. In terms of the offending therefore I adopt a starting point of 18 years imprisonment on a totality basis for all three aspects of your offending.

[13] The Judge then turned to the appellant’s personal circumstances. He acknowledged that he was a family man with three young children and that he had shown genuine remorse. He also noted that the appellant was a user of methamphetamine himself as well as being addicted to gambling. He referred to the appellant’s previous convictions, finding they were not relevant and did not warrant any uplift to the starting point.
[14] He allowed a discount of 25 per cent in respect of the guilty pleas, noting that in respect of the March 2010 offending the plea had been entered as soon as possible after the charge was relaid. In the result, the Judge arrived at a final term of 13 and a half years’ imprisonment. He imposed that sentence on all three charges directing that the terms be served concurrently.
[15] He then turned to the question of the minimum non-parole period. He noted Mr Newell’s submission that the appellant was a New Zealand citizen with strong family support and that the possibility of early release on parole should be preserved. However, he then said:

[17] The factors that weigh most heavily in my mind in relation to this are the pernicious nature of the offending itself. Methamphetamine is a scourge. It is affecting more and more members of our society in a manner which makes them behave in illegal ways. Not only as a result of having consumed this particular product, but also in order to obtain it to consume it. The enormous amount of methamphetamine that you were involved with indicates that a significantly large portion of our community would have been affected by this scourge had you not been apprehended. As well as that you were found in possession of significant quantities of methamphetamine in March and in July, so at two particular points of time. That indicates a certain determination by you to continue to offending[sic] in this way. In all the circumstances I am satisfied that it is warranted to impose a minimum non-parole period in your particular case. I could impose a minimum non-parole period of up to two thirds of the sentence imposed, which would be nine years. In the circumstances I am imposing a term of eight years, because I am obliged to consider the least restrictive outcome and what Mr Newell has said has some merit in that you have associations with New Zealand and good family support.

The starting point

[16] Mr Haigh QC submitted that the starting point of 15 years that the Judge adopted in respect of the importation offence was too high. He acknowledged that the further uplifts of 18 months’ imprisonment in respect of each of the other charges on which the appellant was sentenced were appropriate, to reflect the totality of the offending. However, he submitted that the starting point for the importation offence would have been more appropriately set at about 13 years and six months. He also accepted that the 25 per cent reduction for the guilty pleas was appropriate. However, he submitted that should be deducted from the lower starting point, resulting in a final sentence of about 12 years.
[17] The argument that the starting point of 15 years was too high was based in part on the fact that the Judge was unable to be precise about the appellant’s place in the hierarchy of those involved in the importation operation. The Judge accepted Mr Newell’s submission at sentencing that there was no evidence that the appellant was, as the Judge put it “truly a mastermind, an organiser, or a senior manager”. However, he also concluded that the appellant was “nowhere near the bottom end of whatever chain is involved”. Mr Haigh referred to the decision in R v Wong[3] where the Court said:

[13] The appellant’s role is particularly relevant. At the lowest end of culpability will be the courier or “mule”. In cases where the offender’s involvement has been to collect or receive a package the Court has referred to the role as that of “catcher”, and regarded it as more serious than a courier: R v Nguyen[4] at [11]. In the present case the appellant’s involvement as recorded in the summary of facts could be said to be more than that of “catcher”. The appellant was observed and his communications monitored over a period of weeks. He was involved in arranging the apartment, had ongoing communications with the overseas connections and arranged for the drugs to be forwarded to his address. He was then caught in possession of them. While the appellant was not a “Mr Big”, the Judge was right to categorise him as equivalent to a manager or organiser.

[18] On the facts of that case, this Court upheld a starting point of 15 years in respect of the importation of about two kilograms of methamphetamine. Mr Haigh submitted that in this case the appellant could not properly be described as an organiser, and noted that significantly less methamphetamine had been imported.
[19] In R v Fatu this Court classified as band 4 those cases which involve the importation of “very large commercial quantities” of methamphetamine. That description applies where the amount imported is 500 grams or more. Such cases warrant sentences of between 12 years to life imprisonment. This Court said:[5]

We emphasise that these bands are otherwise applicable to all who import methamphetamine, including those whose roles are as “mules”. Obviously the more significant the role of the offender in any importation, the closer the appropriate sentence will be to the top end of the relevant sentencing band.

