Li v R [2019] NZCA 474 (2 October 2019)

Last Updated: 8 October 2019

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA106/2019 [2019] NZCA 474

	BETWEEN	MINGDONG LI Appellant
	AND	THE QUEEN Respondent

Hearing:	30 July 2019
Court:	Miller, Woolford and Whata JJ
Counsel:	A M Simperingham and H N Tunstall for Appellant HDL Steele and P E Hayward for Respondent
Judgment:	2 October 2019 at 11.00 am

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal is granted.
2. The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

[1] Mr Li brings this appeal against the sentence of 10 years and eight months imprisonment imposed on him after trial on two charges of possessing ephedrine for supply.^[1]
[2] The sentence was passed by Judge Sinclair on 4 August 2017, so the appeal is well out of time. Mr Li’s explanation is that he ran out of funding and it took time to find a lawyer who would take his case.
[3] We record that Mr Li sought an adjournment pending the Court’s review of the sentencing methodology adopted in R v Fatu.^[2] Miller J declined that application pre-hearing on the basis that it might be reviewed at the hearing,^[3] which it was. We again declined to adjourn, or to permit further submissions, on the basis that the review is unlikely to affect materially the position of offenders such as Mr Li, who assumed an important role in a major drugs transaction, participated for profit, received a discount for personal mitigating factors, and escaped a minimum period of imprisonment.

The facts

[4] The charges arose out of the importation of a consignment of 200 kilograms of ephedrine, a class B drug, from China in 2016. Other offenders received the consignment, which had been intercepted by Customs and a placebo substituted for most of the drugs. Mr Li collected the placebo and drugs and took them in his car to his home address. When a search warrant was executed at Mr Li’s property a further 1.5 kilograms of ephedrine was found in another car registered to Mr Li. It was not part of the same shipment.
[5] Judge Sinclair, who presided at the trial, recorded that the ephedrine consignment was very large. It was worth about $21 million at street level, and it would have yielded about 100–150 kg of methamphetamine.

The sentence

[6] The Judge characterised Mr Li as not the mastermind but an active member of the operation and a key player. It seemed that he was initially to be an arms-length participant but he became more directly involved after people whose role it was to unpack the drugs were denied entry to New Zealand. He assisted the organiser, Mr Wang, and collected the consignment from Mr Ng’s rented address, where it had been delivered on 9 May 2016.
[7] A starting point of 10 and a half years was adopted for Mr Li on the lead charge. The Judge cited R v Wallace as the lead sentencing case for class B drug offending,^[4] and a number of comparable cases.^[5] She added 18 months for the second charge.
[8] Turning to mitigating factors, the Judge noted that deterrence prevails in commercial drug dealing cases but that does not preclude an allowance for personal mitigating factors. Mr Li had not been interviewed by the probation officer, but the Judge recorded that he had instructed counsel that he wished to be sentenced without delay. The pre-sentence report identified an absence of family or pro-social support in New Zealand but Mr Li advised that he has a partner here and has support in the community. He has lived in New Zealand since around 2005. He was assessed as a low reoffending risk.
[9] The Judge noted that Mr Li had expressed remorse but did not consider that it was extraordinary enough to warrant a discount. She allowed a 10 per cent discount for previous good character and a year spent on restrictive bail. The end sentence was 10 years and eight months. She declined to impose a minimum period of imprisonment.

The appeal

[10] On appeal, Mr Li argues that his role was minimal, he ought by comparison with co-offenders to have been treated more leniently, and he got no discount for personal circumstances or remorse and too small a discount for time on EM bail. He now complains that he was not interviewed by the probation officer, and he contends that the Judge placed too much emphasis on deterrence.

Mr Li’s role

[11] Mr Simperingham submitted that the mastermind was a Mr Huang, and a Mr Wang was to arrange to supply the drugs to others. Mr Li became involved at a late stage, after the unpackers were denied entry to New Zealand. He submitted that Mr Wang exploited Mr Li’s friendship. There was no evidence that Mr Li stood to make a large profit. He hoped rather that Mr Wang would be able to repay a $28,000 debt owed in relation to a legitimate transaction. In fact Mr Li did no more than unpack, move and store the drugs for a brief period. He submitted that a starting point of 8–10 years was appropriate.^[6] With respect to the 1.5 kg of ephedrine, counsel submitted that Mr Li ought to have been sentenced on the basis that he allowed Mr Wang to use the car to transport and store the drug.
[12] In our opinion the evidence supports the Judge’s characterisation of Mr Li’s role. It is true that Mr Huang and Mr Wang, whose communications were being intercepted, made late arrangements to receive, store and unpack the drugs. But it is apparent that Mr Li knew earlier that an illegal transaction was underway and was anxious that money should be paid to him.
[13] The sequence is that the shipment was landed on 15 April 2016 and delivered to Mr Ng’s rented address on 9 May. Mr Wang and Mr Li unpacked it on 13 May and Mr Li took it to his home, where he was arrested the following day.
[14] The evidence of Mr Li’s prior involvement began with a phone call on 4 May, in which Mr Wang reassured him about payment and cautioned him against mentioning things on the phone.
[15] After the unpackers were denied entry to New Zealand Mr Li agreed at Mr Wang’s request to become involved in the unpacking in return for money. On 12 May Mr Wang cautioned Mr Li about speaking in the car they were in before confirming that after this he would give Mr Li money for “warehouse/storage” and stating that “if got caught red-handed then there’s nothing to be said ... Admit it straight away. Admit it and could get out earlier”.
[16] After Mr Li collected the drugs, which he had unpacked with Mr Wang, he confirmed that the drugs were at his home and stated that they were “half each”. Mr Wang responded “No, the money doesn’t change, the sum doesn’t change, but just that you have lesser that whatever, you know?”.
[17] There can be no doubt that Mr Li knew what he was involved in and had an understanding of the scale of the operation. He was motivated by money. It was open to the Judge to infer that he was an arms-length participant with a financial interest and became an active member of the operation when new unpackers were needed. It was a reasonable inference that he was a key player who stood to gain significant profit. She was also entitled to infer from the 1.5 kilograms found in his car that he had previous experience of the ephedrine trade.
[18] We reject the submission that the Judge was wrong to emphasise deterrence, which is always a relevant consideration and continues to assume prominence in sentencing for sophisticated commercial offending undertaken as a business transaction and on a large scale.^[7] Nothing about Mr Li’s personal circumstances mitigates his culpability. He was not driven by addiction, for example. We are not persuaded that the starting point of 10 and a half years was excessive. Nor was the Judge wrong to add 18 months for the other ephedrine, which was a significant quantity and confirmed that Mr Li had an antecedent involvement in drug dealing.

