Cheng v R [2021] NZCA 68 (16 March 2021)

Last Updated: 23 March 2021

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

CA92/2020 [2021] NZCA 68

	BETWEEN	THOMAS CHENG Appellant
	AND	THE QUEEN Respondent

Hearing:	24 February 2021
Court:	Cooper, Mallon and Wylie JJ
Counsel:	P K Hamlin and S J Vincent for Appellant E J Hoskin for Respondent
Judgment:	16 March 2021 at 10 am

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The application for leave to adduce further evidence is granted.
C The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Wylie J)

Introduction

• [1] The appellant, Thomas Cheng, is a Singaporean national. He was charged with, and he entered guilty pleas to, importing methamphetamine into New Zealand,^[1] and supplying that drug in this country.^[2] He was sentenced by Judge Cathcart in the District Court at Gisborne on 22 February 2018 to 10 years and nine months’ imprisonment with a minimum period of imprisonment of four years and three months.^[3]
• [2] Mr Cheng belatedly appeals his sentence, arguing that it is manifestly excessive.
• [3] The Crown opposes the appeal. It argues that the sentence was appropriate and that it was consistent with the then guideline judgment R v Fatu.^[4]

The application for an extension of time

• [4] Mr Cheng’s appeal is filed well out of time and he requires an extension of time to bring the appeal. He has filed an affidavit in support of the application for an extension. He says that he has been represented by three different lawyers over the course of the matter and that, at the time he was sentenced, his relationship with his then lawyer had broken down. He doubted that he could have confidence in any lawyer who he might instruct to advance his sentence appeal and he decided he would not file an appeal until such time as he himself understood the grounds on which any appeal could be advanced. He says that he engaged in correspondence with staff at the Hutt Valley Community Law Centre and that he contacted a number of lawyers to discuss aspects of criminal law relevant to his sentencing. In March 2019, he heard about the then pending decision in Zhang v R,^[5] and he decided to defer appealing his sentence until after release of that judgment. After the Zhang judgment was released, he instructed a lawyer to advance his appeal but a proposed meeting had to be cancelled because the lawyer had other commitments. He says that he only managed to speak to a lawyer in December 2019, that he understood that following this the lawyer considered his grounds of appeal, and that the application for leave to appeal was signed on 25 February 2020.^[6]
• [5] We do not consider that Mr Cheng’s reasons for his delay are compelling but note that the Crown is not prejudiced by the delay and that it did not actively oppose the extension of time. The matters which Mr Cheng seeks to raise in support of his appeal are of general import and, accordingly, we grant the application for an extension of time.

Further evidence

• [6] The notice of appeal suggested that Mr Cheng wished to adduce further evidence in support of his appeal.^[7] In a minute issued on 13 May 2020, Courtney J put in place a timetable for any further evidence to be filed. Mr Cheng filed an affidavit dated 7 September 2020 and the Crown replied with an affidavit from Tyson Walters, a senior advisor at Ara Poutama Aotearoa, the Department of Corrections, dated 28 September 2020. As a result of Mr Walters’s affidavit, the grounds of appeal have been narrowed. Courtney J did not formally grant leave for further evidence to be adduced. Neither party objected to the evidence from the other and we accept it arguably could have some bearing on the outcome of the appeal. While not all of it is fresh, it is credible and cogent. We grant leave for the further evidence to be adduced.

