Wei v R [2012] NZCA 54 (2 March 2012)

Last Updated: 8 March 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA129/2011 [2012] NZCA 54

BETWEEN KUN WEI Appellant

AND THE QUEEN Respondent

Hearing: 15 February 2012

Court: Stevens, Ronald Young and Andrews JJ

Counsel: S D Cassidy for Appellant M J Lillico for Respondent

Judgment: 2 March 2012 at 4.00 pm

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.
____________________________________________________________________

REASONS OF THE COURT
(Given by Andrews J)

Introduction

[1] After a trial before Courtney J and a jury the appellant, Mr Wei, was found guilty on three counts (counts 3, 5 and 6 in the indictment) of supplying the class A controlled drug methamphetamine. He was acquitted on three further counts of supplying methamphetamine. He was sentenced to imprisonment for ten years and six months, and ordered to serve a minimum period of imprisonment of 50 per cent of the sentence.[1]
[2] The appellant has appealed against conviction on the grounds that the jury’s verdict on count five was unreasonable having regard to all the evidence.[2] He has appealed against the sentence on the grounds that it is manifestly excessive. The appellant also contends that the Judge should not have imposed a minimum period of imprisonment.

Background facts

[3] The charges against the appellant arose out of police operations which involved surveillance and the interception of communications between a group of people suspected of dealing in methamphetamine. The Crown case at the appellant’s trial was that the group represented part of a supply chain for distributing methamphetamine, and that the appellant was near the top of the chain. The Crown put to the jury that the appellant obtained large quantities of methamphetamine and then supplied the drug to a Ms Nguyen. Ms Nguyen in turn supplied methamphetamine to Mr Crichton, who on-supplied it to dealers, who then supplied it at street level.
[4] Ms Nguyen pleaded guilty to seven counts of supplying methamphetamine to Mr Crichton. She was sentenced to six years imprisonment.[3] Ms Nguyen was called as a witness for the prosecution and gave evidence against the appellant at his trial. Mr Crichton pleaded guilty to one representative charge of supplying methamphetamine and was sentenced to seven years imprisonment (to be served cumulatively on a term of imprisonment imposed in 2009).[4]
[5] On count three, the appellant was found guilty of supplying methamphetamine on or about 24 May 2007. On count five he was found guilty of a supply on or about 3 June 2007, and on count six, he was found guilty of a supply on or about 11 June 2007.

Was the verdict on count five unreasonable?

[6] The Crown case for count 5, which alleged that the appellant supplied methamphetamine to Ms Nguyen on or about 3 June 2007, was based on evidence of intercepted telephone calls between Ms Nguyen and Mr Crichton, surveillance of Ms Nguyen on 3 June 2007, and evidence given by Ms Nguyen. In her evidence-in-chief, Ms Nguyen said that on instructions from her then boyfriend Mr Kha, who was serving a term of imprisonment, she bought “ice” (methamphetamine) from the appellant (who she referred to as “Ben”) and sold it to “DC” (Mr Crichton). She also said she did not obtain drugs from anyone other than the appellant, and that each time she obtained methamphetamine from the appellant it was in quantities of eight to ten ounces (approximately 227–284 grams). Mr Crichton would call her first, she would obtain the drugs and provide them to him, then he would pay her $10,500 per ounce.
[7] On 3 June 2007 Ms Nguyen was observed driving to an address connected to Mr Crichton in South Auckland, then to the appellant’s shop in Auckland. She was seen entering the shop with a full, heavy shopping bag and leaving without the bag a few minutes later. She was then seen driving to the same South Auckland address. The intercepted conversations with Mr Crichton were shortly before or around the two occasions when Ms Nguyen went to the South Auckland address. The Crown also referred to intercepted conversations later in the day which indicated that Mr Crichton had on-sold the methamphetamine to a Mr Khan, and a conversation later in the evening between Mr Kha and Mr Crichton, in which Mr Kha asked Mr Crichton if “she give you?” and Mr Crichton responded “yeah”.
[8] On behalf of the appellant, Mr Cassidy submitted that, while there was no doubt that Mr Crichton had obtained methamphetamine from Ms Nguyen on 3 June 2007, there was an issue as to whether Ms Nguyen had obtained it from the appellant. In support of this submission Mr Cassidy referred to his cross-examination of Ms Nguyen, in which he put to her that the appellant had not supplied any methamphetamine to her on 3 June. Having refreshed her memory by reference to the surveillance photographs, Mr Cassidy asked Ms Nguyen:

