Lam v R [2012] NZCA 280 (27 June 2012)

Last Updated: 5 July 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA787/2011 [2012] NZCA 280

BETWEEN KA WING LAM Appellant

AND THE QUEEN Respondent

Hearing: 21 June 2012

Court: Randerson, Lang and Clifford JJ

Counsel: N Leader and K M P Noordhof for Appellant J M Jelas for Respondent

Judgment: 27 June 2012 at 11.30 a.m.

JUDGMENT OF THE COURT

A The appeal against sentence is allowed.

2. The sentence of eight years and six months imprisonment is quashed. A sentence of eight years imprisonment is substituted on each of the four counts of importing methamphetamine and two years imprisonment on the count of possession of methamphetamine for supply. All terms are to be served concurrently. The minimum period of imprisonment of two thirds (five years eight months) is also quashed and a minimum period of imprisonment of 50 per cent (four years) is substituted on each of the importing counts.
   

REASONS OF THE COURT

(Given by Clifford J)

Introduction

[1] The appellant, Mr Lam, pleaded guilty to four separate charges of importing methamphetamine (weighing some 1.89 kg in total), and one charge of possession of methamphetamine for supply. He was sentenced by Judge Gibson in the District Court at Auckland on 1 November 2011 to eight years and six months imprisonment, and ordered to serve a minimum period of two thirds of that sentence, namely five years and eight months.[1] He now appeals his sentence as being manifestly excessive.

Facts

[2] The Judge sentenced Mr Lam on the basis of an agreed summary of facts. This recorded that in early July 2011 Customs intercepted a parcel containing some 650 grams of methamphetamine (described as bath salts) addressed to a Tong Lam at an address in Mt Albert. It would appear that a courier tried to deliver the package to that address, but was unable to do so and left a courier calling card. Mr Lam subsequently arrived at the courier office, produced that calling card and his Hong Kong passport to prove his identity, and uplifted the package. Later that day, the police called at the address in Mt Albert where they located Mr Lam. Mr Lam cooperated with the police, admitted his identity and that he had received the package in question.
[3] The police also found an additional 336 grams of methamphetamine, which Mr Lam admitted having received in similar fashion. Mr Lam also told the police he had received two other courier packages in June, containing 500 and 400 grams of methamphetamine respectively. Other than stating he had unpacked those two earlier packages and weighed them, and that they were no longer in his possession, there is no information in the summary of facts that indicated what he did with, or what happened to, that methamphetamine.
[4] Mr Lam first appeared in Court on 7 July 2011 on two charges of importation and one charge of possession of methamphetamine for supply. Those charges we understand related to the methamphetamine found in Mr Lam’s possession the previous day.
[5] On 28 July he appeared for the first time on two additional charges of importation, namely the methamphetamine he had admitted to the police receiving earlier.
[6] On that day, a sentence indication hearing was sought. On 8 September 2011 Mr Lam received a sentence indication from the Judge of a final sentence of 13 years and five months imprisonment, with a 50 percent minimum period of imprisonment. That sentence was the result of a starting point of 16 years for the importation charges, an uplift of one year for the possession for supply charge and a reduction of 20 per cent should guilty pleas be entered. The Judge noted at that time that a further discount for assistance to the authorities could be given at sentencing. That sentence indication was not accepted by Mr Lam. But the Court was advised that Mr Lam intended to plead guilty none the less and guilty pleas were, in fact, entered on 15 September 2011.
[7] Mr Lam is 23 years old. He admitted coming to New Zealand for the purpose of facilitating the importation of methamphetamine in order to make money for himself. He has no family in New Zealand and his immediate family reside in Hong Kong. He says he wanted to make that money to help his family and was introduced in Hong Kong to drug dealers.

Sentencing decision

[8] The Judge assessed Mr Lam’s role in the importation of this methamphetamine as being more than a “mere mule or catcher”.[2] Rather, Mr Lam’s role was “more equivalent to an organiser or facilitator in terms of the importation”. The Judge accepted, however, that Mr Lam was not “a Mr Big”. The Judge fixed Mr Lam’s starting point sentence as being one of 16 years imprisonment on the four charges of importation, with an uplift of a year to take into account the charge of possession for supply, resulting in an end starting point of 17 years imprisonment. The Judge allowed Mr Lam a discount of 20 per cent on account of his guilty pleas and then, taking all things into account in respect of which Mr Lam was entitled to discounts, he fixed an overall discount of 50 per cent – resulting in an end sentence of eight years and six months imprisonment. Given the amount of drugs involved, and that only approximately one half of that amount had been recovered, the Judge considered that a minimum non-parole period was called for. He set that minimum non-parole period at the maximum available, namely two thirds of the end sentence.

Grounds of appeal

[9] Mr Lam appealed his sentence as manifestly excessive because:

• (a) the 17 year starting point was too high;
• (b) the Judge gave insufficient discount for mitigating factors; and
• (c) the Judge erred by imposing a minimum period of imprisonment (MPI) of two thirds.

