Tan v R [2023] NZCA 446 (14 September 2023)

Last Updated: 18 September 2023

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

CA14/2020 [2023] NZCA 446

	BETWEEN	ZHI ZHAO TAN Appellant
	AND	THE KING Respondent

CA15/2020
	BETWEEN	CHI WA LEUNG Appellant
	AND	THE KING Respondent
CA105/2020
	BETWEEN	HAO LI Appellant
	AND	THE KING Respondent
CA396/2020
	BETWEEN	WAI FAT WONG Appellant
	AND	THE KING Respondent
CA424/2020
	BETWEEN	YIU WAI CHIANG Appellant
	AND	THE KING Respondent
CA605/2020
	BETWEEN	TAI FI CHIU Appellant
	AND	THE KING Respondent

Hearing:	26–27 October 2022 (further submissions received 13 March 2023)
Court:	Cooper P, Venning and Palmer JJ
Counsel:	L O Smith for Appellant in CA14/2020 M Kan for Appellant in CA15/2020 M W Ryan and J E Tullock for Appellant in CA105/2020 D B Stevens for Appellant in CA396/2020 M J Taylor-Cyphers for Appellant in CA424/2020 A M Simperingham and K C Leung for Appellant in 605/2020 B J Thompson and P R McNabb for Respondent
Judgment:	14 September 2023 at 11.00 am

JUDGMENT OF THE COURT

1. The applications by Hao Li, Yiu Wai Chiang and Tai Fi Chiu to extend the time for appealing are granted.
2. The application by Hao Li to adduce further evidence is declined.

100. The conviction appeals by Hao Li and Tai Fi Chiu are dismissed.

4. The sentence appeal of Wai Fat Wong is allowed in part and the order that he serve a minimum period of imprisonment is set aside.

E All other sentence appeals are dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper P)

Table of Contents

	Para No
Introduction	[1]
The offending	[10]
The conviction appeals	[33]
Hao Li	[33]
Tai Fi Chiu	[51]
The sentence appeals	[66]
Sentencing for methamphetamine offending	[68]
Sentencing Judge’s approach	[78]
Ricky Leung	[80]
Wai Fat Wong	[83]
Tai Fi Chiu	[113]
Hao Li	[125]
Yiu Wai Chiang	[140]
Zhi Zhao Tan	[154]
Chi Leung	[171]
Result	[183]

Introduction

• [1] The six appellants were each convicted of charges connected to their respective roles in offending relating to the importation of significant amounts of methamphetamine.
• [2] On 30 January 2019, Tai Fi Chiu pleaded guilty to one charge of importing methamphetamine,^[1] and two charges of possession of methamphetamine for supply.^[2] On 8 February 2019, Yiu Wai Chiang pleaded guilty to one charge of possession of methamphetamine for supply.^[3] Wai Fat Wong pleaded guilty to three charges of importing methamphetamine,^[4] and two of possession of methamphetamine for supply on the morning of the trial, 11 February 2019.^[5]
• [3] The other defendants were found guilty by the jury. Hao Li, Zhi Zhao Tan and Chi Wa Leung were each convicted of one charge of possession of methamphetamine for supply.^[6] Chi Leung shares a surname with a co‑offender, Mr Ricky Tat Choi Leung, and will be referred to by his first name for clarity.
• [4] The trial Judge, Moore J sentenced the appellants to terms of imprisonment ranging from 16 years and two months to 25 years and six months (the principal sentencing judgment).^[7] One of the appellants, Mr Wong, was sentenced separately from the others.^[8] Ricky Leung, who was sentenced to 27 years six months’ imprisonment, has not appealed.
• [5] Ms Li and Mr Chiu appeal against both their conviction and sentence. Chi Leung originally appealed his conviction but abandoned his conviction appeal on 26 November 2020. The remaining appellants appeal against sentence only.
• [6] The appeals of Ms Li, Mr Chiang and Mr Chiu were filed out of time by 19 working days, seven and a half months, and ten months respectively. Their applications to extend the time for appealing have been explained and relate primarily to difficulties they experienced in arranging legal representation while in custody, given language difficulties they encountered. Extensions of time are not opposed and in the circumstances the applications are granted.
• [7] This appeal was heard on 26 and 27 October 2022. At the time of sentencing, and also when the appeals were heard, this Court’s decision in Zhang v R was the guiding authority on sentencing for methamphetamine-related offending.^[9]
• [8] While our decision remained reserved, the Supreme Court issued its judgment in Berkland v R.^[10] The Supreme Court judgment stated that the application of its decision amended the “significant” role profile described by this Court in Zhang.^[11] The Supreme Court said the amended significant role profile should apply not only to sentences imposed after the issue of the judgment, but also to all sentencing appeals “currently on foot”.^[12] As the present appeals were clearly “on foot”, we gave the parties the opportunity to make further written submissions on any implications of the substantive changes effected by Berkland.^[13] Those submissions have been provided and having considered them we are now in a position to issue our judgment on the appeals.
• [9] In the judgment below, we give a general account of the offending for which the appellants were convicted and sentenced. We then address the conviction appeals of Ms Li and Mr Chiu. Finally, we address the sentences imposed by the Judge in the course of dealing with each sentence appeal. For the reasons we give, Mr Wong’s sentence appeal is allowed in part. All other appeals are dismissed.

The offending

• [10] The following account is largely based on the facts set out by Moore J in the principal sentencing judgment.^[14]
• [11] The Crown’s case was based on three importations of methamphetamine which all arrived in New Zealand over a period of approximately one year. In the case of each importation, the methamphetamine was sourced from China. The total combined weight of the drug imported was 267 kg. The Crown estimates that this amount of methamphetamine would have a retail value between $48 and $67 million. The Judge considered that the total combined weight of the imported methamphetamine made it one of the largest importations this country had seen.^[15]
• [12] The method of importation was as follows. Methamphetamine was dissolved in gypsum, a concrete-like substance, which was poured into metal cases in the form of outdoor umbrella stands. Each stand was separately packaged and shipped to New Zealand in a container, as part of larger consignments of outdoor furniture.
• [13] The Judge identified three phases in which those involved in the importation participated.^[16] The first phase involved setting up the systems and “ground work” to land the drugs in New Zealand and clear them into storage ready for the second phase. The second phase involved securing a venue and equipment for the purpose of extracting the drug from the gypsum. The third phase involved bringing those who would undertake the extraction process into New Zealand.
• [14] Ricky Leung was described by the Judge as having “paved the way.”^[17] He was responsible for setting up the systems to receive the drugs when they arrived in New Zealand and made numerous visits here between April 2016 and September 2017. For both his first and second visit Ricky Leung stayed for nine days before returning for a period of three months on 28 September 2016.
• [15] The first importation (of 48 kg) of methamphetamine took place on or before 14 October 2016 when the first of the containers of outdoor furniture arrived. There were seven umbrella bases wrapped inside cardboard boxes. Each contained gypsum and methamphetamine. The importation was cleared by New Zealand Customs Services (Customs Services) and later delivered to a storage unit in Parnell. Mr Leung left the country on 25 November 2016, returning again for brief periods in June and July 2017. During a visit that began on 9 July 2017, he hired a storage unit in Grey Lynn.
• [16] The second importation (of 109 kg) took place around 14 August 2017. On this occasion, the methamphetamine was contained in 16 umbrella bases. On this occasion, the importation was intercepted and inspected by Customs Services. The bases were tested, and methamphetamine was detected. The gypsum containing the drug was removed and replaced with a substance of similar appearance. A small quantity of methamphetamine was left in one of the bases and, on 23 August 2017, a controlled delivery was made to the consignee’s address; a storage facility in Onehunga. This shipment was received by an innocent agent acting on instructions from Ricky Leung, who sent him money from China to cover costs.
• [17] On 11 September 2017, Messrs Chiu and Wong arrived in New Zealand together with Ms Li, on a flight from Hong Kong. The Judge described this as the second phase of the operation.^[18] The three hired a car and checked into a hotel, before going to a storage facility in Takapuna. Mr Chiu signed a contract for the hire of a storage unit for the period from 12 September to 11 October 2017. Mr Wong’s name was given as an alternate contact person. The Judge found this storage facility was plainly leased to house the third importation which at that time was en route to New Zealand by boat.^[19]
• [18] On 14 and 15 September, Ms Li and Mr Chiu made enquiries about rental properties. On 15 September Mr Chiu signed a one-month tenancy agreement on a house in Manurewa, to commence on 19 September. On 16 September 2017, Mr Ricky Leung arrived back in New Zealand from Hong Kong. He was met at the airport by the innocent agent he had been using from the outset of the operation.
• [19] On the following day, Ricky Leung and Mr Chiu were observed visiting and inspecting the storage unit in Grey Lynn which had been earlier rented by Mr Leung. Mr Chiu took photographs. Later that day, Ms Li and Mr Wong went to Noel Leeming, in Manukau City where they purchased a large “side-by-side freezer”.^[20] Ms Li paid in cash.
• [20] Then, on 18 September Mr Tan, Chi Leung and Mr Chiang arrived together in Auckland on the same flight from Hong Kong. The Judge noted this was the third phase; “the arrival of the workers.”^[21] Mr Wong and Mr Li met them at the airport and took them into the city to a hotel.
• [21] Within hours, Mr Wong, Ms Li, Mr Chiu, Mr Chiang, Mr Tan and Chi Leung got into a Toyota Estima (the Estima) which Mr Wong had hired a few days earlier. They drove to a shopping complex in Botany, where they purchased three large stainless steel cooking pots, three hot plates and a variety of other items capable of being used to extract the drug from the gypsum substrate. They then drove to Bunnings Warehouse (Bunnings) in Botany. Mr Chiang, Mr Chiu, Mr Tan and Mr Wong went into the shop while Ms Li and Chi Leung remained in the Estima. Plugs, duct tape, splash goggles, wrecking bars, chisels, hammers, angle grinders, wrenches, a multi-mixer tool and carpet protectors were purchased. The Judge noted that those tools and the other items had obviously been bought for the purpose of breaking up the gypsum.^[22]
• [22] Then, on the following day, 19 September 2017, the Manurewa tenancy commenced. Just after 9 am, the freezer which had been purchased two days earlier by Mr Wong and Ms Li was delivered to the property. Mr Wong and Ms Li were present to receive it and Mr Wong signed for it.
• [23] Later that morning, Ms Li and Mr Wong visited a refrigeration specialty shop in Greenlane where they purchased a vacuum pump. At another commercial premises, they bought two electric thermometers. Later, Ricky Leung picked up Mr Chiu in a rental car. The two drove to the Onehunga storage unit where they removed six boxes from the container and placed them in the car. These were the boxes which had been the subject of the controlled delivery. The two men then drove back into the city. Mr Chiu got out of the car. Mr Chiang replaced him. Ricky Leung and Mr Chiang then drove out to Botany and parked at the shopping mall where they unloaded the six boxes. Ricky Leung then drove off without Mr Chiang. A few minutes later, the Estima arrived and stopped beside Mr Chiang and the boxes. Mr Wong was driving and Ms Li was in the passenger seat. In the back were Mr Chiu, Mr Tan and Chi Leung.
• [24] Although Ricky Leung had driven away, he did not leave the carpark immediately. Instead, he drove to the rear of the shopping complex from where he could observe that the cargo left on the road with Mr Chiang had been picked up. He then returned to the city.
• [25] Mr Chiu, Chi Leung and Mr Wong loaded the boxes into the back of the Estima before driving to the Manurewa house. Ms Li went inside while the others went to a nearby park before returning to the house and unloading the boxes.
• [26] Mr Wong then left the Manurewa address in the Estima, driving Ms Li, Mr Chiu, Chi Leung and Mr Tan. Only Mr Chiang remained behind. Mr Wong drove to the Onehunga storage facility and unlocked the same container from which Mr Chiu and Ricky Leung had unloaded the six boxes earlier in the day. Ms Li remained in the car, whilst the others opened the container and started to load boxes into the back of the Estima.
• [27] In the meantime, Mr Chiang started to open the boxes at the Manurewa property. Apparently alerted to something by their condition, he sent a text to Mr Tan telling him that there was “a situation”. He told Mr Tan not to come back yet. Mr Tan could be seen communicating with those inside the container. He placed his hand on a box being carried by Chi Leung, who immediately returned it to the container. The other men exited the container, unloaded the boxes from the back of the Estima and returned them to the container. The container was locked before the Estima returned to the city.
• [28] Mr Chiang sent another message to Mr Tan. He wanted to leave Manurewa. They both agreed that Mr Chiang should get a taxi before the Estima continued on into the city. It stopped in Federal Street, and its occupants left the vehicle and dispersed. This was captured on CCTV footage. Mr Chiu ran away, but was pursued and caught by police. Mr Tan, Ms Li, Mr Wong and Chi Leung were also apprehended.
• [29] Later that afternoon, Mr Chiang returned to the hotel by taxi. He and Ricky Leung met at a nearby Chinese café before walking to the hotel where they were arrested.
• [30] The rooms in which they had been staying were searched. In the room shared by Mr Wong and Ms Li, a suitcase containing documentation linked to the importations was found. The property in Manurewa was later searched, and the six boxes were located there. The top box appeared to have been opened. The newly purchased freezer was seen in the laundry and in the spare room were the items purchased the day before at a cookware shop and at Bunnings.
• [31] On or about 13 October 2017, a further consignment of four items arrived in Auckland. Although the consignment was declared as dry-cleaning machines, it contained various heavy-duty grinding equipment. The Judge noted that this was plainly intended to assist with the extraction of the methamphetamine.^[23]
• [32] The third drug importation (110 kg) arrived on approximately 22 October 2017. As with the previous two, it contained a wide range of outdoor furniture, including 17 umbrella bases. They were tested and found to contain methamphetamine dissolved in the gypsum substrate.