17. All right, so does that help refresh your memory about, about meeting on the 3rd of June?
1. On that day, I, I went there to pay the money.
17. So, are you saying that Ben did not supply you with methamphetamine on that day?
1. The – in photo on that day I went there to pay the money. On the day that I take the good, other day, I can’t remember.

[9] Mr Cassidy submitted that Ms Nguyen’s evidence was clear: she went to the appellant’s shop on 3 June to pay him money back for “the good” (methamphetamine) that she had received on a previous day, but did not get any methamphetamine from the appellant that day. She could not remember the day she had received drugs from the appellant at his shop. Accordingly, he submitted, the jury could not reasonably have been satisfied beyond reasonable doubt that the appellant had supplied methamphetamine to Ms Nguyen on 3 June 2007.
[10] On behalf of the Crown, Mr Lillico submitted that the verdict was reasonable and that, although Ms Nguyen’s evidence did not appear to support drugs having been supplied by the appellant on 3 June 2007, there was other evidence on which the jury could rely in order to be satisfied that the charge was proved beyond reasonable doubt.
[11] Mr Lillico submitted that the jury could be satisfied that on 3 June 2007 drugs “came down the chain” from Mr Wei, as well as money having “come up” the chain. He submitted that the jury could infer from the interception and surveillance evidence that Mr Crichton had made a request to Ms Nguyen for drugs and Ms Nguyen had promised Mr Crichton that if he could give her the money quickly, she could get the drugs quickly. Ms Nguyen then met with Mr Crichton and later Ms Nguyen went to the appellant’s shop carrying a full, heavy white shopping bag. Ms Nguyen then met with Mr Crichton and Mr Kha checked with Mr Crichton later to ensure that Ms Nguyen had provided the drugs.
[12] We reject Mr Cassidy’s submission that the jury’s verdict on count five was reasonable on the basis that it was a verdict which, having regard to all the evidence, no jury could reasonably have reached to the standard of beyond reasonable doubt. There was clear evidence that Ms Nguyen paid the appellant money on 3 June 2007. It was open to the jury to infer from the evidence referred to above that Mr Crichton had ordered a supply of methamphetamine, and that Ms Nguyen obtained money from Mr Crichton when she met with him shortly before going to the appellant’s shop. In the light of Ms Nguyen’s earlier evidence that the appellant was the only person she had obtained methamphetamine from, it was open to the jury to infer from what Mr Crichton said to Mr Kha later that he had received drugs from Ms Nguyen that day, and that the drugs had come from the appellant. Given that the charge alleged a supply on or about 3 June 2007, the jury could reasonably find that count 5 was proved beyond reasonable doubt even if these events did not all happen on 3 June 2007, but happened within a short time around about that date.
[13] We therefore dismiss the appeal against conviction.

Appeal against sentence

[14] In the sentencing judgment, Courtney J said:

[3] It is clear from the evidence that you occupied part of a lengthy supply chain. The Crown asserts that you occupied a position close to the top of the supply chain. Your lawyer accepts that this appears to be so though suggests that you were likely to be little more than a go-between or delivery person, given your modest circumstances. Whilst I accept that you were not at the top of the supply chain, you are nevertheless being sentenced on the basis that you were supplying wholesale amounts of methamphetamine and must therefore be regarded as being well up in the chain.