Disparity of treatment of co-offenders

[19] Mr Huang was sentenced to seven years imprisonment (from a starting point of 11 years) for possession for supply, and Mr Wang to eight years and two months imprisonment (from a starting point of 12 years) for importation.^[8] Both pleaded guilty, while Mr Li went to trial. Both were given discounts for their guilty pleas and “other matters.” Mr Simperingham submitted that the disparity is incongruous and unreasonable.
[20] We do not agree. Judge Sinclair accepted that Mr Li’s involvement was less than that of two co-offenders, Messrs Wang and Huang.^[9] We accept the Crown submission that in reliance on the authorities she placed him just above offenders at the lower end of the command hierarchy (8-10 years),^[10] and below the category of masterminds or instigators (12-13 years).^[11] No disparity arises, especially bearing in mind that Mr Li was also being sentenced for the 1.5 kg of ephedrine. We observe that she refused to impose an MPI, reasoning that Mr Wang had not received one.

Mitigation

[21] Mr Simperingham submitted that Mr Li had expressed genuine remorse and remorse need not be exceptional to justify a discount. Had he been interviewed by the probation officer this might have been more apparent.
[22] We are not persuaded that the Judge, who presided over the trial at which Mr Li gave evidence, was wrong to deny a discount for remorse on the facts. It was open to her to sentence in reliance on a pre-sentence report that had been prepared without interviewing Mr Li, who was represented and insisted that he wanted to proceed with sentencing. It is speculative to suggest that the report would have confirmed Mr Li’s remorse was genuine and merited a discount. There is still little evidence of it.^[12]
[23] We do not accept that any discount was required for hardship inherent in serving the sentence far from home. As noted, Mr Li has been in New Zealand for a considerable period and he has a partner here.
[24] A discount was appropriate for previous good character, but it need not be substantial. The second charge suggests that this was no fall from grace.
[25] Mr Li spent 12 months on EM bail under a 24-hour curfew. We accept that it was proper to make an allowance for that.^[13] If we assume that the Judge allowed an appropriate seven months for that,^[14] her global 10 per cent discount would include seven months or five per cent for previous good character.
[26] For these reasons we are not persuaded that a larger allowance ought to have been made for mitigating factors.

Decision

[27] The application for an extension of time is granted.
[28] The appeal is dismissed.

Solicitors:
Woodward Chrisp, Gisborne for Appellant
Crown Solicitor, Auckland for Respondent

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^[1] R v Ng [2017] NZDC 17262 [Sentencing notes]. A conviction appeal was abandoned.

^[2] R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).

^[3] On 9 July 2019.

^[4] Judge Sinclair cited R v Wallace [1983] NZLR 758 (CA) in error (at [26] of the Sentencing notes, above n 1) though we think she meant to refer to R v Wallace [1999] NZCA 89; [1999] 3 NZLR 159 (CA) which is the leading sentencing case for class B drug offending.

^[5] Sentencing notes, above n 1, at [27] citing R v Gan [2016] NZHC 2349; Yuen v R [2015] NZCA 555; R v Wang [2014] NZCA 409; R v Uele [2014] NZHC 2239; and R v Ma [2015] NZHC 1694. Judge Sinclair also cited R v Zhang [2015] NZHC 2591 but we think she meant to cite the sentencing notes relating to that case: R v Zhang [2015] NZHC 2325 [Zhang sentencing notes].

^[6] By reference to R v Uele, above n 5; and R v Ma, above n 5.

^[7] Sentencing Act, s7(f).

^[8] R v Wang [2017] NZDC 12928; and R v Huang [2017] NZDC 22155.

^[9] Sentencing notes, above n 1, at [21].

^[10] R v Wang; R v Uele; and R v Ma, above n 5.

^[11] R v Gan; Yuen v R; and Zhang sentencing notes, above n 5.

^[12] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].

^[13] Sentencing Act, s 9(3A).

^[14] See Baillie v R [2010] NZCA 507 at [17]–[19]; Chea v R [2016] NZCA 207 at [108]–[111]; and Parata v R [2017] NZCA 48 at [11]–[15].