The conviction appeals

Hao Li

• [33] Ms Li was convicted at the trial of possession for supply in respect to the second importation, 109 kg of methamphetamine. Her conviction appeal was advanced on the basis of a conflict of interest said to have arisen because her trial counsel, Ms Pecotic, acted for both Ms Li and her husband Mr Wong.^[24] Mr Ryan for Ms Li contends that, as a result of the conflict of interest, she was deprived of a fair trial and a miscarriage of justice resulted.
• [34] There are two specific complaints made about Ms Pecotic’s representation of Ms Li. First, it is said that she breached r 6.1 of the Lawyers and Conveyances Act (Lawyers: Conduct and Client Care) Rules 2008 by failing to advise Ms Li that she should be separately represented. This assumed importance because Ms Pecotic was aware that Mr Wong intended to plead guilty as early as 10 September 2018 and, at that point, Ms Li should have been advised to seek independent representation so that Mr Wong could be summonsed to give evidence in support of the appellant at the trial. Mr Ryan submits that this deprived Ms Li of corroborative evidence she could have called, consistent with Mr Wong’s instructions that Ms Li was innocent and he was solely responsible.
• [35] The second complaint made is that Ms Pecotic did not lead evidence from Ms Li that she had suffered abuse at the hands of Mr Wong, and was in fact a “battered woman”.
• [36] There is an immediate difficulty with the first submission inasmuch as Mr Wong’s instructions to Ms Pecotic had been that he did not wish to give evidence. Mr Ryan submits that had Ms Li been independently advised, Mr Wong could have been summonsed and thereby compelled to give evidence at the trial. That however is contrary to s 73 of the Evidence Act 2006. Section 73 relevantly provides:
  73. Compellability of defendants and associated defendants in criminal proceedings

...

(2) An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding unless—

(a) the associated defendant is being tried separately from the

defendant; or

(b) the proceeding against the associated defendant has been determined.

(3) A proceeding has been determined for the purposes of subsection (2) if—

(a) the proceeding has been stayed or the charge against the associated defendant has been withdrawn or dismissed; or

(b) the associated defendant has been acquitted of the offence; or

(c) the associated defendant, having pleaded guilty to, or having been found guilty of, the offence, has been sentenced or otherwise dealt with for that offence.

...

• [37] It is plain that Mr Wong could not have been compelled to give evidence at Ms Li’s trial as, although he pleaded guilty on the morning of the trial, he had not been sentenced. Consequently, the proceeding against him was not one which had been “determined” in accordance with s 73(3)(c) of the Evidence Act.
• [38] In an affidavit sworn in support of the appeal, Ms Li recorded that she was disappointed by Ms Pecotic and complained that she had not properly advised her about the risks of going to trial. Had she been properly advised about the strength of the Crown case and the likelihood she would be found guilty at the trial, she might have pleaded guilty at an earlier stage, especially if she had been made aware of the guilty plea discount. She mentioned that she had told Ms Pecotic that Mr Wong was controlling and that he abused her. She also drew attention to the fact that Ms Petotic spoke to her in English and had not brought an interpreter to their first meeting, despite the fact that she did not speak English proficiently. She also recorded Ms Pecotic’s advice that Mr Wong was “not a good witness to give evidence.”
• [39] In her affidavit in response, Ms Pecotic recorded that she did not agree or accept the statements made by Ms Li in her affidavit. Ms Pecotic recorded her view that Ms Li’s English was very good, so that she did not see a need to have an interpreter at the first few meetings, but noted that in later meetings she had a Court‑approved Interpreter with her. Ms Li’s instructions were that Ms Li had simply been in New Zealand on a holiday and had no involvement in any of the offending. This was a position with which Mr Wong agreed. Ms Pecotic noted that she had discussed with Ms Li the fact that she was also acting for Mr Wong, and had explained that as Ms Li’s husband was likely to plead guilty, she would not be representing both of them at the trial. She also told Ms Li that Mr Wong was “100% supportive of her”, did not want her to be convicted and wanted to take the sole blame for everything, although the Crown believed she was a willing participant so they would not withdraw the charge against her.
• [40] Apart from the difficulty that Mr Wong did not wish to give evidence and was not compellable, it is most unlikely that Mr Wong’s evidence would have assisted Ms Li’s defence. At the disputed facts hearing Mr Wong claimed that it was only after he arrived in New Zealand that he came to understand that he had become involved in an unlawful drug dealing operation. He attributed his involvement to naivety, and denied he had a significant role. This evidence was found to lack credibility,^[25] and had it been given at the trial, might well have adversely affected the jury’s perception of Ms Li. However, as events transpired, she was able to, in Mr Wong’s absence from the trial, give evidence that he had effectively led her astray. Her evidence included the following:

... usually in my household all the major matters are dealt with by my husband, I usually don’t deal with them. He was helping his friend out and I was following him here to take a holiday, I wasn’t getting into his business.

...

... I was following my husband’s words, doing whatever he told me to. ...

...

... I trusted my husband too much at the time, I have never doubted him.

...

I have always been very obedient to my husband. I do everything, anything that he ask me to help him to do. I respect him and I trust him so I never doubted any reasons that he wants to do any things.

...

I was not in control of this at all myself, so I was following my husband and he goes, wherever he goes I follow him.

...

I was just following my husband’s instructions ...

• [41] In characterising herself as essentially misled by her husband, Ms Li was able to rely on the fact that there was an age gap of 24 years between them, and as was emphasised on her behalf by counsel in closing, she had no reason to doubt the innocent explanation Mr Wong had allegedly given her for why they had come to New Zealand. Her account enabled Ms Pecotic to tell the jury that Ms Li had essentially been duped into coming to New Zealand. The prospect that Mr Wong might also had given evidence to the effect that he too had been misled and thought that he was simply helping a friend with his business could very well have been counterproductive.
• [42] This is not a case where it is alleged directly that a failure to call Mr Wong amounted to counsel error. We do not think such a proposition could be sustained. Rather, it is said essentially that the fact that Ms Pecotic acted for both Ms Li and Mr Wong meant that Ms Li was deprived of the opportunity to obtain independent advice as to whether Mr Wong should have been called.
• [43] In the circumstances, the relevant question is whether because of her engagement for Mr Wong Ms Pecotic was unable properly to discharge her duties to Ms Li. We are not persuaded that was the case. In Duncan v R, the counsel represented two defendants at the trial and the informed consent of one of them was not obtained.^[26] The Court observed that the failure to obtain consent was only material if during the trial counsel had in fact been inhibited in the discharge of her duty to defend the appellant to best advantage.^[27] It was only if that was the case that a miscarriage of justice would have resulted.
• [44] The Court adopted the statement of Lord Steyn in Mills v R on the responsibilities of trial counsel in representing more than one accused:^[28]

If there is, or might be, a conflict of interest, [counsel] must promptly advise separate representation. Any doubt must be resolved in favour of separate representation. Those duties of counsel arise as soon as he is engaged. It is, however, a continuous duty. If at any time before the trial a conflict arises, counsel must advise separate representation of the defendants. If contrary to all expectations such a position arises at trial, counsel may be obliged to seek a discharge of the jury in order to enable separate representation at a new trial. These propositions flow from the right of [an] accused defendant to have his defence properly and effectively placed before the jury. It is an integral part of his constitutional right to a fair trial. But their Lordships add one qualification. The province of the law is practical affairs. The question is whether there is, or might be, a real risk of a conflict of interest inhibiting counsel in the discharge of his duties on behalf of one or more defendants. In a practical world wholly theoretical fanciful risks can be disregarded.

• [45] We are satisfied that in this case Ms Pecotic was not inhibited in any material way by her joint representation of both Mr Wong and Ms Li prior to the trial. In any event, Mr Wong was plainly very reluctant to give evidence and was not compellable. Further, his evidence that he had been misled into coming to New Zealand would have likely been contradictory to Ms Li’s account that she too had been duped, by Mr Wong. Consequently, we are satisfied that this ground of the conviction appeal cannot succeed.
• [46] The second issue raised in support of the conviction appeal was that Ms Pecotic did not pursue as a ground of defence Ms Li’s allegation that she was suffering from Battered Woman Syndrome, having been frequently physically assaulted by Mr Wong.^[29] In her affidavit, Ms Li said that she had told Ms Pecotic that her husband was controlling and that he abused her at their “first legal meeting”. She then said that she had very little contact with Ms Pecotic until the week before the trial. During that week, Ms Pecotic visited her every day to discuss the details about the trial. According to Ms Li, Ms Pecotic advised her not to give evidence that Mr Wong was violent, and she had followed that advice.
• [47] In her affidavit in response, Ms Pecotic referred to a meeting that she had with Ms Li and an interpreter on 2 February 2019. At the meeting Ms Li showed her two pages of translated writing, stating that she had someone in the jail who could help her with translations. In a file note, Ms Pecotic recorded that for the first time Ms Li had said that she was a battered wife, that Mr Wong regularly beat her and was manipulative towards her. Ms Pecotic recorded that Ms Li had never previously made any mention of that, including when they met to settle the form of the written statement a week earlier. It is clear that Ms Pecotic was sceptical of Ms Li’s claims that she was permanently bruised on her leg as a result of Mr Wong having hit her repeatedly with a heavy object on the leg, that he grabbed her hair and pulled it and hit her. Ms Pecotic told Ms Li that it was important that she told her the truth and that if a battered woman defence was to be advanced when not true that would be “a very bad idea.”
• [48] In her affidavit, Ms Pecotic said:

After discussing this with her, it transpired that this 'defence' had been suggested to her by some of the other inmates in custody as a good suggestion to 'get off' her charges and was in fact a lie. I advised her she cannot lie to the jury and we cannot lead evidence which is a lie.

• [49] We note that Ms Li did not respond to Ms Pecotic’s evidence about this. Nor is there any suggestion in the evidence that Ms Li did not accept, at the time, Ms Pecotic’s advice that evidence should not be lead alleging violence against her by Mr Wong. There is no basis on which Ms Pecotic’s advice can be questioned, given Ms Li’s admission to her that the claim about Mr Wong’s violence was incorrect.
• [50] In all the circumstances, we are satisfied that no miscarriage of justice arose on this ground either. Consequently, the appeal against conviction is dismissed.