[15] In fixing a starting point for the appellant’s sentencing, the Judge was required to reach a conclusion as to the quantity of methamphetamine supplied, in order to determine the applicable Fatu band.[5] She found that 112 grams was supplied on 24 May 2007, 284 grams on 3 June 2007, and a further 284 grams on 11 June 2007, making a total of 680 grams. This brought the case into the lower range of band four, described by this Court in Fatu as encompassing “very large commercial quantities” of methamphetamine (500 grams or more), for which starting points of ten years to life imprisonment are appropriate.[6]
[16] The Judge referred to the starting points adopted for sentencing in other offenders in the supply chain, including Ms Nguyen and Mr Crichton. These ranged from 12 to 16 years imprisonment.[7] She adopted a starting point of 11 years for the appellant’s offending, which she then reduced by six months for his previous good character, leading to an end sentence of ten years, six months imprisonment.
[17] When considering the Crown’s submission that a minimum period of imprisonment should be imposed the Judge said:[8]

... I am influenced by the fact that your offending was at the wholesale end of the chain and very serious. The only means by which this Court can send a message to those who offend in this way so as to denounce such conduct and deter future offenders is by stern sentences and a minimum period of imprisonment is justified in this case.

[18] Mr Wei appeals against sentence on four grounds. First, the Judge reached an incorrect conclusion as to the quantity of methamphetamine supplied by the appellant. Second, there was an unjustified disparity between the starting points adopted for the appellant and those adopted for Ms Nguyen and Mr Crichton. Third, the Judge did not give adequate credit for the appellant’s good character. Finally, the Judge was wrong to impose a minimum period of imprisonment.

Did the Judge err in calculating the quantity of methamphetamine supplied?

[19] The Judge noted that the amount of methamphetamine supplied by the appellant had been the subject of careful submissions by his counsel.[9] It is evident from the sentencing judgment that reference was made to intercepted communications touching on quantities of methamphetamine to be supplied (and supplied in fact) and moneys paid. Mr Cassidy submitted that the Judge erred in her conclusion as to the quantities supplied by the appellant on 3 June (count five) and 11 June (count six).
[20] Regarding count five, Mr Cassidy submitted that the appellant supplied only five ounces of methamphetamine (the Judge’s finding of 284 grams equated 10 ounces). This submission was founded on the communication between Mr Kha and Mr Crichton on the evening of 3 June, in which Mr Crichton confirmed that he had received ten ounces of methamphetamine from Ms Nguyen. Mr Cassidy submitted that the communication continued as follows:

Kha: ... Nhi give us half now ...

...

Crichton: For this one ...