Background

• [7] On 19 November 2008, Mr Cheng was convicted in Singapore of one charge of trafficking a controlled drug — MDMA. He was sentenced to seven years and six months’ imprisonment and eight strokes of the cane. On 24 November 2008, he was again convicted in Singapore of one charge of trafficking a controlled drug — nimetazepam. He was sentenced to two years’ imprisonment along with three strokes of the cane.
• [8] Shortly after he was released from custody in Singapore, Mr Cheng travelled to New Zealand. He arrived in this country on 5 December 2015. He then promptly arranged for an associate to import methamphetamine into this country. His associate arrived from Singapore on 24 December 2015 with 168 grams of methamphetamine. Mr Cheng picked the associate up from Auckland International Airport and the two travelled to Gisborne with the methamphetamine. Mr Cheng subsequently sold the methamphetamine to retail purchasers in the Gisborne area.
• [9] On 5 February 2016, Mr Cheng returned to Singapore. While he was in Singapore he arranged for another associate to bring more methamphetamine into New Zealand. The associate and Mr Cheng travelled to New Zealand on 19 March 2016. The associate was carrying 306 grams of methamphetamine. He was searched at the airport and the methamphetamine was found. The associate was arrested but Mr Cheng was not stopped and he travelled to Rotorua.
• [10] While he was in Rotorua, Mr Cheng arranged for two further Singaporean nationals to import methamphetamine into New Zealand. He agreed to pay each of them $5,000 for acting as couriers. On 1 April 2016, the associates arrived in New Zealand from Singapore. They were searched and one of them was found to be carrying 100 grams of methamphetamine. Mr Cheng had travelled to Auckland Airport to meet them and he was arrested by the police. He was interviewed and he admitted the offending.
• [11] In total, Mr Cheng imported 574 grams of methamphetamine into New Zealand. One hundred and sixty-eight grams were distributed into the market in this country and 406 grams were intercepted.
• [12] Mr Cheng sought a sentence indication. It was provided by Judge Cathcart in the District Court at Gisborne on 22 November 2017.^[8] Mr Cheng accepted the sentence indication and entered guilty pleas to a representative charge of importing methamphetamine and a charge of supplying the drug. He came before Judge Cathcart for sentence on 22 February 2018.

Sentence indication and sentencing notes

• [13] In the sentence indication, the Judge recited the relevant facts. By reference to the then applicable guideline judgment, R v Fatu, he found that Mr Cheng’s offending attracted a starting point of 12 and a half years’ imprisonment.^[9] He noted that both counsel agreed with this. He then considered whether there should be an uplift for Mr Cheng’s previous convictions in Singapore. The Crown had submitted that an uplift of one year’s imprisonment was required; Mr Cheng’s counsel acknowledged that there should, in principle, be an uplift. The Judge considered that a one-year uplift was required.^[10] The Judge did not have a pre-sentence report before him, so he could not determine whether or not there were any mitigating factors personal to Mr Cheng. He did however record that the dominant purpose of sentencing had to be deterrence and denunciation.^[11] He addressed Mr Cheng’s guilty pleas and observed that in principle, the appropriate discount should be 15 per cent.^[12] He indicated however that he was prepared to allow Mr Cheng a discount of 20 per cent, and to impose a minimum period of imprisonment of 40 per cent of the end sentence rather than 50 per cent, if guilty pleas were entered.^[13]
• [14] At sentencing, the Judge adopted his sentence indication.^[14] He considered that the only additional matter he had to consider was whether or not there should be an additional discount afforded to Mr Cheng to take into account his claim that he was remorseful.^[15] The Judge noted that the pre-sentence report, which he had received by that stage, indicated that Mr Cheng displayed “some remorse”, that he had not realised the damage the drugs he had imported had on the community, and that he now felt “more guilty” about that.^[16] The Judge however placed these comments in context with other matters recorded in the pre-sentence report, which suggested that Mr Cheng was, to a degree, still denying aspects of his offending. The Judge considered that, whilst there was an expression of remorse, it was not at a level that warranted discrete recognition.^[17] He did not adjust the proposed sentence outcome he had indicated in his sentence indication. On each of the charges he sentenced Mr Cheng to a sentence of ten years and nine months’ imprisonment, the sentences to be served concurrently.^[18] He ordered that Mr Cheng was to serve a minimum period of imprisonment of four years and three months.^[19]

Submissions

• [15] Mr Hamlin, appearing for Mr Cheng, raised two issues. First, he argued that the Judge erred in not granting Mr Cheng a discount to recognise that he is a foreign national. He argued that Mr Cheng should have received a discount of five to 10 per cent to recognise that his circumstances as a foreign national make his sentence more difficult for him. Secondly, Mr Hamlin submitted that the Judge erred in uplifting the sentence because of Mr Cheng’s previous convictions in Singapore. He argued that there should have been a lesser uplift for the Singaporean convictions. He submitted that had these two errors not been made, the end sentence should have been between eight years and nine months’ and nine years and five months’ imprisonment.
• [16] Ms Hoskin, for the Crown, accepted that the fact that an offender is a foreign national serving a term of imprisonment in New Zealand can lead to a discount from the sentence which might otherwise have been imposed. She submitted however that the giving of such a discount is discretionary and that whether or not it is appropriate in any given case depends upon the offender’s particular circumstances. She argued that there was no justification for a discount in Mr Cheng’s case. Further, she submitted that the uplift made by the Judge to recognise Mr Cheng’s convictions in Singapore was orthodox. She submitted that the Singaporean offending is indicative of Mr Cheng’s poor character and culpability and speaks to the need for a deterrent response.