Tai Fi Chiu

• [51] Mr Chiu pleaded guilty to one charge of importing methamphetamine relating to the second importation, and to possession for supply in respect of the first two shipments. Mr Chiu appeals against his conviction on one of three charges to which he pleaded guilty on 30 January 2019.
• [52] The three charges alleged respectively that he was in possession for supply of the methamphetamine imported in the first importation, importing the methamphetamine in the second importation and possession of that methamphetamine for supply. The Crown’s case was that he was in possession of the methamphetamine for supply during the time he was in New Zealand from 11 September 2017 until his arrest on 19 September. The appeal is against the conviction on the charge of possession for supply of the methamphetamine from the first importation.
• [53] Mr Simperingham advanced the appeal on two bases. First, Mr Chiu claimed he pleaded guilty in error, and that he had no knowledge or involvement in the events that gave rise to that charge. Second, he said that he could not have been properly convicted on the basis of the Crown summary of facts because it did not allege he had any knowledge or involvement in the first importation and no evidence had been disclosed to him or led during the trial of the other defendants establishing he had knowledge of the importation.
• [54] The claim that he pleaded guilty in error was initially supported by affidavit evidence by Mr Chiu asserting communication difficulties between him and Mr Newell arising from the fact that Mr Newell had dealt with him using the services of a Mandarin-speaking interpreter: Mr Chiu stated he spoke Cantonese and was not proficient in Mandarin. However, the Crown called evidence from Mr Newell in which he stated he had taken instructions from Mr Chiu with the assistance of a Cantonese interpreter, and Mr Chiu accepted that was the case under cross‑examination. He continued to rely on communication difficulties, however, asserting that he had told Mr Newell that he was not involved in nor had any knowledge of the methamphetamine imported in 2016. He also claimed Mr Newell told him it was no use pleading not guilty to that charge and pleading guilty to the others as he would be sentenced to a substantial term of imprisonment in any event.
• [55] A further ground on which he claimed to have pleaded guilty in error was that when he was arraigned on 30 January 2019 there was only a Mandarin interpreter present in the Court. He claimed in his second affidavit that each charge was read to him, but he told the interpreter he had no knowledge of the charge relating to the 2016 importation. At that point “the lawyer approached me, and said through the interpreter that I said to him earlier wanted (sic) to plead guilty, how come you wanted to plead not guilty now?” Mr Chiu said he did not know what to do, so just said “yes yes yes in Chinese.”
• [56] Mr Newell’s evidence was different. He said he had no recollection of Mr Chiu telling him he had not been involved in nor had any knowledge about the 2016 methamphetamine importation. If Mr Chiu had told him that, Mr Newell stated that he would not have proceeded with the entry of the guilty pleas and sentencing. Mr Chiu had given him no reason to think he was confused about the charges he was facing and was consistently anxious to plead guilty on all matters. He denied advising him that pleading not guilty to the charge would not have affected the sentencing outcome.
• [57] It was also Mr Newell’s evidence that when he took instructions in relation to the charges at a meeting on 24 January 2019, the Cantonese interpreter who he had arranged to be present read each charge and the summary of facts to Mr Chiu, who signed both documents and wrote “I plead guilty” in Chinese script below each charge. During this process Mr Chiu complained that he had already been over the documents with counsel previously instructed, Ms Pecotic, and preferred not to hear it all again. Mr Newell insisted the documents be read to him in Cantonese. According to Mr Newell, “Mr Chiu was clear, to the point of being abrupt, in his insistence that he enter pleas of guilty to each of the three charges he faced.” Mr Newell recalled this was consistent with the instructions he had received from his instructing solicitor.
• [58] As to the arraignment, Mr Newell said that there was again a Cantonese interpreter present. He had no recollection of the exchange Mr Chiu claimed had taken place, and the arraignment proceeded in the usual manner. He added if Mr Chiu had indicated he was in fact not guilty he would have taken “elaborate written instructions” from him together with the interpreter and advised his instructing solicitor of the significant change to his instructions. He stated that he likely would have sought leave to withdraw given the earlier instructions from Mr Chiu that he was in fact guilty. Mr Newell stated that he would not have proceeded to sentencing. He added that instructions that Mr Chiu was not guilty would have been a complete reversal of his previous instructions and would have taken him by surprise.
• [59] For completeness we note that in a third affidavit Mr Chiu claimed that he could not remember what languages had been spoken on each occasion, whether Mandarin or Cantonese, and made a new assertion that only two charges were read to him at the meeting on 24 January 2019, an assertion that is of course contrary to the documentary evidence of his signature against each charge on the Crown charge notice and his written notation that he pleaded guilty.
• [60] We accept Mr Newell’s evidence and prefer his account to Mr Chiu’s which we reject as implausible. We have no doubt that he was fully aware that he was pleading guilty to each charge. Mr Newell’s account of what transpired on arraignment was supported by a transcript of the proceeding obtained by the Crown demonstrating that a Cantonese interpreter had been used and that Mr Chiu entered a guilty plea to each charge without delay immediately after it had been read to him.
• [61] In the end, Mr Simperingham was left with an argument that there was no evidence that the charge about possession of the methamphetamine imported in 2016 was explained to him, and a claim that he had made a mistake in pleading guilty to the charge because “something had been lost in translation”.
• [62] Exceptional circumstances are required before an appeal against conviction will be allowed following entry of a guilty plea, and the appellant must show that a miscarriage of justice will result if the conviction is not overturned.^[30] Circumstances which might give rise to a miscarriage of justice include those where the appellant did not appreciate the nature of the charge or did not intend to plead guilty to a particular charge: the plea is vitiated by a “genuine misunderstanding or mistake”, but that will be difficult to show where the defendant has been represented by counsel at the time the plea is entered.^[31]
• [63] Another kind of case is where on the admitted facts the defendant could not have been convicted of the offence charged.^[32] However, Mr Simperingham accepted in argument that there was evidence on which Mr Chiu could have been convicted of possession for supply of the methamphetamine imported in 2016. That concession was properly made given the fact that Mr Chiu had been captured on CCTV visiting the storage unit where methamphetamine, including that imported in 2016, was being stored. There was also evidence establishing he possessed an access card and padlock keys for the storage facility, as well as a business card with the number of the particular storage unit used recorded on it.
• [64] Mr Chiu was not charged with importing the methamphetamine in the first importation. The charge was that he possessed it for supply, not that he imported it. The wording of the charge, and the summary of facts, which were translated and read to Mr Chiu on 24 January made that plain.
• [65] In the circumstances we are satisfied that the conviction appeal cannot succeed and must be dismissed.

The sentence appeals

• [66] We will address each sentence imposed by the Judge in conjunction with the corresponding sentence appeal in turn. For completeness, we also address the sentence imposed on Ricky Leung.
• [67] Before addressing the sentence appeals, we must discuss the approach to be applied in accordance with Zhang v R and Berkland v R.^[33] Counsel’s submissions to this Court originally reflected the law as it was articulated in Zhang. While this Court’s decision was reserved, the Supreme Court issued their decision in Berkland. As noted earlier, we gave counsel the opportunity to make further submissions taking into account the judgment in Berkland. Counsel for Mr Wong, Mr Chiu, Mr Chiang and Chi Leung availed themselves of that opportunity, as we discuss below in the context of each of those appeals. We also received supplementary submissions from Mr Thompson for the Crown.

Sentencing for methamphetamine offending

Zhang v R

• [68] Sentencing for methamphetamine offending was the subject of a comprehensive review by a Full Court of this Court in Zhang v R.^[34] As a consequence of that review, the Court departed from the approach taken in the previous guideline decision of this Court in R v Fatu.^[35] Although it retained the Fatu quantity bands, this Court made significant modifications in Zhang.^[36] It confirmed that the role played by the offender is an important consideration in fixing culpability and, consequently, the stage one sentence starting point.^[37]
• [69] The Court set out the new sentencing bands as follows:^[38]

	Former: Fatu	New: Zhang
Band one: < 5 g	2–4.5 years	Community to 4 years
Band two: < 250 g	3–11 years	2–9 years
Band three: < 500 g	8–15 years	6–12 years
Band four: < 2 kg	10 years to life	8–16 years
Band five: > 2 kg	10 years to life	10 years to life

• [70] The Court then referred to a categorisation of roles based on considerations applied in the United Kingdom.^[39] The Court observed that, when assessing role, sentencing judges:^[40]

Role
Lesser	Significant	Leading
Performs a limited function under direction;	Operational or management function in own operation or within a chain;	Directing or organising buying and selling on a commercial scale;
engaged by pressure, coercion, intimidation;	involves and/or directs others in the operation whether by pressure, influence, intimidation or reward;	substantial links to, and influence on, others in a chain;
involvement through naivety or exploitation;	motivated solely or primarily by financial or other advantage, whether or not operating alone;	close links to original source;
motivated solely or primarily by own addiction;	actual or expected commercial profit; and/or	expectation of substantial financial gain;
little or no actual or expected financial gain;	some awareness and understanding of scale of operation.	uses business as cover; and/or
paid in drugs to feed own addiction or cash significantly disproportionate to quantity of drugs or risks involved;		abuses a position of trust or responsibility.
no influence on those above in a chain;
little, if any, awareness or understanding of the scale of operation; and/or;
if own operation, solely or primarily for own or joint use on non-commercial basis.

... may find it helpful to have regard to the Council’s descriptions of roles and relevant indicia to be taken into account. We set these out below, modified slightly to reflect New Zealand circumstances. We observe that indicia 2, 3 and 4 for “lesser role” categorisation are descriptive of conduct. Any discount for associated mitigating personal considerations is a matter for the second sentencing stage.

Berkland v R

• [71] In Berkland v R, the Supreme Court gave further consideration to the role categories described in Zhang.^[41] The Court emphasised that sentencing is an intensely factual inquiry: assessing the role of the offender is a fundamental component of assessing gravity and culpability.^[42] It noted the potency of role will vary depending on the facts, potentially effecting movements both within and between the “quantum driven” bands.^[43] In principle, role could be more impactful than quantum, if justified by the circumstances. That could be the case where for example the circumstances demonstrate that irrespective of quantum the offender’s role in relation to the offending falls within the lower end of the “lesser” role.^[44] The Supreme Court also observed that while the three role categories provide a useful lens through which to view the facts, they are a tool to assist evaluation and not a “straightjacket”.^[45] In the analysis, all facts going to role are relevant, not just the ones approximating the hypothetical facts identified in one or other of the categories. Further, category borders are likely to be “porous”.^[46]
• [72] The Court went on to consider the core characteristics of, and differences between, the leading and significant roles. Having done so, it considered that the “significant role” classification of Zhang warranted “some reformulation in two matters of detail.”^[47]
• [73] The Court accepted that the “leading” role identified in Zhang as involving “directing or organising buying and selling on a commercial scale” would be a description that applied generally. The Court continued:^[48]

The essential characteristic of leaders is that they lead. They are the initiators, designers, controllers and (usually the) profit-takers at each of the several stages in the commercial dealing chain from manufacture or importation to supply. They expect and obtain substantial financial gain.

• [74] The Court contrasted that with the essential characteristic of “significant players”, who it described as “important enablers in the chain who take their orders from leaders.”^[49] However, the Court was concerned with the language “operational or management function” appearing in the first listed characteristic of the significant role description in Zhang. The point made was that the operational and management functions will not always be interchangeable; managers (directed by leaders) were likely to be more culpable than those whose tasks are merely operational.^[50] The Court said those at the upper end of the significant range could be expected to manage aspects of the overall operation with at least some knowledge of how the pieces fit together. They would direct and engage others in the course of managing a significant aspect of the operation. The Court continued: ^[51]

Purely operational functions will not usually place the offender at the upper end of significant unless they exercise a high degree of autonomy in the performance of functions that are significant to the operation or there is some distinctive element of the operational role justifying its placement at the upper end.

• [75] Those offenders were to be distinguished from those falling within the middle and lower end of the significant range, who are unlikely to be exercising managerial functions or to have real autonomy in the performance of their functions.^[52]
• [76] The second matter to which the Supreme Court turned its attention was the fourth criterion for the “significant” role, specifically its reference to “actual or expected commercial profit.”^[53] The Court said that this was of uncertain application. It considered that for the significant role profile, financial gain rather than commercial profit would be the more appropriate descriptor. Adjusting the profile in that way would bring more coherence with the equivalent items under the lesser and leading roles. It observed:^[54]

Those at the upper end of significant can be expected to have been paid in a way which is broadly commensurate with the risks that are run and the overall profitability of the operation. By contrast, a person in the middle to lower range is typically required to carry a greater share of the risks than the reward justifies.

