Su v R [2020] NZCA 128 (30 April 2020)

Last Updated: 1 May 2020

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

CA105/2019 [2020] NZCA 128

	BETWEEN	XIANG SU Appellant
	AND	THE QUEEN Respondent

Hearing:	26 February 2020
Court:	Miller, Dobson and Moore JJ
Counsel:	R J Hooker for Appellant JEL Carruthers for Respondent
Judgment:	30 April 2020 at 9.00am

JUDGMENT OF THE COURT

1. Application for extension of time to appeal granted.
2. Appeal allowed.

100. The sentence of five years and 10 months imprisonment is quashed.

4. A sentence of five years imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

[1] Mr Su was convicted after a jury trial on one count of possessing 233 g of methamphetamine for supply. He appeals his sentence of five years, 10 months imprisonment,^[1] relying on this Court’s guideline judgment in Zhang v R.^[2] He contends that his was a lesser role and he ought to receive a discount for addiction.

Extension of time

[2] Mr Su was sentenced by the trial Judge, Gordon J, on 30 May 2017. He did not take steps to appeal his sentence until 18 March 2019, when he filed what purported to be an application for leave to appeal. He was 408 working days late. He requires an extension of time to bring his appeal. This raises two questions. The first is whether Zhang, which was delivered on 21 October 2019, governs this case. The second is whether an extension is warranted on the facts.
[3] In Zhang the Court held that the guidelines apply to sentences passed after 21 October 2019 regardless of when the offending took place. The Court adopted the traditional view that Zhang applies to sentences that had already been passed “if and only if two conditions are satisfied: (a) that an appeal against the sentence has been filed before the date the judgment is delivered; and (b) the application of the judgment would result in a more favourable outcome to the appellant”.^[3]
[4] Both parties contended that Zhang should apply here. As Mr Carruthers pointed out, it was not necessary for Mr Su to apply for leave to appeal. The procedurally correct course was to file a notice of appeal in which he sought an extension of time.^[4] We accept that Mr Su’s application for leave is appropriately treated as a notice of appeal with a request for an extension of time. As Mr Hooker observed, some of the appeals decided in Zhang also required extensions of time and when holding that the new guidelines apply to ‘appeals filed’ before 21 October 2019 the Court did not distinguish those appeals that require an extension from those that do not. A literal approach is appropriate. The appeal was filed before 21 October 2019, and Zhang accordingly applies.
[5] Mr Su belatedly filed an affidavit seeking to explain his delay. He deposes that he was unaware of the sentences passed on his co-offenders, who pleaded guilty and were sentenced separately, and did not appreciate that he might be able to claim disparity. Neither his trial counsel nor counsel whom he consulted subsequently advised him that he might be able to challenge his sentence.
[6] The Crown’s position is that an extension of time ought to be granted if the appeal is thought to have merit. The delay here is very long. But Mr Su has explained his failure to act, and his evidence is not challenged. In the absence of opposition we will grant the extension.

Approach to the appeal

[7] Mr Su was sentenced under the former methamphetamine guideline judgment, R v Fatu,^[5] and his is one of a number of appeals the disposition of which has been delayed pending the updated guidelines issued in Zhang. For this reason we approach the appeal not as a search for error in the sentence passed below but by assessing the outcome against the new guidelines.

The facts

[8] We accept the bare facts that Mr Su participated in a methamphetamine-dealing organisation by acting as a driver and storing the drug at his home. Gordon J recorded the circumstances in which the 233 g were found:

[7] On 16 July 2015 the police executed a search warrant at your home on the North Shore where you lived with your wife and her mother. In a bedroom on the ground floor, which you had been occupying, the police found 233 grams of methamphetamine hidden in a computer tower under a desk. The methamphetamine was packaged in small self-sealing bags. Seven of those bags contained between 27.5 and 27.7 grams of methamphetamine. The other bags contained smaller amounts. The methamphetamine that was found in your bedroom was estimated to have a street value of between $77,000 and $140,000 depending on how it was sold.