Analysis

• [17] The appeal is not affected by the fact that the sentence indication was given and then accepted by Mr Cheng.^[20] Rather, Mr Cheng must establish that there was an error in the sentence imposed and that a different sentence should have been imposed.^[21] He has to point to a material error; the focus is on whether the sentence is within the appropriate range rather than the process by which the sentence was reached.^[22]
• [18] With this in mind, we turn to each of the errors alleged by Mr Cheng.
• [19] In his affidavit filed in support of the appeal, Mr Cheng described his family connections in Singapore. He said that he has two children in that country and that he has no family or other support networks in this country. He asserted that he was close to his children, who are now aged 13 and five years old respectively. He also said that he is close to his father, his grandmother, his stepmother and his three siblings, all of whom reside in Singapore.
• [20] Section 8(h) of the Sentencing Act 2002 requires that a sentencing court take into account any particular circumstances of an offender that mean that a sentence that would otherwise be appropriate would, in the particular instance, be disproportionately severe.
• [21] Personal hardship and the resulting family dislocation is an inevitable consequence of a sentence of imprisonment. Where the personal circumstances of the offender, for example, health, youth, old age, intellectual capacity or pregnancy, make what would otherwise be an appropriate term of imprisonment disproportionately severe, this can lead the sentencing court to reduce the sentence that would otherwise be appropriate.^[23]
• [22] The effects of dislocation from family and culture can add to the significant challenges faced by a foreign national serving a long-term sentence of imprisonment in this country and justify an adjustment to the sentence which might otherwise be imposed.^[24] Such adjustment can be appropriate even in cases involving serious drug related offending. In Zhang, this Court accepted that the isolation from, and denial of, family support to foreign nationals can be treated as a mitigating factor where it makes a sentence harder than usual to bear. ^[25] It did however record that any discount for such matters is in the discretion of the sentencing judge.
• [23] Discounts for foreign nationals who are likely to find sentences imposed by the courts harder than usual to bear are not uncommon. Discounts of five to 10 per cent have been allowed.^[26]
• [24] Whether a discount is appropriate depends upon an offender’s personal circumstances and whether those circumstances render an otherwise appropriate sentence disproportionately severe.
• [25] Mr Cheng’s circumstances do not warrant a discount. First, Mr Cheng’s imprisonment in New Zealand follows a lengthy period of imprisonment in Singapore when he would also have been isolated from his family. The reality is that Mr Cheng came to this country and then made the decision to import methamphetamine into New Zealand. He must have known that he would serve a lengthy term of imprisonment in this country if apprehended but he chose to offend anyway and more than once. Secondly, Mr Cheng is fluent in English. He is not socially isolated in the same way that other foreign prisoners unable to speak English might be. Thirdly, his offending is not explained by youth or naivety. Factors such as these can colour an offender’s experience of incarceration, but Mr Cheng was 32 years old at the time of the offending, and is 37 years old now. Fourthly, neither Mr Cheng nor any members of his family, insofar as we are aware, suffer from ill health.
• [26] In our judgement, there is nothing to suggest that Mr Cheng’s sentence will be disproportionately severe for him. Although personal circumstances such as foreign nationality with resulting isolation and dislocation can be relevant and a mitigating factor leading to a discrete discount on compassionate grounds, we do not consider such a discount is warranted in this case. We reject this ground of appeal.
• [27] Next, Mr Hamlin argued that a 12-month uplift for Mr Cheng’s drug trafficking convictions in Singapore was inappropriate. As noted, the Judge uplifted Mr Cheng’s sentence by one year to recognise those convictions.
• [28] Mr Hamlin argued that the drug enforcement regime in Singapore is much more severe than that in New Zealand. He pointed out that one of Mr Cheng’s convictions in Singapore involved trafficking in nimetazepam, which is a Class C controlled drug in New Zealand. He acknowledged that the record of the other conviction in Singapore for trafficking a controlled drug did not specify the drug involved. He gave us copies of the relevant legislation in Singapore. He speculated that the drug could have been cannabis. It appears from the notice of appeal, however, that the drug was MDMA, a class B controlled drug in New Zealand. Regardless of the drug involved, Mr Hamlin submitted it is clear that sentences imposed in Singapore for drug related offending are more severe than those imposed in New Zealand. He submitted that, in these circumstances, lesser weight should have been placed on the sentences Mr Cheng received in that country. He did not however suggest that no uplift was required — rather, he argued that a one-year uplift was too high.
• [29] We do not accept Mr Hamlin’s argument. While it may be that Mr Cheng’s offending in Singapore was different in type and/or in gravity, that is a matter of speculation. Mr Cheng could have clarified the position. He did not do so. The more important point is that Mr Cheng had recently been convicted of like offending involving classified drugs. That offending was sufficiently serious to attract significant sentences in Singapore. Further, and as we have noted, Mr Cheng was sentenced in Singapore in November 2008 to seven years and six months’ imprisonment. His offending in New Zealand began in December 2015. There was little or no time gap between release and further offending. It is highly relevant that Mr Cheng’s offending in New Zealand began almost immediately following the expiry of his sentence in Singapore. We accept that the sentence imposed on a person who has previously been convicted should not be increased merely by reason of the previous conviction, but that does not mean that previous convictions must be ignored. As this Court has noted, where previous convictions indicate a tendency to commit the particular type of offence in respect of which the offender is being sentenced, issues of deterrence, and in some cases, protection of the public, can require an uplift for the previous offending.^[27] This is so regardless of where the previous offending occurred.^[28] Previous convictions can also bear on the issue of character.^[29]
• [30] In the present case, Mr Cheng’s convictions in Singapore were also for drug trafficking. They immediately pre-date his offending in this country. They speak to his poor character and highlight his culpability. They point to the need for a greater deterrent response and underline the need to protect the public from those who seek to import and distribute drugs into this country. We reject this second ground of appeal as well.