• [77] In the result, the Court amended the description of the significant role profile to read:^[55]

Significant

1. Management function in operation or chain where, under direction from a leader, this entails directing others in the operation whether by pressure, influence, intimidation or reward;

2. operational function, whether operating alone or with others;

3. motivated solely or primarily by financial or other advantage;

4. actual or expected financial or other advantage, especially where commensurate with role and risk assumed; and/or

5. some awareness and understanding of the scale of the operation.

Sentencing Judge’s approach

• [78] The Judge formulated starting points as directed in Zhang,^[56] under which quantity is an important measure of culpability.^[57] The Judge found all the offenders “s[a]t comfortably” in band five, because of the very substantial amounts of methamphetamine involved in the offending.^[58] The Judge then turned to address the sentence for each defendant with reference to their respective role in the offending. He treated Mr Wong and Ricky Leung as having had leading roles. He regarded Mr Chiu and Ms Li’s roles as significant and the roles of Mr Chiang, Mr Tan and Chi Leung as lesser.

• [78]
• [79] The result of the sentencing process is summarised in the following table:

Defendant	Quantity	Starting point	End sentence	MPI
Mr Wong	267 kg (imports 1, 2 & 3)	31 years	25½ years	8½ years
Ricky Leung	267 kg (imports 1, 2 & 3)	30 years	27½ years	9 years
Mr Chiu	157 kg (imports 1 & 2)	26½ years	19 years, 2 months	8½ years
Ms Li	109 kg (import 2)	23 years	21 years	8 years
Mr Chiang	109 kg (import 2)	21 years	16 years, 2 months	7 years
Mr Tan	109 kg (import 2)	21 years	19 years	7½ years
Chi Leung	109 kg (import 2)	20 years	18 years	7½ years

Ricky Leung

• [80] Ricky Leung was convicted in respect of all three importations, involving a total of 267 kg of methamphetamine. He was also convicted of possession for supply in respect of the first and second shipments. The Judge considered that he was “plainly a senior figure in the operation,” although not the mastermind behind it (who had safely directed the operation from outside New Zealand).^[59] However, Mr Leung had come to New Zealand in advance of all co‑offenders and had essentially paved the way for the criminal enterprise. Counsel for Mr Leung accepted that the overall offending warranted a starting point of between 25 to 30 years’ imprisonment, and the Judge considered the offending serious enough to adopt a starting point of 30 years.^[60]
• [81] He allowed a discount of two and a half years in respect of mitigating considerations, principally the fact that Ricky Leung was a foreign national who would experience cultural and familial isolation making a long sentence in New Zealand more difficult for him.^[61] Also considered were his prospects of rehabilitation toward which he had already made efforts.^[62] The result was an end sentence of 27 and a half years’ imprisonment. The Judge also imposed a minimum period of imprisonment of nine years, which was in line with what defence counsel had submitted and lower than the minimum period of 10 years’ imprisonment sought by the Crown.
• [82] As noted above, Ricky Leung has not appealed.

Wai Fat Wong

Sentence under appeal

• [83] Mr Wong was sentenced separately from the other defendants, on 10 July 2020.^[63] He had pleaded guilty to four charges: one of possession for supply relating to the first importation of 48 kg; one of importation relating to the second importation of 109 kg; one of possession for supply following the second importation; and one of importation relating to the third importation of 110 kg.
• [84] In his sentencing notes, the Judge explained that while he originally intended to sentence Mr Wong at the same time as the other defendants, shortly before the scheduled date two unsworn affidavits had been filed on Mr Wong’s behalf. In his own affidavit, Mr Wong claimed that it was only after he arrived in New Zealand that it dawned on him that he might have become embroiled in an unlawful drug importation enterprise.^[64] While not seeking to vacate the guilty pleas, he denied his involvement was either planned or deliberate. He claimed he had been simply naive, wilfully blind and/or reckless and denied he had played a leading or significant role in the methamphetamine importation and distribution. These assertions were clearly contrary to the position maintained by the Crown at the trial and in the circumstances it was necessary for Mr Wong’s sentencing to be adjourned so that a disputed facts hearing could take place.^[65] The Judge rejected Mr Wong’s evidence and concluded he had played a leading role in the offending. He gave his reasons for rejecting Mr Wong’s evidence in a separate judgment (the disputed facts judgment).^[66]
• [85] The disputed facts judgment set out the Judge’s reasoning for concluding that Mr Wong was a key figure in the operation in some detail.^[67] The Judge was clearly influenced by the extensive documentation and other materials found in Mr Wong’s possession.^[68] He noted:

[71] First, and in my view of greatest significance, is the very substantial volume of documentary and other material found in Mr Wong's possession following his arrest. This included extensive hard copy documentation associated with the second importation, a packing list for the third importation, images of machinery and equipment and outdoor items consistent with the importations. There were many scribbled, handwritten notes and lists which Mr Wong accepted he had completed. These included documents which referred to the Manurewa address, lists mentioning Bunnings, The Warehouse, vacuum pumps, stainless pots, China Town and Wairau Park (refrigerator). Another note referred to Storage King, Richmond Road, Grey Lynn. Business cards were also found from Noel Leeming, cookware shops, refrigerator suppliers, industrial thermometer retailers and car rental companies. An even larger number of the documents were located on Mr Wong's laptop. Some of these, such as a copy of the innocent agent's passport, provide a link to the preparatory steps associated with the importations. There is also documentation relating to Best Budget International 99 Limited, consignment lists and packing lists consistent with the second importation. Normally, anyone in possession of this range of material would be, by necessary inference, a person inextricably connected at a high operational level to the wider enterprise. In terms of Zhang they would necessarily meet the classification of a leading role.

• [86] The Judge also noted that:

(a) It was Mr Wong who had possession of large quantities of New Zealand, Australian and Hong Kong currency, and who had made substantial cash purchases with Ms Li.^[69]

(b) Mr Wong had assumed responsibility not only for arranging transport for the group but also driving them around in the course of their varied activities.^[70]

(c) Mr Wong had arranged for Ms Li to make bookings for their travel to and accommodation in Auckland, as well as for Mr Chiu. If Mr Chiu had been the leader of the New Zealand phase of the activities, the Judge considered he would have met those costs.^[71]

• [87] In sentencing Mr Wong, the Judge noted that he had pleaded guilty to the second and third importations, as well as charges of possession for supply relating to the first and second importation.^[72] Although counsel pointed out that in respect of the first importation, Mr Wong’s guilty plea related to an amount less than the 48 kg actually imported, the Judge concluded that the difference between what he had possessed and the amount actually imported did not materially affect an assessment of his role.^[73]
• [88] The Judge considered that, on quantity alone, Mr Wong’s offending was close to the very top of the range, potentially attracting a sentence of life imprisonment.^[74] He noted in the Crown’s submission that Mr Wong should be placed above Ricky Leung in the hierarchy of those involved in the offending.^[75] That was because on his own evidence, Mr Wong had direct contact with the mastermind of the operation.^[76] The Judge also found that Mr Wong had led the group which arrived in New Zealand on 17 September, and was then engaged in setting up the systems to extract the drug before the police intervened. Mr Wong was “central to the obtaining of the necessary equipment for the extraction process” and had coordinated the activities of the group.^[77] It was a necessary inference that he had been entrusted to lead the team in New Zealand. While Ricky Leung had been responsible for the “front end of the operation,” it was Mr Wong who was responsible for and physically involved in the second and third phases.^[78] In the circumstances, the Judge adopted a starting point of 31 years’ imprisonment in respect of Mr Wong’s “senior and leading role” in the offending.^[79]
• [89] The Judge then allowed discounts because Mr Wong would be imprisoned in New Zealand, away from friends and family in China and with no means of independent support.^[80] He allowed a discount in the order of eight per cent for these considerations as he had done with Ricky Leung.^[81] This brought the notional sentence down to 28 years and six months.^[82] After considering discounts given to the other defendants for guilty pleas, he allowed a 10 per cent discount, notwithstanding the fact that Mr Wong’s guilty plea was entered at a very late stage in the process, and had been followed by an unsuccessful challenge to the Crown’s claim that he had played a leading role, requiring a full disputed facts hearing.^[83]
• [90] In the result, the Judge arrived at an end sentence of 25 and a half years, and ordered Mr Wong to serve a minimum term of eight and a half years.^[84]

Submissions on appeal

• [91] Mr Stevens submitted that the starting point adopted by the Judge of 31 years’ imprisonment was too high. There was no justification for a starting point above that applied to Ricky Leung and Mr Chiu. In any event, Mr Stevens argued that Mr Wong’s conduct placed him squarely within the updated “significant” category and that, having regard to Berkland, a starting point in the region of 27 years’ imprisonment would be more appropriate. The sentencing purposes of personal and general deterrence would then be adequately served by an end sentence in the region of 22 years’ imprisonment as opposed to the 25 and half years arrived at by the Judge.
• [92] The key point made by Mr Stevens was that having regard to what Mr Wong actually did, his conduct fell readily within the language used by the Supreme Court at [68] of Berkland. Quoting from the judgment, Mr Stevens submitted that:^[85]

(a) Mr Wong’s role was to “manage aspects of the overall operation with at least some knowledge of how the pieces fit together.”

(b) He “direct[ed]” others in the course of “managing a significant aspect of the operation.”

(c) There was nothing to suggest that Mr Wong exercised a “high degree” of autonomy.

(d) There was no clear evidence of what Mr Wong was expecting to be paid and no evidence that he was to receive a “comparatively large payment...” from the leaders.

• [93] Mr Stevens then drew a comparison with Mr Berkland, whom he submitted had extensive involvement in a large-scale commercial operation. Again, adopting language used in Berkland, Mr Stevens submitted that Mr Berkland had been found to be a “typical significant player” in the “mid-range” of that category.^[86] Given that Mr Wong’s offending involved hands on tasks and the management of a small team at the direction of others over the course of a week, his role should also be characterised as within the “mid-range of significant”.^[87]
• [94] Counsel also compared Mr Wong’s offending with the facts of R v Tuilotolava, in which the defendant was charged in relation to the importation of 501 kg of methamphetamine (having a value of between $130 and $150 million if sold by the kilogram) and participating in an organised criminal group.^[88] Downs J adopted a starting point of 32 years’ imprisonment, observing that Mr Tuilotolava had been present at almost every significant logistical phase of the operation and had a significant role in conveying instructions to the group.^[89] Others were sentenced by Moore J in relation to the same importation: Mr Fakaosilea and Mr Iusitini were sentenced on the basis of starting points of 29 and 32 years’ imprisonment respectively.^[90]
• [95] Mr Stevens also referred to R v Netzler, a case involving the importation of 500 kg of methamphetamine in which the defendant was charged with importing the methamphetamine, possessing it for supply.^[91] A starting point was adopted of 35 years’ imprisonment, Harland J describing Mr Netzler as a “crucial link in the importation chain” and a lead contact in New Zealand who was involved in the recruitment of others and the planning of the operation.^[92]
• [96] The final comparator relied on by Mr Stevens was R v Thai, in which 469 kg of methamphetamine had been imported concealed in electric motors imported in a container.^[93] Mr Thai faced two charges of possession of methamphetamine for supply: one relating to the 469 kg, and another relating to a separate amount of 26 kg.^[94] He had come to New Zealand for the sole purpose of drug dealing for substantial reward. Toogood J adopted a starting point of 30 years imprisonment for the most serious offence, referring to Mr Thai’s knowledge that he was involved in a large-scale operation and had played a “pivotal” role in executing the plan. The Judge acknowledged however that there was no evidence that Mr Thai was involved in financing the operation or having been in direct contact with the principals who had overall control. He accepted counsel’s submission that Mr Thai was in the “trusted lieutenant” category and not that of a leader”.^[95] Mr Te-Hira, who had a less significant role was sentenced on the basis of a starting point of 28 years.^[96]
• [97] Mr Stevens contrasted the amount of methamphetamine involved in this case with the more substantial amounts involved in the cases he referred to. He acknowledged that, in accordance with Zhang, quantity is not the sole consideration in determining culpability and that it is necessary to consider all the circumstances of the offending, including the role played by the defendant. But he claimed that Mr Wong’s role was comparable, although arguably less than, the roles of the defendants in the other cases discussed. Given the substantially greater amount of methamphetamine involved in the other cases, the starting point here of 31 years’ imprisonment was excessive. A starting point of between 27 and 28 years’ imprisonment would be more consistent with the other cases. In the result, he submitted an end sentence in the region of 22 years should be substituted for the 25 and a half years imposed.
• [98] Mr Stevens also pointed out that the minimum term of imprisonment imposed by the Judge of eight and a half years was unnecessary, being the period equivalent to the statutory minimum applicable under the Parole Act 2002 which Mr Wong would serve in any event.
• [99] For the respondent, Mr Thompson submitted that Mr Wong’s role was appropriately categorised as “leading” by the Judge. That meant that any amendments to the “significant” role description flowing from Berkland were irrelevant. He emphasised that after presiding at the trial over five weeks, and conducting a separate disputed facts hearing, the Judge was well-placed to assess Mr Wong’s role. It was in that context that the Judge had held that Mr Wong had “assumed the role of local operational manager and ... led the team” in New Zealand.^[97] The Judge concluded he had a “senior and leading role” in the offending.^[98] Mr Thompson submitted that it was inappropriate to compare Mr Berkland’s role with that of Mr Wong. In Berkland, Mr Berkland’s role was described as “a highly trusted ‘gofer’ who performed important functions for his boss under close supervision, and who bore disproportionate risk when compared to the reward.”^[99] In contrast, Mr Thompson submitted, Mr Wong was the leader within New Zealand of what was a “highly sophisticated and well-resourced” international drug operation.^[100]
• [100] Mr Thompson also argued that whether Mr Wong’s role was described as “leading” or within the upper end of “significant”, his offending was amongst the most culpable to have come before the Courts and required a stern sentence. Mr Thompson drew attention to one of the appellants whose appeals were determined by this Court in Zhang, Lok Sing Yip. Mr Yip was sent to New Zealand by a criminal organisation based in Hong Kong to participate in the importation and distribution of methamphetamine. By his own acknowledgment, Mr Yip was “effectively the person on the ground in New Zealand taking instructions from Hong Kong and passing these on to others”.^[101]
• [101] The amount of methamphetamine imported was 60.9 kg. This Court assessed Mr Yip’s role as a leading one.^[102] He had substantial links to the criminal organisation in Hong Kong from which it appeared the drugs were sourced and had some importance in the hierarchy of that organisation. He had oversight of the process by which the methamphetamine was extracted from the garden hoses in which it had been concealed. This Court considered that the “very high quantity” of the methamphetamine imported and his “mid-to-lower level leading role in the offending” made a starting point of 23 years appropriate.^[103] It appears that starting point was also regarded as appropriate by the Supreme Court which discussed Mr Yip’s appeal in Berkland.^[104] Mr Thompson pointed out that the quantity involved in Mr Wong’s offending is more than four times that of Mr Yip and accordingly required a starting point significantly higher than the 23 years adopted in that of Mr Yip.