[8] Other items found in a desk in the bedroom included a piece of paper on which was recorded, amongst other things, a series of numbers with decimal points, which were either just over or just under the number 28. There were also other associated documents. You accepted in your evidence that the documents were in your handwriting but said you did not know what the numbers related to.

[9] Also in the desk drawer the police located electronic scales of a kind that were able to weigh very small amounts of methamphetamine and a number of empty and unused self-sealing bags.

[9] The Judge explained that Mr Su gave evidence and denied knowledge of the methamphetamine hidden in the computer tower. Plainly the jury rejected that account.
[10] The Judge recorded the Crown submission that the quantity of methamphetamine and the presence of snap-lock bags, electronic scales and a tick list together demonstrated that there was a significant degree of commerciality to Mr Su’s offending. He had accounted for the latter items in evidence by saying he was addicted to the drug and the empty and unused plastic bags and scales related to his own use; he was in the habit of dividing the methamphetamine that he obtained from others into smaller bags. The Crown invited the Judge to reject those claims.
[11] The Judge did not make the factual findings necessary to settle these competing claims. She did conclude that Mr Su’s involvement in the operation was “relatively minor”,^[6] noting an absence of intercepted communications between him and his co‑offenders, and she accepted that his offending “may well have been driven” by addiction rather than monetary gain.^[7] She also considered the starting point that she adopted, six and a half years imprisonment, to be consistent with those adopted for his co-offenders, each of whom had played a more significant role.

The sentence

[12] The Judge identified no personal aggravating factors that would increase the starting point.^[8] In mitigation, she allowed five per cent for previous good character and five per cent for remorse.^[9] She declined any allowance for restrictive bail conditions.^[10] The end sentence was five years, ten months imprisonment.^[11]

The appeal

[13] Mr Hooker submitted that the starting point of six and a half years was too long. That figure ought to be reduced for Mr Su’s role, which he characterised as “lesser”. He emphasised the absence of evidence that Mr Su had any operational role or issued directions or participated for financial gain. He urged us to adopt a starting point of four years imprisonment. He did not pursue the issue of disparity.
[14] Counsel also asked us to make an allowance for addiction at the second stage of the sentencing analysis. He suggested a discount of six months, including remorse. That would result in an end sentence of three years, six months imprisonment.
[15] For the Crown, Mr Carruthers submitted that following Zhang the starting point and end sentence remain within the available range and the sentence ought not be disturbed.