[20] Here, the amount of methamphetamine imported was substantial, approximately twice the threshold at which band 4 starts. The Judge constructed the sentence on the basis that the importation charge was the lead offence and it was therefore necessary to arrive at a starting point which reflected the overall gravity of the appellant’s offending. As we have noted the Judge did this by providing for uplifts of 18 months in respect of the two charges of possession of methamphetamine for supply which was generous to the appellant having regard to the quantities involved.
[21] It is of course necessary to consider not only the amount of methamphetamine involved, but also the role of the offender. The Judge concluded having regard to the summary of facts that the appellant should be sentenced on the basis that his role was significantly above that of a courier. In our view, that approach was justified. He was more than a catcher, because not only was he receiving the methamphetamine but he was also packaging it into bags for supply. Others conveyed the imported methamphetamine to him for that purpose. He was placing the methamphetamine into one ounce bags. That indicates that he was intending to on-supply to wholesalers.
[22] Further, it was necessary that the sentence reflect the aggravating factor that the importation charge and the second charge of possession for supply concerned conduct that occurred when the appellant was on bail in respect of the first possession for supply charge. That was a point to which the Judge did not specifically refer in fixing the starting point (although he did mention it in explaining his decision concerning the minimum term). In all the circumstances, we do not regard the overall starting point of 18 years as too high.
[23] Since there can be no criticism of the 25 per cent reduction allowed for the mitigating factors, the appeal against the overall sentence of 13 years and six months’ imprisonment cannot succeed.

Imposition of a minimum term

[24] The appellant contended that no minimum term was required, and that the length of the sentence in itself was sufficient to reflect the relevant considerations under s 86(2) of the Sentencing Act 2002. Mr Haigh also referred to the obligation of the Judge, in exercising the discretion given by s 86(2), to be satisfied that the minimum period of imprisonment that would generally apply under the Parole Act 2002 is insufficient for the purposes set out in s 86(2). In this case, Mr Haigh submitted that it was not necessary to impose a minimum term to protect the community because the appellant had been assessed in the pre-sentence report as posing a low risk of re-offending.
[25] Section 86 of the Sentencing Act provides:

86 Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment

(1) If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular sentence.

(2) The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:—

(a) holding the offender accountable for the harm done to the victim and the community by the offending:

(b) denouncing the conduct in which the offender was involved:

(c) deterring the offender or other persons from committing the same or a similar offence:

(d) protecting the community from the offender.

(3) [Repealed.]

(4) A minimum period of imprisonment imposed under this section must not exceed the lesser of—

(a) two-thirds of the full term of the sentence; or

(b) 10 years.

(5) For the purposes of Part 4 of the Summary Proceedings Act 1957 and Part 13 of the Crimes Act 1961, an order under this section is a sentence.

[26] Mr Haigh acknowledged that in R v Aram[6] this Court said that in cases of very serious drug offending it is “almost invariable” that the criteria for a s 86 order are made out.
[27] In R v Anslow[7] this Court referred to a survey of over 70 decisions of the High Court in the period from August 2003 to October 2005. The survey demonstrated that minimum periods of imprisonment had seldom been ordered when the finite term imposed was less than nine years’ imprisonment but had commonly been imposed when the finite term was nine years or greater.
[28] In R v Zhou[8] this Court observed that:

... the pervasive and pernicious influence of methamphetamine in New Zealand society is such that the usual MPI of one-third applicable under the Parole Act 2002 will most often be insufficient to meet the statutory purposes identified in s 86(2) in cases of large scale offending.

[29] This Court also observed in that case that, when considering the imposition of a minimum term under s 86(2), the sentencing Judge must reconsider the statutory purposes of accountability, denunciation, deterrence and protection of the community. Even if, as the pre-sentence report in this case indicated, the appellant himself might pose a low risk of re-offending, that is only one aspect of the considerations necessary under s 86(2).
[30] In the present case, we are in no doubt that there were valid reasons for imposing a minimum term and therefore this aspect of the appeal also fails.

The length of the minimum term

[31] The appellant contends that at just under 60 per cent of the sentence, the minimum term imposed was too great. The appellant’s counsel had diligently prepared a schedule setting out the results of a survey they had undertaken of all High Court sentencing decisions of which they were aware involving offending in the fourth sentencing band of Fatu. The table comprised both High Court decisions and decisions of this Court where there was an appeal. On the basis of this survey, counsel submitted that:

(a) In the great majority of cases where a minimum term was imposed, it was pitched between 40 and 50 per cent of the total term.[9]

(b) In a number of cases no minimum term was imposed.[10]

(c) Insofar as counsel could ascertain, the minimum term imposed by the Judge in the present case was the longest minimum term (as a proportion of the total sentence) ever imposed for offending of this type.