Evaluation

• [102] The Judge gave detailed reasons for characterising Mr Wong’s role as a leading one and rejecting Mr Wong’s evidence to the contrary. We have not been persuaded he was wrong. Of all the offenders, it was Mr Wong who had direct contact with the person directing the operation from overseas and the Judge was justified in drawing the inference that Mr Wong had been entrusted with leading the team in New Zealand.^[105] He had led the group which had arrived in New Zealand on 17 September and set up the systems to extract the drug before the police intervened.^[106]
• [103] Mr Stevens drew attention to what Mr Wong “actually did”,^[107] claiming his behaviour was more akin to the management function described in Berkland, than that of a leader. We do not accept that submission. The fact that aspects of Mr Wong’s conduct were managerial and operational in nature, does not mean that he could not also be the leader of the operation in New Zealand. He was the director and organiser here, effectively leading the group in New Zealand and he was the link to the “mastermind” in Hong Kong.^[108] If Mr Wong was not at the top of the hierarchy, he was close to it.
• [104] We consider Mr Wong fell comfortably within the first, second and third items of the leading role profile described in Zhang. There was no evidence about the extent of any financial reward he would have received. That is no doubt because of the timing of the intervention by police, but substantial reward can be inferred from the very significant amounts of methamphetamine involved and the fact that he was the director of the operation in New Zealand.
• [105] The cases discussed by Mr Stevens involved greater amounts of methamphetamine than the present case but the amount involved here was nevertheless very significant. And the appropriate comparison must take into account the role played by the defendants in those cases. In Tuilotolava, the defendant was sentenced after others involved in the same offending were sentenced. Downs J adopted a starting point of 32 years’ imprisonment because that was the starting point taken by Lang J in respect of a co-offender, Mr Wan, who Downs J considered was equally culpable.^[109] But for that fact, it seems Downs J would have adopted a starting point of life imprisonment for Mr Tuilotolava.^[110] We observe however, that notwithstanding this observation of the Judge, he appears not to have regarded Mr Tuilotolava as being the most significant actor in the operation, describing him as the lieutenant of Mr Iustini, another who was sentenced separately.^[111]
• [106] Moore J sentenced Mr Iustini and Mr Fakaosilea after the sentencing of Mr Tuilotolava had taken place. As noted earlier, he adopted starting points of 32 and 29 years respectively.^[112] The Judge described Mr Iustini as “an important and influential member of this operation”, but he was not satisfied he was the overall leader or director, or “even more senior than all [his] other co-offenders as the Crown submits”.^[113] The Judge considered that Mr Iustini had played a similar role to that of Mr Wan and Mr Tuilotolava, finding that all three “played important leadership roles at various points in the operation” and in the circumstances adopted the same 32 year starting point.^[114]
• [107] The sentencing of Mr Thai and Mr Te-Hira in Thai took place after judgment was delivered in Zhang. In the former, Toogood J considered Mr Thai was in the “trusted lieutenant” category, and not that of a leader, and adopted a starting point of 30 years, consciously departing from the starting points adopted in Wan, Tuilotolava and Fakaosilea, despite the fact that the amount of methamphetamine involved was almost as much as in that operation.^[115] The difference was clearly based on the role of Mr Thai in comparison with those offenders.^[116] And in the case of Mr Te-Hira, his culpability was considered significantly less than that of Mr Thai, justifying a five‑year difference in the starting points.^[117]
• [108] Netzler was another post-Zhang case. The amount of methamphetamine involved was effectively the same as the offending of Mr Tuilotolava and his co‑defendants. Harland J accepted the submission made by both the Crown and the defence that Mr Netzler fell within the “significant” category of the Zhang roles, finding that he was the “lead contact in New Zealand” and took a starting point of 35 years because of the quantity involved.^[118]
• [109] These cases show that arriving at a starting point is not simply a matter of comparing quantities of methamphetamine imported, but also requires an assessment of the role played. The logic of the Zhang approach requires close attention to the latter. As this Court said:^[119]

[118] We may summarise our proposed approach at the outset. After extensive consideration and debate upon the matter, we propose to retain the Fatu quantity bands, but with some significant modifications. In particular, we confirm that the role played by the offender is an important consideration in fixing culpability and thus the stage one sentence starting point. Due regard to role enables sentencing judges to properly assess the seriousness of the conduct and the criminality involved, and thereby the culpability inherent in the offending, in the holistic manner required by Taueki and Hessell. It means that a more limited measure of engagement in criminal dealing deserves a less severe sentence than a significant or leading role. Role may result in an offender moving not only within a band – as currently happens or is supposed to happen under Fatu – but also between bands. ...

• [110] It follows from this that a starting point must not be derived solely from a comparative analysis of the quantum of the drug involved in the offending, but must also be closely tied to the role played by the offender. In broad terms, the feature of the present case distinguishing it from the other cases discussed is the clarity of the Judge’s finding that Mr Wong was the leader of the group in New Zealand. A very significant amount of methamphetamine was involved, even if it was less than in the other cases relied on by Mr Stevens. But we have not been able to accept his submission that that Mr Wong did not play a leading role. It is that finding which distinguishes this case from the others and explains the starting point adopted. It leads us to conclude that the sentence imposed on Mr Wong was within the range available to the Judge. And we note that Berkland did not alter the description of the leading role.
• [111] We agree that the imposition of an eight and half year minimum period of imprisonment serves no purpose, as this is the minimum period permitted by statute; s 84(1) of the Parole Act 2002 states that the non‑parole period of a long-term determinate sentence is one-third of the sentence. It was therefore unnecessary for the Judge to order that Mr Wong serve a minimum period of imprisonment of eight and a half years. However, we do not consider that s 89 of the Sentencing Act 2002 contemplates an order imposing a minimum period of imprisonment equal to the statutory minimum. Consequently, the order should not have been made and it is set aside.
• [112] Mr Wong’s sentence appeal will be allowed in part for these reasons.

Tai Fi Chiu

Sentence under appeal

• [113] As Mr Chiu pleaded guilty to one charge of importing methamphetamine relating to the second importation, and to possession for supply in respect of the first two shipments, the Judge sentenced him on the basis that his offending was related to a total quantity of 157 kg of methamphetamine.^[120] The Crown submitted that Mr Chiu was the senior leader of the group, but the Judge did not accept that. He considered Mr Chiu’s role to be lower than that of Ricky Leung and adopted a starting point of 26 years and six months’ imprisonment.^[121]
• [114] He allowed Mr Chiu a discount to reflect his cultural isolation in a New Zealand prison and lack of previous convictions, but declined any further discount in respect of the fact that he was 59 years of age.^[122] He concluded that Mr Chiu had no significant health concerns, an issue which is pursued on appeal. In the result, he allowed two and a half years for personal mitigating considerations before turning to consider Mr Chiu’s guilty pleas.^[123]
• [115] Mr Chiu had entered his pleas on 30 January 2019, just under two weeks before the trial started. However, counsel then acting, Mr Newell explained that Mr Chiu first advised him that he wished to plead guilty on 11 September 2018, although instructing that the pleas should not be entered until disclosure of all electronic documents was completed. In the end, the Judge decided that a 20 per cent discount for the guilty plea would be appropriate, in fact generous.^[124] In the result, the Judge reached an end sentence of 19 years and two months’ imprisonment.^[125] He ordered that Mr Chiu serve a minimum term of eight and a half years.^[126]

Submissions on appeal

• [116] When the appeal was argued, Mr Simperingham pursued an argument seeking a two-year discount for ill health. It was the sole ground of the sentence appeal. This was supported by a sworn affidavit of Mr Chiu which explained that a tumour on his liver had been removed while he was in custody for the present offending. According to the doctor responsible for his care, this was not malignant. Mr Chiu is concerned that problems with his liver, including liver fibrosis caused by chronic hepatitis B, may lead to eventual liver failure which will prevent him surviving his entire term of imprisonment. Mr Chiu also said he suffers from osteoarthritis and tendon injuries, which he claims make walking difficult, although there was no medical evidence substantiating that. He also referred to having previously suffered from a duodenal ulcer.
• [117] A further issue raised was that, because of his age, Mr Chiu risks spending the rest of his life in prison if he has to serve his full sentence. He was born in August 1960 and sentenced in December 2019. At full term he would be over 78 years old. Mr Simperingham emphasises this context in his submission that ill health should have been recognised by a specific discount.
• [118] Although there had been no challenge to the starting point when the appeal was argued, Mr Simperingham took the opportunity to raise that issue in the further submissions we invited in response to Berkland. He contended that the altered description of the significant role category was relevant to assessing Mr Chiu’s role. He submitted that Mr Chiu’s actions “properly fall within the significant role category in the updated role profile table in Berkland - albeit at the upper end of that category.” He submitted that, as a consequence, the starting point adopted in the High Court should be reduced to reflect that categorisation.