The result

• [31] The application for an extension of time to appeal is granted.
• [32] The application for leave to adduce further evidence is granted.
• [33] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Misuse of Drugs Act 1975, s 6(1)(a) and 2(a); and Crimes Act 1961, s 66(1).

^[2] Misuse of Drugs Act, s 6(1)(c) and 2(a); and Crimes Act, s 66(1).

^[3] R v Cheng [2018] NZDC 3344 [District Court judgment].

^[4] R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA). Mr Cheng’s appeal was filed after delivery of this Court’s judgment in Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648. Accordingly, the judgment does not apply — see Zhang v R at [188] and [191.

^[5] Zhang v R, above n 4.

^[6] Although out of time, Mr Cheng does not require leave to appeal against his sentence. The appeal is of right. Accordingly, we presume Mr Cheng meant to refer to his notice of appeal.

^[7] Court of Appeal (Criminal) Rules 2001, r 12B.

^[8] R v Cheng DC Gisborne CRI-2016-016-695, 22 November 2017.

^[9] At [9].

^[10] At [10].

^[11] At [11].

^[12] At [12].

^[13] At [13].

^[14] District Court judgment, above n 3, at [5].

^[15] At [3].

^[16] At [4].

^[17] At [5].

^[18] At [6(a)].

^[19] At [6(b)].

^[20] Criminal Procedure Act 2011, s 245.

^[21] Section 250(2).

^[22] Tutakangahau v R [2014] NZCA 279 at [36].

^[23] See for example Wikohika v R [2020] NZCA 352 at [31]; Gotz v R [2019] NZCA 99 at [20]; Hastie v R [2011] NZCA 498 at [40]; and Garnett v R [2010] NZCA 173 at [36].

^[24] See Gao v R [2018] NZCA 69 at [21]; and Tran v R [2017] NZCA 146 at [30]–[33].

^[25] Zhang v R, above n 4, at [163].

^[26] See for example Chai v R [2020] NZCA 202 at [34]; and Wan v R [2020] NZCA 328 at [35].

^[27] Beckham v R [2012] NZCA 290 at [84].

^[28] R v Patterson [2008] NZCA 75 at [35].

^[29] Beckham v R, above n 27 at [84].