The starting point

[16] The quantity is the first determinant of sentencing. The 233 g places Mr Su very near the top of Zhang Band two, which attracts a starting point of 2–9 years. He must be taken to have had possession of that quantity for the purpose of supply.
[17] Role is an important consideration, and the question is to what extent Mr Su’s role as storeman and driver calls for a reduction. The Judge characterised his role as minor, relative to others, and she reflected that in the starting point, but of course she was not considering the role indicia to which the Court drew attention in Zhang.^[12]
[18] Mr Carruthers submitted that the facts engage several of the “significant” role indicia. Specifically, Mr Su’s role was operational. That is demonstrated by the quantity of the drugs and the presence of items consistent with methamphetamine dealing. He submitted that the tick list was written by Mr Su and recorded amounts corresponding to the weight of the bags of methamphetamine found, suggesting that he weighed and packaged the methamphetamine for onward sale. Further, the quantity invites an inference that he had some awareness and understanding of the scale of the operation. The absence of intercepted communications does not suggest otherwise. By his own evidence Mr Su saw his co-offenders frequently in person.
[19] Mr Hooker resisted these submissions, pointing to the absence of factual findings by the Judge and suggesting the prosecutor may not have challenged Mr Su about the tick list, bags and scales. If that latter submission were correct, we would consider ourselves bound to accept Mr Su’s evidence.
[20] We have reviewed the evidence. Contrary to Mr Hooker’s understanding, the prosecutor did challenge Mr Su’s claim that he had been dividing up the methamphetamine for his own use. In his evidence in chief Mr Su claimed that he did so to ensure he did not overdose and also to keep his expenses under control. He explained that he had written the tick list but in evidence in chief was unable to say what the numbers meant. He denied that he had ever weighed out large quantities of drugs for his co-offenders. In cross-examination he was taken to what would be a remarkable co-incidence if the numbers were unrelated to the drugs. The numbers roughly corresponded to the weight of the seven bags found, each of which was very close to 28 g or one ounce. Mr Su denied that he wrote the numbers down because he was keeping a record of methamphetamine he was weighing. There were also handwritten notations that suggested he had paid for some but not all of the methamphetamine. The cross-examination also focused on his close and regular connection with some of the co-offenders at their premises.
[21] Mr Su evidently was not a credible witness. The jury rejected his claim that he knew nothing of the methamphetamine in the computer tower. We do not find his explanation for the tick list in the least credible either. The evidence compels the inference that he was weighing the bags to ensure he placed an ounce of the drug into each, and he must have been doing that for on-sale.
[22] Mr Carruthers submitted that a sentencing court should focus on the offender’s conduct when determining their role and position within a band. Addiction is relevant at that stage to show, for example, the offender’s knowledge of the operation and motivations for participating. He accepted that Mr Su may have received little financial gain over and above a steady supply of free methamphetamine, but the fact remains that his was a significant role in a substantial operation. He compared the circumstances of this case with those of Ms Phillips, whose appeal was decided in Zhang.^[13] She was a low-level supplier in her own right, dealing to feed her own addiction, and she accompanied her partner on two trips to supply at least 6 kg of methamphetamine. This Court considered that the five-year starting point adopted by the sentencing judge properly reflected her culpability given her minimal input into the offending and small personal commercial benefit. Overall, Mr Carruthers submitted, Mr Su was fortunate to receive the starting point that he did. A starting point of four years for such a quantity would be manifestly inadequate.
[23] We accept Mr Carruthers’ submission that Mr Su was a little more than a mere courier and storeman; he was involved in preparing methamphetamine for onward sale. He must have had some knowledge of the scale of the operation in which he was involved. We consider that his role was nonetheless a lesser one; we think it likely that he acted under direction and we accept that he did not share in the monetary gains, beyond receiving enough methamphetamine to feed his habit. We infer from the Judge’s findings that she accepted his evidence that he was addicted. The risk he took was outsized when compared to his reward.
[24] Based on quantity, which is the primary determinant, Mr Su would sit near the top of Band two with a starting point of about eight years, but the lesser nature of his role in the operation reduces the seriousness of his offending substantially. Taking all these considerations into account, we would adopt a starting point at the mid-point of the band, five and a half years imprisonment.

Addiction as a personal mitigating factor

[25] We do not accept that a further discount ought to be given for addiction in this case. As noted above, we accept, given the trial Judge’s findings, that Mr Su is an addict and was paid in methamphetamine which he consumed. But we do not infer that addiction played a causal role in the offending. As the Court explained in Zhang, addiction mitigates culpability where it impairs the rational decision to commit the offence.^[14] Perhaps because the evidence of addiction ultimately rests on Mr Su’s own account at trial, there is not sufficient evidence that addiction had that effect here. Nor is there any evidence that his rehabilitative prospects justify a discount. The discount of ten per cent given by the sentencing Judge adequately recognised the mitigating circumstances in this case and is upheld.

Disposition

[26] We grant an extension of time.
[27] The appeal is allowed.
[28] We quash the sentence imposed and substitute a sentence of five years imprisonment.

Solicitors:
Vallant Hooker & Partners, Auckland for Appellant
Crown Law Office, Wellington for Respondent

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^[1] R v Su [2017] NZHC 1147.

^[2] Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

^[3] At [188].

^[4] Criminal Procedure Act 2011, s 248(1)(a) and (4)(a); and Court of Appeal (Criminal) Rules 2001, rr 11 and 12.

^[5] R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).

^[6] R v Su, above n 1, at [22].

^[7] At [22].

^[8] At [23].

^[9] At [24]–[25].

^[10] At [26].

^[11] At [30].

^[12] Zhang v R, above n 2, at [126].

^[13] At [204]–[228].

^[14] At [137]–[138].