Evaluation

• [119] We are not persuaded that any of these issues justifies the provision of a discount for ill health. The only serious issue was dealt with successfully in April 2021 by the provision of appropriate medical intervention, for which Mr Chiu graciously expressed his gratitude. The papers attached to Mr Chiu’s affidavit indicate that the ulcer he previously had is not an ongoing issue, and he is in reasonably sound health for a person of his age.
• [120] We accept that issues of age and ill health should be taken into account where not recognising them would render an otherwise appropriate sentence disproportionately severe.^[127] Moore J acknowledged that but decided Mr Chiu’s age did not warrant a discrete discount on top of the two and a half years he allowed for cultural isolation and lack of previous convictions.^[128] We do not consider the Judge erred in this approach. We do not see any reason to differ from it. It must also be remembered that Mr Chiu was given a 20 per cent discount for his guilty plea, although it was entered only two weeks before the trial. We do not consider the end sentence is excessive when this is taken into account.
• [121] There are a number of difficulties with the challenge to starting point. First, Mr Simperingham made no attempt to explain how or why the change to the significant role description in Berkland affected the Judge’s assessment of the starting point. The Judge adopted a lower starting point than he had in the case of both Mr Wong and Ricky Leung. In doing so he said he was inclined to agree with Mr Newell who submitted on sentence that while Mr Chiu’s role was significant, there was “no evidence to demonstrate he was a leader or senior figure.”^[129] In other words he was not sentenced on the basis that he was a leader, and so in terms of the role categories in both Zhang and Berkland, he would be in the “significant” category, not the “leading” category. This is consistent with the fact that Mr Newell argued for a starting point of 26 years, which the Judge came close to at 26 and a half.
• [122] Mr Simperingham accepts that Mr Chiu would be at the upper end of the “significant” category, post-Berkland, but articulates no argument for why that should lead to a reduced starting point from that adopted by the Judge. We do not see why it should. We set out here the key part of the Judge’s reasoning:

[70] ... He was closely connected to the purchases at the cookware shop and Bunnings. He, with Ricky Leung removed the six boxes from the Onehunga storage unit. He was in the Estima and helped to load the boxes into it at the Botany shopping mall. And he helped unload the other boxes later in the day at the Onehunga storage facility when Mr Tan received the call from Mr Chiang.

[71] In my view these actions speak to a role which was less senior. In contrast, Ricky Leung played a more organisational and supervisory function, distancing himself from the actual transport and extraction of the methamphetamine. ...

• [123] This seems to us to fit reasonably within items one, two and five of the Berkland significant role profile, and there can be no doubt that from the surrounding circumstances that item three also applied. As with Mr Wong and the other co‑defendants there is no evidence about what the actual financial reward was.
• [124] For these reasons we are satisfied Mr Chiu’s sentence appeal must be dismissed.

Hao Li

Sentence under appeal

• [125] The Crown alleged that Ms Li played a “significant role”, having accompanied Mr Wong when obtaining extraction equipment and being involved in the acquisition of the property in Manurewa. She also carried cash to pay for some of the equipment and was involved in the cookware shop purchases. She was present throughout the transportation of the boxes.
• [126] Defence counsel submitted Ms Li had played a “lesser role” in the offending; she claimed to have simply followed instructions from her husband Mr Wong. She did not travel to the storage facility in Onehunga, nor had she been involved in the purchase of tools from Bunnings. She did not play an active role in handling the boxes and remained in the Estima while others loaded and unloaded the boxes containing the drugs.
• [127] The Judge concluded that while Ms Li’s role was clearly less senior than that of the main players, she had nevertheless had a significant role. Although not a leader, she took an active role in important operational and administrative tasks and although she hadn’t handled the product, she had been present during its transportation. In the circumstances, he considered a starting point of 23 years’ imprisonment was appropriate.^[130] He allowed a discount of two years to reflect her cultural isolation and prospects of rehabilitation.^[131] The result was an end sentence of 21 years’ imprisonment. He ordered that she serve a minimum term of eight years.^[132]

Submissions on appeal

• [128] The primary issue pursued on Ms Li’s sentence appeal was the imposition of the minimum period of imprisonment of eight years. Although Mr Ryan also described the 23-year starting point as at the upper end of the range, and suggested 21 years would have been more appropriate, he did not advance submissions, whether in writing or orally, as to why that was so.
• [129] Mr Ryan also sought to rely on a report prepared under s 27 of the Sentencing Act which was made available only on the day of the hearing. Mr Thompson objected to the Court receiving it, because there had been no opportunity to consider it. There was no explanation of why it was provided so late. We comment that, having looked at it, the report consists entirely of matters self‑reported by Ms Li that were not able to be verified in any way by the author of the report. We do not consider it is appropriate to admit it. We treat this as an application to adduce fresh evidence and decline it.
• [130] We note, in any event, that Mr Ryan did not advance any submission suggesting that there should have been a greater allowance for personal mitigating circumstances than the two years allowed by the Judge.
• [131] On the issue of the minimum period of imprisonment, Mr Ryan noted that, in Zhang v R, the Court emphasised that minimum periods must not be imposed as a matter of routine or mechanistically.^[133] Reasons must be given for imposing a minimum period of imprisonment and justifying its length.
• [132] Mr Ryan complained that the Judge did not properly consider the factors weighing against the imposition of a minimum period of imprisonment in the case of Ms Li. These included:

(a) a low likelihood of re-offending;

(b) the assessment of the writer of the pre-sentence report of Ms Li as open to engaging in programmes to gain knowledge, to better herself to avoid further offending; and

(c) Ms Li’s compliance in custody and assessment as having a high ability to comply with a community-based sentence. While the nature of the offending meant that was not an option, her conduct while in custody demonstrated strong rehabilitative prospects.

• [133] Mr Ryan relied on this Court’s decisions in Tran v R and Cheung v R.^[134] In the former the Court observed that minimum periods of imprisonment had been quashed or reduced in cases involving those who are young and had good prospects of rehabilitation, those who have a low likelihood of reoffending and those whose personal circumstances weigh against the imposition of a minimum term.^[135] In Cheung, Mr Ryan relied on the court’s statement that:^[136]

... having regard to the length of the sentence and Mr Cheung’s youth, prospects of rehabilitation and personal circumstances (distance from family and poor English), a minimum period was not required ...

Evaluation

• [134] We have no doubt the Judge’s approach on the issue of the imposition of a minimum period of imprisonment was appropriate. In addressing this issue, the Judge noted the submission by defence counsel that a minimum period of imprisonment was not necessary to hold Ms Li accountable for her offending. He then said:^[137]

For the reasons outlined above when considering Ricky Leung’s MPI, I disagree. The Crown suggests an MPI of nine years. I consider this is too high. I impose an MPI of eight years.

• [135] When dealing with Ricky Leung, the Judge said:^[138]

[63] The Court may impose a minimum period of imprisonment ("MPI") if it is satisfied that it is necessary for the purposes of accountability, deterrence or denunciation. MPIs are not to be imposed as a matter of routine. The test in s 86 of the Sentencing Act 2002 needs to be applied in individual cases and must not be fettered. But this is a case which involved significant commercial drug dealing. The principles of deterrence, denunciation and accountability lie at the forefront of this sentence and I therefore consider the imposition of an MPI to be necessary.

• [136] He was obviously intending those remarks to apply as reasons applicable to the minimum periods of imprisonment imposed on all defendants, including Ms Li. They reflect what was said by this Court in Zhang:

[171] ... for the reasons already discussed, it is deterrence, denunciation and accountability that are likely to be at the forefront of decisions in drug cases involving the imposition of a minimum period of imprisonment. That in turn means that as a general rule, lengthy minimum periods of imprisonment are properly reserved for cases involving significant commercial dealing.

• [137] This was clearly a case involving commercial dealing in extremely large quantities of methamphetamine and purely for commercial gain. In Ms Li’s case, having been sentenced to 21 years’ imprisonment, the minimum period of imprisonment of eight years meant she would be required to serve a minimum of about 38 per cent of the sentence, compared with the 33 per cent that would otherwise apply. This added about one year to the period of mandatory imprisonment, distinguishing this case from Cheung v R, where the difference between the statutory minimum period and the minimum term ordered was significant, being more than four years’ time served.^[139] A decision to impose a minimum term of that period was well justified by the need for deterrence, denunciation and accountability having regard to the scale of this offending.
• [138] The pre-sentence report recorded Ms Li’s ongoing denial of the offending, for which she blamed her partner Mr Wong. She was 42 years old at the time of her offending, and past the point where she could rely on youth as a reason for not being subject to a minimum term, the reason that influenced this Court in respect of the 19‑year-old Mr Cheung and the 24-year-old Mr Prasad.^[140] While she is in custody in New Zealand and without the support of family and friends, this hardship was allowed for in the sentence imposed. There is nothing about her personal circumstances which indicates the minimum term was inappropriate, and her ongoing unwillingness to accept responsibility for her role in the offending underlines the need to emphasise accountability.
• [139] For these reasons Ms Li’s sentence appeal is dismissed.

Yiu Wai Chiang

Sentence under appeal

• [140] Mr Chiang pleaded guilty on 8 February 2019 to one charge of possession of methamphetamine for supply, in relation to the second importation of 109 kg. The Crown acknowledged that Mr Chiang had played a lesser role, his involvement being limited to purchasing equipment and moving boxes. The Judge concluded that he was “little more than a worker whose role was to handle the product and, when the time came, to help with its extraction.”^[141] Although he was a willing pair of hands, he had assumed no organisational role in the offending. The Judge considered that a starting point of 21 years’ imprisonment was appropriate.
• [141] The Judge allowed a discount of two years for Mr Chiang’s cultural isolation and rehabilitative prospects.^[142] He noted that Mr Chiang’s guilty plea came on 8 February 2019, the week before the trial. That occurred after the Crown dropped a charge of importation against him. The Crown accepted that a discount of 15 per cent was available. Although he considered that to be “rather generous”, the Judge allowed it.^[143] In the result, an end sentence of 16 years and two months’ imprisonment was imposed, with a minimum period of imprisonment of seven years.^[144]

Submissions on appeal

• [142] Mr Chiang appeals his sentence on the basis that the starting point of 21 years adopted by the Judge was too high, and the discounts allowed for personal mitigating circumstances, two years or about 9.5 per cent, were too low.
• [143] In her submissions at the hearing of the appeal, Ms Taylor-Cyphers argued for a starting point of 20 years and for discounts totalling 15 per cent, discrete discounts of five percent each for “cultural dislocation”, rehabilitation and previous good character. She also argued that there was no need for the imposition of a minimum period of imprisonment.
• [144] In further submissions filed after Berkland, Ms Taylor-Cyphers argued that there is now a principled basis on which to claim that the limited duration of Mr Chiang’s involvement should be a more important consideration than the quantum of the drug in which he dealt, and that basis justifies a lower starting point than 21 years. For this point, she referred to the statement in Berkland on the varying potency of role, and that there is no reason in principle why role cannot be more important than quantum if justified in the circumstances.^[145] She drew attention to the example given by the Supreme Court: “if the circumstances demonstrate that, irrespective of quantum, the offender’s role in relation to it falls within the lower end of ‘lesser’.”^[146] She also relied on the Court’s observation that quantum and general deterrence must not obscure the importance of role as an indicator of comparative culpability.^[147]
• [145] Ms Taylor-Cyphers emphasised the brief period for which Mr Chiang can have been in possession of the methamphetamine, and that no actual supply occurred. Further, she underlined that the Judge accepted that Mr Chiang’s involvement was limited to purchasing equipment and moving boxes, being left alone with and standing guard over the methamphetamine in two locations, and telephoning Mr Tan when the remainder of the group were engaged in moving the boxes. He was, as the Judge found:^[148]

... little more than a worker whose role was to handle the product and, when the time came, to help with its extraction. ... he was a willing pair of hands but he assumed no organisational role. ...

• [146] Ms Taylor-Cyphers also asked us to note the minority judgment of Ellen France J in Berkland recording her view that the sentences for commercial drug offending are “simply too high”, and that it is “difficult to see that personal or general deterrence are better served by a 28 year sentence rather than, say, a 22 year sentence.”^[149]
• [147] The argument for a greater allowance for personal circumstances was simply that cultural dislocation, rehabilitative efforts, and previous good character warranted discrete recognition with a five per cent discount for each, with an overall discount of 15 per cent. The Judge allowed discounts only for cultural isolation and rehabilitative prospects. Ms Taylor-Cyphers also argued that there was no need for a minimum period of imprisonment to be ordered.