Kha: Yeah

[21] Mr Cassidy submitted that this was clear evidence that the appellant had supplied only half of the methamphetamine sold by Ms Nguyen to Mr Crichton on 3 June, and that Ms Nguyen obtained the balance from a Mr Nhi.
[22] This submission was rejected by the Judge for the reason that the evidence did not support a finding that Ms Nguyen was dealing with anyone other than the appellant. She noted that in the days surrounding the 3 June supply there was no evidence of any calls between Ms Nguyen and any other supplier, and that Ms Nguyen had denied using another supplier.[10]
[23] In this court, Mr Lillico submitted that there was ample evidence from which the Judge could properly conclude that the appellant supplied 10 ounces of methamphetamine to Ms Nguyen on 3 June 2007. He submitted that there was no evidence of any calls between Ms Nguyen and any supplier other than the appellant. Counsel also referred to Ms Nguyen’s evidence that she did not get drugs from anyone other than the appellant. Further, she denied (when it was put to her) that she bought drugs from Mr Nhi, or another person by the name of Li Thuy. Mr Lillico also referred to Ms Nguyen’s evidence that supplies to Mr Crichton were always eight to ten ounces of methamphetamine.
[24] While acknowledging that the exchange between Mr Kha and Mr Crichton referred to by Mr Cassidy provided some support for his submission that the appellant supplied only five ounces of methamphetamine on 3 June 2007, Mr Lillico submitted that the Judge was entitled to make up her mind as to the facts in the way that she did, on the whole of the evidence.
[25] We agree. We are not persuaded that the Judge was wrong to find that the appellant supplied ten ounces of methamphetamine on 3 June 2007. The evidence we have referred to supported that finding.
[26] Regarding count six, Mr Cassidy submitted that the evidence as to the amount Ms Nguyen paid the appellant for methamphetamine on 9 June 2007 ($30,000) supported a finding that on 11 June the appellant supplied only three ounces of methamphetamine.
[27] Mr Lillico submitted that the Judge correctly referred to other evidence in reaching her conclusion that the appellant supplied ten ounces on 11 June. He noted that the Judge referred to $74,950 found by the police in Ms Nguyen’s car on 16 June 2007, shortly after an intercepted communication in which she referred to owing the appellant between $90,000 and $95,000. The Judge considered that that sum included the amount found in Ms Nguyen’s car and found it to be consistent with the balance of the amount required to pay for a recent supply of ten ounces of methamphetamine.[11] Mr Lillico referred also to police expert evidence given at the trial as to the wholesale price for methamphetamine being between $8,000 and $15,000 per ounce.
[28] Mr Lillico further submitted that the Judge might also have referred to evidence of Mr Kha having promised Mr Crichton that ten ounces of methamphetamine would be the normal supply, as well as Ms Nguyen’s evidence that she was normally supplied between eight and ten ounces by the appellant, and her evidence that the money found in her car was for the appellant and that she had not yet paid him that money.
[29] We accept Mr Lillico’s submission that there was ample evidence on which the Judge could conclude that the appellant supplied Ms Nguyen with ten ounces of methamphetamine on 11 June 2007.
[30] Accordingly, this ground of the appeal against sentence fails.

Was there an unjustified disparity between the starting point adopted for the appellant and those adopted for Ms Nguyen and Mr Crichton?

[31] The starting point adopted for the appellant was 11 years imprisonment. In sentencing Ms Nguyen, Allan J had adopted a starting point of 13 years,[12] and in sentencing Mr Crichton, Hugh Williams J had adopted a starting point of 13 and a half to 14 years.[13]
[32] Mr Cassidy submitted that Ms Nguyen had pleaded guilty to supplying a total of 1300–1400 grams of methamphetamine,[14] and Mr Crichton had pleaded guilty to supplying 1160 grams.[15] While Mr Cassidy did not suggest that the starting point for the appellant should be half that of Ms Nguyen and Mr Crichton (by reason of the finding that the appellant had supplied 680 grams), he submitted that a starting point of 11 years did not fairly reflect the fact that the jury had acquitted the appellant on three counts, and that he was being sentencing for supplying a smaller quantity of methamphetamine.
[33] This submission can be dealt with swiftly. In setting a starting point, the Judge was required to take into account not only the quantities supplied, but all of the circumstances of the offending.[16] The most significant of these were the appellant’s place close to the top of the supply chain and the nature and scope of the operation itself. We are satisfied that the starting point adopted for the appellant is in line with those indicated for band four offending in Fatu.
[34] There is no unjustifiable disparity between the starting points adopted for the appellant, Ms Nguyen, and Mr Crichton. The appellant’s lower starting point appropriately reflects the smaller quantity of methamphetamine he was found to have supplied, while at the same time recognising his position higher up the chain of supply.
[35] This ground of the appeal against sentence also fails.

Was the discount given for good character inadequate?