Analysis

[10] For Mr Lam, Mr Leader accepted at the outset of the hearing of Mr Lam’s appeal that the discount provided by the Judge to Mr Lam of 50 per cent was, in the circumstances, the appropriate one. We agree, and do not consider that issue further.
[11] For the Crown, Ms Jelas in her written submissions accepted that the MPI should be reduced to 50 per cent, as had earlier been indicated by the Judge. Mr Lam had not accepted the earlier indication, and therefore the Judge was not bound by that indication. Nevertheless the Crown acknowledged that it was best practice for sentencing indications to be followed by sentencing Judges, unless new information had emerged that materially affected the basis of the sentencing. Here, the only new facts that had come to light between the sentence indication and the sentencing itself related to Mr Lam’s assistance to the Hong Kong authorities. Moreover, the Crown had not altered its submission that a MPI of around 50 per cent was appropriate. The Judge had not identified any reasons for increasing the MPI from that indicated earlier. It was therefore by reference to that earlier indication, and the desirability of consistency with similar cases, that the Crown acknowledged the appropriateness of reducing the MPI to 50 per cent. We consider that was a proper acknowledgement by the Crown. In the circumstances, and bearing in mind the purposes for which a MPI is imposed, we also think that a 50 per cent MPI is appropriate here.
[12] We therefore turn to the issue which was argued before us, namely whether the starting point of 17 years identified by the Judge was manifestly excessive.
[13] In arguing that it was, Mr Leader focussed on the uplift of one year imposed by the Judge by reference to the charge of possession for supply laid as regards the methamphetamine in Mr Lam’s possession when the police called at the Mt Albert address. Mr Leader’s submission was that the criminality associated with that charge was effectively reflected in the two importing charges. Mr Lam’s role was that of a “catcher”, that is a person who receives an initial delivery of methamphetamine into New Zealand. It is implicit that the methamphetamine in question was being imported for the purposes of supply. Therefore to uplift the 16 year starting point, which Mr Leader accepted as being within range, even if high, had resulted in a manifestly excessive starting point. Mr Leader based that particular submission on a proposition that, generally speaking, where charges of importation and possession for supply are laid in respect of the same methamphetamine, no uplift is imposed as regards the possession for supply charge.
[14] For the Crown, Ms Jelas’ submission was that a charge of possession for supply can reflect the additional criminality associated with a catcher doing something more than merely having accepted or “caught” the methamphetamine being imported. The charge of possession for supply, on the facts of this case, reflected the additional criminality – at least as regards the 336 grams found packed in a zip lock bag – of Mr Lam being more than being a mere catcher.
[15] The Misuse of Drugs Act 1975 recognises in s 6 the separate crimes of importing, possessing for supply and supplying, or selling, controlled drugs. As a matter of principle, therefore, it is clear that separate charges may be laid under those provisions reflecting distinct criminal conduct, and attracting culpability, accordingly. At the same time, there will no doubt be situations where – for individuals such as Mr Lam – the fact of possessing methamphetamine will not by itself add much, if anything, to the criminality associated with their role in the importation of that methamphetamine.
[16] We were referred to a number of cases involving various factual scenarios where charges of importation and possession for supply were laid.[3] We were in effect invited by Mr Leader to reach some general conclusion that, particularly as regards those people known as “catchers”, an uplift for possession for supply was not generally appropriate over and above a starting point sentence which addressed the criminality of the importation of the methamphetamine in question. We do not think it is necessary or appropriate in this case to reach a conclusion as to whether or not – as a matter of principle – that is conceptually correct.
[17] Rather, we are satisfied that the starting point of 16 years identified by the Judge was appropriate, albeit at the upper end of the range, to reflect Mr Lam’s overall culpability for the offending. We think the addition of the one year uplift took the starting point sentence outside the available range and that it did result in a sentence that was manifestly excessive.
[18] Applying the 50 per cent discount that, in the circumstances, Mr Leader acknowledged was correct, we determine that the original end sentence of eight and a half years imposed by the Judge should be quashed and an end sentence of eight years imprisonment on each of the four counts of importing methamphetamine and two years imprisonment on the count of possession of methamphetamine for supply imposed in its place, all terms to be served concurrently. Proceeding on the basis accepted as appropriate by the Crown, the minimum period of imprisonment of two thirds is also quashed and a minimum period of imprisonment of four years (50 per cent) is substituted on each of the importing counts.

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

---

[1] R v Lam DC Auckland CRI-2011-004-12655, 1 November 2011.
[2] At [22].

[3] Chen v R [2010] NZCA 552; R v Wong [2009] NZCA 332; R v Graaf [2007] NZCA 43; R v Wang [2009] NZCA 118; Choi v R [2011] NZCA 237, (2011) 25 CRNZ 262; and R v Doull [2012] NZHC 1048.