Evaluation

• [148] As Mr Thompson for the respondent pointed out, the Judge acknowledged that Mr Chiang had played a lesser role in the offending. The Supreme Court in Berkland made no changes to the lesser role category in Zhang and for that reason we do not think it bears directly on the sentence imposed on Mr Chiang.
• [149] Mr Chiang was involved only in respect of the second importation, involving 109 kg. So, in terms of the quantum of the drug involved, his offending was clearly less culpable than that of either Mr Wong or Mr Chiu. Further, the smaller quantum of methamphetamine and Mr Chiang’s lesser in role in relation to it were recognised by a 10-year differential in the starting points imposed on him and Mr Wong. We are not persuaded that the starting point adopted for Mr Chiang resulted in a sentence that was clearly excessive. Indeed, that was implicitly accepted in Ms Taylor-Cyphers’ original written submission conceding that an overview of relevant authorities suggested that a starting point of 21 years’ imprisonment for offending involving 109 kg of methamphetamine was “within range”.
• [150] In her further submissions, Ms Taylor-Cyphers endeavoured to reopen that issue based on observations in Berkland about the importance of role as opposed to quantum in certain circumstances, especially where the offender’s role is at the lower end of “lesser”. However, we do not think it accurate to describe Mr Chiang’s conduct in that way. Although there were others in the group whose role was more significant, as described by the Judge, Mr Chiang nevertheless played an important hands-on role. The fact that he was not in possession of the methamphetamine for a lengthy period of time does not diminish that fact. He was heavily involved in the steps that were being taken to prepare to extract the methamphetamine so as to facilitate its supply, as well as in the other ways identified by the Judge. He was involved with a very significant amount of methamphetamine and had come to New Zealand solely for the purpose of assisting in a sophisticated drug dealing operation. The fact that he was quickly apprehended is not a proper basis for reducing the starting point for sentencing purposes, nor do we see significance in Ms Taylor-Cypers’ submission that the actual supply of methamphetamine did not eventuate.
• [151] In terms of mitigating factors, we accept that although the case involves serious drug offending, a discount for the absence of previous offending might have been given in accordance with what was said in Zhang.^[150] Such a discount was allowed by this Court in Chan v R, to which we were referred by Ms Taylor-Cyphers.^[151] However, in this case, Mr Chiang’s lack of previous convictions is based on his own report to the author of the pre-sentence report, who recorded that Mr Chiang had been “evasive throughout the interview”. The report also noted that he had exhibited little remorse for his offending behaviour and showed very little insight into his offending. Mr Chiang told the report’s author that he only became aware that he had been participating in illegal activities related to methamphetamine when he was arrested. In the circumstances, we are not persuaded that the Judge was obliged to accept that Mr Chiang had no previous convictions nor to provide any related discount. In any event, the question now is whether the end sentence of 16 years and two months was clearly excessive, and we are not satisfied that is the case.
• [152] We are also of the view that the seriousness of the offending made it appropriate for the Judge to order a minimum term of imprisonment, for similar reasons as applied in the case of the other defendants.
• [153] Mr Chiang’s sentence appeal is dismissed.

Zhi Zhao Tan

Sentence under appeal

• [154] Mr Tan was found guilty at the trial of one charge of possession for supply, related to the second importation of 109 kg. The Judge considered Mr Tan’s culpability to be equivalent to that of Mr Chiang.^[152] While Mr Chiang was left to watch over the methamphetamine at the house in Manurewa, it was Mr Tan whom he called when he detected something was amiss. The Judge considered that the division of these different roles between the defendants was random, rather than indicative of any sort of higher authority or structure applicable to them. In the circumstances, the same starting point of 21 years was appropriate.
• [155] The Judge rejected a submission based on a psychological report that there should be a discount for personal factors related to his upbringing.^[153] However, he gave Mr Tan a discount for rehabilitative prospects, and cultural isolation as he had in respect of the other defendants. He allowed a discount of two years, resulting in a term of imprisonment of 19 years. He ordered a minimum period of imprisonment of seven and a half years.

Submissions on appeal

• [156] Mr Tan appeals his sentence of 19 years’ imprisonment on the grounds that it was manifestly excessive, also alleging that the starting point of 21 years’ imprisonment taken by the Judge was too high and that the Judge should have allowed more than a two-year discount for personal mitigating circumstances.
• [157] In support of the appeal, Mrs Smith emphasised that Mr Tan had played a lesser role, and that the charge of possession for supply related only to the second importation of 109 kg. She argued that the starting point of 21 years appeared to be “out of kilter” with those adopted for Mr Te-Hira in R v Thai,^[154] the defendants in Wilkinson v R,^[155] and Tran v R.^[156] She also relied on this Court’s finding in Fakaosilea v R (Selaima Fakaosilea) that a starting point of 28 years’ imprisonment adopted by the sentencing judge was too high, having regard to the offender’s less significant role compared with that of a number of co‑defendants.^[157] Mrs Smith submitted there was no evidence that Mr Tan was aware of how much methamphetamine was involved in his offending and argued that should be relevant to the starting point adopted.
• [158] Mrs Smith contended that the Judge should not have imposed a minimum period of imprisonment. She again relied on this Court’s decision in Wilkinson v R, but referred also to Cheung v R and Tang v R.^[158] She argued that the Judge erred by failing to specifically address why the provisions of s 86(2) of the Sentencing Act should have resulted in the imposition of a minimum period of imprisonment for Mr Tan.
• [159] In Zhang v R, the Court noted it had been emphasised a number of times that minimum periods of imprisonment “must not be imposed as a matter of routine or in a mechanistic way.”^[159] The Court continued that by referring to the need for a reasoned analysis, both in respect of the imposition of a minimum period of imprisonment, and its length. However, the Courts specifically noted that in drug cases, deterrence, denunciation and accountability would likely be at the forefront of decisions about the imposition of a minimum period of imprisonment, and said that “as a general rule, lengthy minimum periods of imprisonment are properly reserved for cases involving significant commercial dealings.”^[160]

Evaluation

• [160] We turn now to the cases cited by Mrs Smith. We have already discussed Thai, in which the most serious of the charges involved 469 kilograms of methamphetamine. The starting point adopted for Mr Thai was 30 years, and for Mr Te‑Hira 28 years.^[161] As noted earlier, Mr Thai’s role was described as pivotal, but he was a “trusted lieutenant” and not a leader.^[162] Mr Te‑Hira’s role was seen as less significant. There was a greater amount of methamphetamine, but we do not see that case as establishing that the 21-year starting point adopted for Mr Tan here was too high. Mr Te-Hira’s starting point, on which Mrs Smith particularly relied, was seven years higher. In R v Wilkinson, the defendant was also found to have had a lesser role; the offending involved 193 kg of methamphetamine but a starting point of 22 years, one year higher than that in the present case, had been adopted.^[163] Once again, we are not satisfied that a comparison between the two cases establishes that the starting point for Mr Tan was excessive.
• [161] The facts of Tran are closer to this case.^[164] Mr Tran’s offending involved 109 kg of methamphetamine, and Mr Tran had a lesser role in the offending. The sentencing judge took a starting point of 21 years,^[165] which was reduced to nineteen years on appeal.^[166] It is plain however that the Court’s principal reason for reducing the starting point was that it was the same as that adopted in respect of a co-defendant, Mr Navarro, whose culpability was acknowledged to be more significant. After commenting that it was unfortunate that Mr Tran and Mr Navarro were not sentenced at or about the same time, this Court said had that happened the Judge would have drawn a distinction in the starting points and recognised that “a more appropriate starting point for Mr Tran would have been less than for Mr Navarro in order to reflect his lower role in the organisation.”^[167] As this Court observed in Yu v R, the decision in Tran focused on the comparison of the starting points selected for the defendants, and does not assist in terms of sentencing levels generally.^[168] We do not think it establishes the starting point in the present case was too high.
• [162] The case of Selaima Fakaosilea was another where the starting point was reduced for reasons of parity with the co-offenders having regard to their respective roles; a four-year differential between the appellant and the leaders of the operation was considered insufficient.^[169] The starting point was adjusted accordingly. Mrs Smith’s argument invited comparison with the approach taken in that case and Tran, but she did not articulate a disparity argument based on Mr Tan’s role compared with that of his co-offenders.
• [163] As to the claim that there was no evidence that Mr Tan knew how much methamphetamine was involved, it is plain that Mr Tan flew from Hong Kong to Auckland with Chi Leung and Mr Chiang for the sole purpose of processing the imported methamphetamine. It can be inferred he must have known there was a substantial quantity involved. The extent of his involvement in the purchase of equipment to be used for extracting the methamphetamine from the gypsum in which it was embedded, and in moving the boxes underlines that fact.
• [164] We are not persuaded the starting point was too high.
• [165] As to mitigating considerations, the Judge did note Mr Tan’s lack of previous convictions. The two-year discount that he allowed for “rehabilitative prospects and cultural isolation” was the same as that allowed in respect of other defendants, although in their case he referred to previous good character when quantifying the discount.^[170] It may be that the Judge overlooked mentioning that consideration in the case of Mr Tan, but we doubt he failed to take it into account. There was no evidence that any of the offenders had relevant previous convictions and no basis to conclude the Judge treated Mr Tan differently in that respect in the allowance given for personal mitigating circumstances.
• [166] Turning to the imposition of a minimum period of imprisonment, in the present case, the Judge imposed minimum periods of imprisonment giving brief reasons in each case. All of the defendants except for Mr Wong were sentenced at the same time. As we noted above, the Judge explained the approach which he plainly took for each of the defendants when imposing a minimum period of imprisonment on Ricky Leung.^[171] There are two observations that we make regarding his approach.
• [167] First, the Judge recognised that minimum periods of imprisonment should not be imposed as a matter of routine.^[172] He then said that, because the case involved significant commercial drug dealing, he was of the view that principles of deterrence, denunciation and accountability justified the imposition of a minimum period of imprisonment. Although the Crown argued for the statutory maximum of 10 years, he reduced that to nine, having regard to Ricky Leung’s age and health. We would not criticise this approach by reason of the brevity of the Judge’s reference to the statutory test.
• [168] When he came to sentence Mr Tan, the Judge recorded Mrs Smith’s submission that a minimum period of imprisonment was not necessary, but it was clear that he did not accept that was the case. Mr Tan was not able to point to youth, health difficulties nor old age (he was 61 years old when sentenced) as factors that would render the imposition of a minimum term of imprisonment inappropriate.
• [169] In the circumstances of this case, we do not consider the Judge was obliged to deal with this issue in any more detail than he did.
• [170] For these reasons, the sentence appeal is dismissed.

Chi Leung

Sentence under appeal

• [171] The Crown acknowledged Mr Chi Leung had played a lesser role. He was involved in moving boxes, but not to any great extent. The Judge considered his role to be “broadly comparable but slightly less significant” to the role played by Mr Tan and Mr Chiang.^[173] He adopted a starting point of 20 years’ imprisonment and allowed a discount of two years for rehabilitation and cultural isolation.^[174] The result was an end sentence of 18 years. The Judge ordered that he serve a minimum term of imprisonment of seven and a half years.^[175]

Submissions on appeal

• [172] Chi Leung appeals his sentence of 18 years’ imprisonment. His appeal alleges that the starting point was too high, that he should have received additional discounts for personal circumstances, and for his family circumstances. He contends that it was not necessary to impose a minimum period of imprisonment, or in the alternative the minimum period was too long.
• [173] As to the starting point, Mr Kan’s main point was that 20 years was an excessive starting point in light of Tran v R.^[176] Mr Kan suggested that the facts of that case were comparable to this, but that Chi Leung’s conduct was less culpable than that of Mr Tran. While both fell within the “lesser” category set out in Zhang, Mr Kan submitted that Mr Tran had a minor management role having been entrusted with the responsibility of independently organising part of the operation (arranging vehicles to distribute the methamphetamine). In contrast, Chi Leung’s role did not extend beyond providing manual labour under direction from those higher up in the organisation.
• [174] Mr Kan filed additional submissions responding to the Supreme Court’s decision in Berkland.^[177] The point in doing so was to emphasise that Chi Leung had a lesser role.
• [175] Insofar as the personal mitigating considerations are concerned, Mr Kan submitted the Judge had wrongly declined to provide discounts for matters concerning the cultural background and upbringing of Chi Leung, as well as information about his mental health which had been contained in a report prepared for the purposes of the sentencing by Mr van Rensburg, a clinical psychologist. His report contained information about the appellant’s upbringing referring to difficult aspects of his upbringing (abandonment by his biological parents at a young age, leaving school at the age of 16 or 17 without any formal qualifications, being attacked by gang members at an early age, heavy drinking as a teenager accompanied by depression as well as attempted suicide.) All of this was based upon self-reporting by Chi Leung. Although Mr van Rensburg’s report also recorded Chi Leung’s assertion that he had no idea he had been involved in moving methamphetamine and had simply been doing a favour for Mr Chiang, whom he referred to as his Godfather.
• [176] Mr Kan noted that Mr van Rensburg said that it was evident during his interview with Chi Leung that he was in considerable distress as a result of his conviction and immediate future prospects. He mentioned that “some years ago” Mr Leung had attempted suicide, but he denied currently being suicidal. He was on no medication, not suffering from any addictions and, by his own account, had never used drugs. That, because he was fully aware of their harmful effects.
• [177] Mr Kan also submitted that the seven year six month minimum period of imprisonment imposed was unnecessary.