(d) There were only four cases in which a minimum term of more than 50 per cent of the total term had been imposed.[11]

[32] Counsel submitted that a minimum term of greater than 50 per cent of the sentence had generally been reserved for cases of large scale offending by a principal offender where there were few mitigating features and little chance of reform.
[33] Mr Haigh relied on the decision in R v Wang[12] in which this Court observed with respect to the length of the minimum term that:

... the sentencing Judge is required to take into account the purposes of sentencing, including aggravating and mitigating features, which is a similar exercise to settling the finite term. A review of the circumstances of the offence and the offender is required.

[34] Mr Haigh also drew an analogy to cases where a sentence of life imprisonment is imposed for murder. In that case s 103(2) of the Sentencing Act 2002 provides that the minimum term of imprisonment ordered may be not less than ten years. Here, the Judge imposed a minimum term of eight years, or 80 per cent of the maximum that a person convicted of murder would generally have to serve under s 103(2).
[35] For the Crown, Mr Tantrum referred to a number of analogous cases where sentencing judges and this Court[13] had ordered the defendant to serve a minimum period of imprisonment of 50 per cent of the sentence. However, he submitted that the imposition of the 59 per cent minimum term in the present case was within the sentencing Judge’s discretion, having regard to the amount of methamphetamine found, the comparatively high level role played by the appellant in the organisation involved in dealing with the drug and the repeated nature of the offending.
[36] Under s 8(e) of the Sentencing Act, the Court must take into account the “general desirability of consistency” with the sentences imposed on other offenders in similar circumstances. That obligation applies not just in relation to fixing the term of imprisonment, but also to the extent of any minimum term that is to be imposed. Having regard to the decisions of this Court referred to by counsel and the High Court decisions surveyed we are satisfied that a minimum term in the vicinity of 50 per cent would have been justified. Considerations tending against any longer minimum term include the appellant’s guilty pleas; the fact that although apparently well above the bottom rung of those involved in the methamphetamine dealing, he was not at the very highest level; the fact that he is apparently remorseful and regrets his involvement in the offending; and that he has no relevant previous offending.

Result

[37] For these reasons, we allow the appeal in part. We quash the Judge’s order that the appellant serve a minimum term of eight years’ imprisonment. In substitution for that, we order that the appellant serve a minimum term of seven years. The overall effective sentence of 13 years and six months’ imprisonment is undisturbed.

Solicitors:
Stephen Anderson, Auckland for Appellant
Crown Law Office, Wellington for Respondent

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[1] R v Chen DC Manukau CRI-2010-092-3275.
[2] R v Fatu [2006] 2 NZLR 72.
[3] R v Wong [2009] NZCA 332.
[4] R v Nguyen HC Auckland CRI 2008-092-2791, 14 November 2008.
[5] At [36].
[6] R v Aram [2007] NZCA 328 at [78].
[7] R v Anslow CA182/05, 18 November 2005.
[8] R v Zhou [2009] NZCA 365 at [19].

[9] The cases referred to were: R v Tanakura HC Auckland CRI-2010-004-4085, 25 May 2010; R v Voong HC Auckland CRI-2007-004-22697, 1 July 2010; R v Luo HC Auckland CRI-2007-004-22697, 1 July 2010; R v Wong HC Auckland CRI-2007-004-15010, 3 April 2009; R v Yeung HC Auckland CRI-2006-092-010945, 27 August 2009; R v Ang HC Auckland CRI-2008-004-12540, 18 November 2008.

[10] R v He HC Auckland CRI-2008-004-25021, 11 December 2009; R v Nguyen HC Auckland CRI-2008-092-2364, 1 December 2009; R v Chen-Wei HC Auckland CRI-2006-019-8458, 8 May 2009; R v Chavannes HC Hamilton CRI-2007-019-6454, 29 August 2008; R v Law HC Auckland CRI-2008-004-6039, 13 May 2008; R v Lau HC Auckland CRI-2005-092-2600, 16 December 2005.

[11] R v Zhou [2009] NZCA 365; R v Collins HC Auckland CRI-2007-090-005304, 3 March 2009; R v Nuku HC Wellington CRI-2008-085-9114, 13 February 2009; R v Murphy CA198/05, 23 November 2005.
[12] R v Wang [2009] NZCA 118.
[13] R v Tanakura; R v Voong; R v Wong; R v Ang.