[36] Mr Cassidy submitted that the six months reduction (equivalent to 4.5 per cent) allowed by the Judge for the appellant’s previous good character was inadequate for a young man appearing before the court for the first time, albeit on very serious charges. Mr Cassidy also submitted that imprisonment will be particularly difficult for the appellant, and for his family in China.
[37] An offender’s previous good character, evidenced by the absence of previous convictions, is one of the factors a sentencing judge must take into account as a mitigating factor.[17] This recognises that a fall from grace is a punishment in itself, and the greater potential for rehabilitation where community involvement and good character bear witness to a reduced probability of reoffending.[18]
[38] It is not, however, a predominant factor. In some cases the mitigating factor of previous good character can have only limited application. This Court has previously held that in cases of serious drug offending, the need for deterrence and denunciation is of greater significance.[19]
[39] We reject the submission that the discount in Mr Wei’s case was insufficient. He was convicted on three separate counts of supplying methamphetamine, from 24 May to 11 June 2007. This was a course of conduct rather than a single instance of offending. A substantial quantity of methamphetamine was involved. Further, as the Judge said when sentencing the appellant:[20]

[T]hose who come to this country and offend do so knowing the risk that they will be imprisoned far from their families for a long time.

We agree with the Judge’s comment.

[40] This ground of the appellant’s appeal against sentence also fails.

Minimum period of imprisonment (MPI)

[41] Mr Cassidy submitted that the imposition of an MPI of 50 per cent increased the severity of the sentence. He submitted that, in light of the fact that the appellant was a first offender, and given the assessment (in his pre-sentence report) that he was at a low risk of reoffending, the Judge should not have imposed an MPI. He submitted that the fact that the appellant will be deported upon his release from prison further counted against an MPI. Mr Cassidy also submitted that an MPI was not justified for the appellant when one had not been imposed for either Ms Nguyen or Mr Crichton.
[42] An MPI may be imposed if the sentencing judge is satisfied that the minimum period before consideration for parole specified in s 84(1) of the Parole Act 2002 (one-third of the sentence) is insufficient to hold the offender accountable for the harm done to the victim(s) and the community, denounce the offender’s conduct, deter the offender or others from committing the same or a similar offence, or to protect the community from the offender.[21]
[43] Although MPI’s were not imposed in the sentencing of Ms Nguyen and Mr Crichton, they were directed as part of the sentences imposed on other offenders charged after the same police operations:

• (a) Mr Khan (sentence of 15 years imprisonment, MPI of 50 per cent);[22] and
• (b) Mr Diran (sentence of 10 years imprisonment, MPI of 50 per cent).[23]

[44] This was drug dealing on a significant scale. The Judge did not err in finding that the appellant’s offending was at the wholesale end of the supply chain. We reject the submission that the Judge was wrong to conclude that an MPI was justified.
[45] This ground of the appeal against sentence also fails.

Result

[46] The appeals against conviction and sentence are dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Wei HC Auckland CRI-2009-404-251, 18 February 2011 [Wei sentencing judgment].

[2] Although the appeal on this ground was put on the basis of the verdict being against the weight of evidence, we have reformulated the question to conform with s 385(1)(a) of the Crimes Act 1961: R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [5] and [12].

[3] R v Nguyen HC Auckland CRI-2008-092-2364, 1 December 2009 [Nguyen sentencing judgment].

[4] R v Crichton HC Auckland CRI-2009-404-251, 5 August 2010 [Crichton sentencing judgment].
[5] See R v Fatu [2006] 2 NZLR 72 (CA).
[6] At [34].
[7] Wei sentencing judgment at [14]–[17].
[8] At [20].
[9] At [5].
[10] At [10].
[11] At [12].
[12] Nguyen sentencing judgment at [23].
[13] Crichton sentencing judgment at [61].
[14] See Nguyen sentencing judgment at [6].
[15] See Crichton sentencing judgment at [7].
[16] Frewer v R [2012] NZCA 29 at [11].
[17] Sentencing Act 2002, s 9(2)(g).

[18] See R v Findlay CA393/07, 3 December 2007 at [91] and Davidson v R [2011] NZCA 356 at [16].

[19] See R v Anslow CA182/05, 18 November 2005 at [30] and R v Aram [2007] NZCA 328 at [78].
[20] Wei sentencing judgment at [18].
[21] Sentencing Act 2002, s 86.
[22] R v Khan HC Auckland CRI-2008-092-2364, 15 October 2009.
[23] R v Khan.