Evaluation

• [178] In respect of starting point, we do not consider that the distinction between the roles played by Mr Tran and Chi Leung is of any significance. Another possible distinction is that Chi Leung had direct contact with the boxes of methamphetamine while Mr Tran did not. The Judge considered that Chi Leung’s role was broadly comparable to that of Mr Tan and Mr Chiang, but slightly less significant, in that he had not assisted in the purchase of extraction equipment.^[178] Further, Mr Chiang had contacted Mr Tan and not Chi Leung to alert him that the boxes were tampered with, suggesting that Mr Tan had slightly more responsibility. We add that the starting point adopted of 20 years for Chi Leung was the lowest of all the defendants, and we are not persuaded that it was excessive in the circumstances of this case.
• [179] We have already discussed the fact that the starting point adopted in Tran is of limited usefulness as a comparator for the reasons discussed in Yu v R.^[179]
• [180] We also do not consider the Judge’s approach to Chi Leung’s personal mitigating circumstances was in error. The Judge concluded that Mr van Rensburg’s report provided little information of relevance and assistance to the Court on sentencing.^[180] He saw no reason to allow him a greater discount than the two years allowed in the case of Mr Tan.
• [181] The Judge did not give specific reasons for imposing a minimum sentence in respect of Chi Leung but, as noted earlier, that has to be seen in the context of his overall sentencing notes and his earlier observations that a minimum period of imprisonment was necessary for purposes of deterrence, denunciation and accountability having regard to the significant commercial drug dealing involved. There was nothing in Chi Leung’s personal circumstances which dictated it would be inappropriate to impose a minimum term once the Judge was satisfied that the requirements of s 86(2) were met.
• [182] For these reasons, Chi Leung’s sentence appeal is dismissed.

Result

• [183] The applications by Hao Li, Yiu Wai Chiang and Tai Fi Chiu to extend the time for appealing are granted.
• [184] The application by Hao Li to adduce further evidence is declined.
• [185] The conviction appeals by Hao Li and Tai Fi Chiu are dismissed.
• [186] The sentence appeal of Wai Fat Wong is allowed in part and the order that he serve a minimum period of imprisonment is set aside.
• [187] All other sentence appeals are dismissed.

Solicitors:
Michael Tan Law, Auckland for Appellant in CA15/2020
Woodward Chrisp Lawyers, Gisborne for Appellant in CA605/2020
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent

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

^[2] Section 6(1)(f) and (2)(a).

^[3] Section 6(1)(f) and (2)(a).

^[4] Section 6(1)(a) and (2)(a).

^[5] Section 6(1)(f) and (2)(a).

^[6] Section 6(1)(f) and (2)(a).
^[7] R v Leung [2019] NZHC 3299 [principal sentencing judgment].

^[8] R v Wong [2020] NZHC 1654 [Wong sentencing judgment].

^[9] Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

^[10] Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.

^[11] At [72].

^[12] At [72(b)].

^[13] Tan v R CA14/2020, 7 February 2023 at [4].

^[14] Principal sentencing judgment, above n 7, at [10]–[43].

^[15] At [10].

^[16] At [13].

^[17] At [14]–[15].

^[18] At [21].

^[19] At [21].

^[20] At [24].

^[21] At [25].

^[22] At [27].

^[23] At [42].

^[24] As noted above, Mr Wong pleaded guilty on the morning of the trial after which Ms Pecotic acted solely for Ms Li.

^[25] Disputed facts judgment, above n 66, at [88].

^[26] Duncan v R [2013] NZCA 354.

^[27] At [19].

^[28] At [20] citing Mills v R [1995] 1 WLR 511 (PC) at 523.

^[29] We use the language employed by counsel but note that the term “Battered Woman Syndrome” is no longer used because of its focus on the victim rather than the abuse they have experienced. The social or systematic entrapment framework reflects up to date understanding and represents a fuller and more accurate picture of intimate partner violence: see Julia Tolmie discussing R v Ruddelle [2020] NZHC 1983, [2021] 3 NZLR 505 in “Leaving the ‘battered woman’ trope behind” (12 August 2020) University of Auckland | Waipapa Taumata Tau <https://www.auckland.ac.nz/en/news.html>

^[30] See R v Stretch [1982] 1 NZLR 225 (CA); and R v Ripia [1985] 1 NZLR 122 (CA).

^[31] R v Le Page [2005] NZCA 67; [2005] 2 NZLR 845 (CA), at [17].

^[32] At [18].

^[33] Zhang v R, above n 9; and Berkland v R, above n 10.

^[34] Zhang v R, above n 9.

^[35] R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA). R v Fatu was the guideline decision on methamphetamine sentencing that preceded Zhang v R, above n 9.

^[36] Zhang v R, above n 9, at [118].

^[37] At [118].

^[38] At [125].

^[39] At [114] referring to Sentencing Council (UK) Drug Offences: Definitive Guideline (2012).

^[40] At [126].

^[41] Berkland v R, above n 10, at [62]–[72].

^[42] At [63].

^[43] At [63].

^[44] At [64]. The Court noted that this was accepted in Zhang v R, above n 9, at [123], albeit in exceptional circumstances.

^[45] At [65] citing Zhang v R, above n 9, at [120].

^[46] At [65].

^[47] At [65].

^[48] At [66].

^[49] At [67].

^[50] At [67].

^[51] At [68].

^[52] At [69].

^[53] At [70].

^[54] At [70].

^[55] At [71].

^[56] Principal sentence judgment, above n 7, at [44] citing Zhang v R, above n 9.

^[57] Zhang v R, above n 9, at [104] and [118] citing R v Fatu, above n 35.

^[58] Principal sentencing judgment, above n 7, at [49].

^[59] At [59].

^[60] At [59].

^[61] At [62] citing Ross v Police [2015] NZHC 1633 at [42]–[43].

^[62] Principal sentencing judgment, above n 7, at [62].

^[63] Wong sentencing decision, above n 8.

^[64] At [4]–[5].

^[65] Principal sentencing judgment, above n 7, at [3].

^[66] R v Wong [2020] NZHC 1359 [disputed facts judgment].

^[67] At [71]–[83].
^[68] At [71].

^[69] At [76].

^[70] At [78].

^[71] At [81].
^[72] Wong sentencing judgment, above n 8, at [44].

^[73] At [50].

^[74] At [51].

^[75] At [53].

^[76] At [53].

^[77] At [53].

^[78] At [53].

^[79] At [56].

^[80] At [60].

^[81] At [64].

^[82] At [65].

^[83] At [66]–[70].

^[84] At [70] and [76].
^[85] Berkland, above n 10, at [68].

^[86] At [77].

^[87] At [80].

^[88] R v Tuilotolava [2017] NZHC 2621.

^[89] At [21]–[22] and [26].

^[90] R v Fakaosilea [2018] NZHC 3362 at [41] and [57].

^[91] R v Netzler [2021] NZHC 3321.

^[92] At [34] and [60].

^[93] R v Thai [2021] NZHC 1006.

^[94] Toogood J uplifted the starting point by three years for possession of the separate amount of 26 kg.

^[95] R v Thai, above n 93, at [34].

^[96] At [39].

^[97] Wong sentencing judgment, above n 8, at [55].

^[98] At [56].

^[99] Berkland, above n 10, at [76].

^[100] Wong sentencing judgment, above n 8, at [72].

^[101] Zhang v R, above n 9, at [286] citing R v Kam [2016] NZHC 110 at [9].

^[102] At [298].

^[103] At [300].

^[104] Berkland, above n 10, at [50].

^[105] Wong sentencing judgment, above n 8, at [53].

^[106] At [53].

^[107] Berkland, above n 10, at [63].

^[108] Wong sentencing judgment, above n 8, at [53].

^[109] R v Tuilotolava, above n 88, at [26].

^[110] At [26].

^[111] At [22].

^[112] R v Fakaosilea, above n 90, at [41] and [57].

^[113] At [25].

^[114] At [56]–[57].

^[115] R v Thai, above n 93, at [34]–[35] citing R v Wan [2017] NZHC 1255; R v Fakaosilea, above 90; and R v Tuilotolava, above n 88.

^[116] R v Thai, above n 93, at [34].

^[117] At [38].

^[118] R v Netzler, above n 91, at [59]–[60].

^[119] Zhang v R, above n 9 (footnote omitted).

^[120] Principal sentencing judgment, above n 7, at [67].

^[121] At [68]–[71].

^[122] At [73].

^[123] At [73].

^[124] At [74].

^[125] At [75].

^[126] At [76].

^[127] M (CA91/2012) v R [2013] NZCA 325 at [52].

^[128] Principal sentencing judgments, above n 7, at [73].

^[129] Principal sentencing judgment, above n 7, at [69].

^[130] At [80].

^[131] At [81].

^[132] At [82].

^[133] Zhang v R, above n 9, at [169].

^[134] Tran v R [2021] NZCA 464; and Cheung v R [2021] NZCA 175, [2021] 3 NZLR 259.

^[135] Tran v R, above n 135, at [54] citing Fangupo v R [2020] NZCA 484; Prasad v R [2020] NZCA 483; and Tang v R [2021] NZCA 266.

^[136] Cheung v R, above n 135, at [72].

^[137] Principal sentencing judgment, above n 7, at [82].

^[138] At [63] (footnotes omitted).
^[139] Cheung v R, above n 135, at [72].

^[140] Cheung v R, above n 135, at [7] and [72]; and Prasad v R, above n 136, at [31(a)].

^[141] Principal sentencing judgment, above n 7, at [85].

^[142] At [86].

^[143] At [87].

^[144] At [87].

^[145] Berkland v R, above n 10, at [64].

^[146] At [64].

^[147] At [77].

^[148] Principal sentencing judgment, above n 7, at [85].

^[149] Berkland v R, above n 10, at [215].

^[150] Zhang v R, above n 9, at [135]–[136].

^[151] Chan v R [2020] NZCA 486 at [20].

^[152] Principal sentencing judgment, above n 7, at [90].

^[153] At [92].

^[154] R v Thai, above n 93, at [39].

^[155] Wilkinson v R [2021] NZCA 438 at [9]; and R v Wilkinson [2021] NZHC 185 at [27(a)] and [28].

^[156] Tran v R, above n 135, at [42].

^[157] Fakaosilea v R [2021] NZCA 401 at [89]–[92] [Selaima Fakaosilea]. The appellant was the sister of offender sentenced in R v Fakaosilea, above n 90.

^[158] Wilkinson v R, above n 157; Cheung v R, above n 135; and Tang v R, above n 135.

^[159] Zhang v R, above n 9, at [169].

^[160] At [171].

^[161] R v Thai, above n 93, at [35] and [39].

^[162] At [34].

^[163] R v Wilkinson [2021] NZHC 185 at [28].

^[164] Tran v R, above n 135.

^[165] R v Tran [2020] NZHC 2633 at [41]–[42].

^[166] Tran v R, above n 135, at [42].

^[167] At [39].

^[168] Yu v R [2022] NZCA 382 at [22].

^[169] Selaima Fakaosilea, above n 159, at [89]–[92].

^[170] Principal sentencing judgment, above n 7, at [92].

^[171] At [63].

^[172] At [63] citing Zhang v R, above n 9, at [169].

^[173] Principal sentencing judgment, above n 7, at [96].

^[174] At [98].

^[175] At [98].

^[176] Tran v R, above n 135.

^[177] Berkland v R, above n 10.

^[178] At [96].

^[179] Yu v R, above n 170, at [22].

^[180] At [98].