Bishop v R [2016] NZHC 3054 (14 December 2016)

Last Updated: 10 January 2017

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000286 [2016] NZHC 3054

BETWEEN	RAEWYN TEPANA BISHOP Appellant
AND	THE QUEEN Respondent

Hearing:	13 December 2016
Counsel:	N G Cooke for Appellant H D Benson-Pope for Respondent
Judgment:	14 December 2016

_{JUDGMENT OF DOWNS J}

This judgment was delivered by me on Wednesday, 14 December 2016 at 1 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

N G Cooke, Auckland.

Kayes Fletcher Walker, Manukau.

BISHOP v THE QUEEN [2016] NZHC 3054 [14 December 2016]

The issue

[1] This is a sentence appeal in relation to serious drug offending.¹ The appellant contends her three and a half year term of imprisonment is manifestly excessive, primarily by reference to her role in the offending.

Background

[2] The appellant, Feng Di Chen and Xijie He imported approximately

18 kilograms of ephedrine to New Zealand over four consignments. The drugs were worth approximately $2 million. Mr Chen was the primary offender. Through contacts in China he sourced ephedrine for the New Zealand market. Mr He was the distributor, and both he and Mr Chen supplied ephedrine here. The appellant’s role was less significant, but not unimportant. She identified the addresses to which the drugs were to be sent from China, provided that information to Mr Chen and arranged for the drugs’ collection. As with the other defendants, the appellant pleaded guilty the day before trial in consequence of a sentence indication. And like them, she had hitherto exercised her right to silence.

[3] The Judge adopted starting points of 10 and a half years’ imprisonment in relation to Mr Chen, six years’ imprisonment in relation to Mr He, and five years’ imprisonment in relation to the appellant. The Judge mitigated the appellant’s sentence by six months to reflect her age (she was 55 and a grandmother), illness in her family and prior good character (notwithstanding historic drug convictions). The Judge then afforded the appellant a further 25 percent for her late plea of guilty on the basis of a Crown concession that was appropriate. The other defendants received the same discount for their late pleas. Mr Chen’s sentence was seven years and nine months’ imprisonment; Mr He’s was four years and one month’s imprisonment.

[4] The appellant submits the Judge erred in adopting a five year starting point as she played little role in the offending, and did not appreciate its true scale. The appellant also invites attention to the level of discount for personal mitigating

_{features. Before considering these points, a little more detail is necessary.}

¹ R v Bishop [2016] NZDC 15939.

[5] As observed, the defendants sought a sentence indication the day before trial. The Crown advanced submission in relation to each defendant’s role by reference to a summary of facts that ultimately formed the basis of the defendants’ pleas of guilty. The Judge said this about the appellant’s role at the sentence indication hearing:²

Ms Bishop’s role, it is alleged, was to provide addresses and recipients to receive the ephedrine, nevertheless in that role she was an important, if not essential, link in the chain for the ephedrine to be imported into the country and later be available for distribution, without attracting the attention of the Customs Services either at the airport or through any other place of entry.

[6] Mr Cooke acted for the appellant at this stage too. He offered no submission the Judge had misapprehended the appellant’s role, or any submission the Judge’s description of the role did not reflect the summary of facts. Instead, Mr Cooke invited attention to alleged mitigating features, meaning features that by definition, would tend to support a reduction in the otherwise applicable sentence.³

On behalf of Ms Bishop, Mr Cooke does not really take issue with the starting point from a technical point of view having regard to the authorities that are relied upon, but raises a number of other matters which he says would significantly discount the ultimate sentence, those being; first of all, the guilty plea, the fact that his client, Ms Bishop, received little or no benefit from the offending, that she is a grandmother of advancing years and she has in recent times at least kept out of any further trouble through the Courts other than the minor charge in 2015, since really the late 1990s.

[7] The Judge settled on a five year starting point for the appellant, albeit His Honour made clear he was speaking only “in general terms”. The Judge also indicated he would likely accede to a Crown submission the defendants should enjoy full discount for guilty pleas even though that approach could not be reconciled with Hessell v R.⁴

[8] The basis for the Crown’s concession remains unclear. Mr Benson-Pope explained the importation charges were amalgamated into a single representative charge and the amount of ephedrine allegedly involved was reduced by almost six kilograms (to 18 kilograms). However, Hessell v R makes clear a plea arrangement

_{of this nature, which can materially benefit a criminal defendant through fewer or}

² _{R v Bishop DC Manukau CRI-2014-092-008609, 17 May 2016 at [7].}

³ _{R v Bishop, above n 2, at [15].}

⁴ Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

less serious charges, is a consideration which may offset the amount of a deduction for a guilty plea.

[9] The Judge sentenced in accordance with his indication. And as observed, by reference to the same summary of facts employed at the sentence indication hearing.

Analysis

[10] Sentences in this area turn on the perniciousness and quantity of the drug involved—and the role of the offender. In R v Wallace and Christie,⁵ the Court of Appeal observed for commercial activity on a major scale, the starting point for a principal offender in relation to Class B controlled drugs will range from eight to 14 years:⁶

Commercial manufacture or importation on a substantial scale reflecting sophistication and organisation with operations extending over a period of time though not involving massive quantities of drugs or prolonged dealing calls for a starting point in the range 5 to 8 years.

For smaller operations, but representing commercial dealing, starting points of up to 5 years are appropriate. This necessarily must be a broad category to enable sentencers to reflect the many varied circumstances that can arise.

[11] In Wang v R the defendant faced one charge of possessing 11 kilograms of pseudoephedrine for the purpose of supply.⁷ He provided material assistance to the importer, but was not a prime mover or major player. On a Crown appeal against sentence, the Court of Appeal adopted a starting point of eight years’ imprisonment. It observed if the defendant had been a prime mover or major player a starting point of around 12 years’ imprisonment would have been appropriate. As will be apparent, that case involved a similar amount of drugs but only one charge.

[12] The appellant does not contest these authorities as such; rather, she seeks to escape their reach. The appellant submits she played only a minor role in the offending and was unaware of the true nature of its scale. Or as Mr Cooke put it at

_{the hearing, the appellant was “stunned” to learn of the operation’s true extent. On}

⁵ _{R v Wallace and Christie [1999] NZCA 89; [1999] 3 NZLR 159 (CA), (1999) 16 CRNZ 443.}

⁶ _{At [31]–[32].}

⁷ Wang v R [2014] NZCA 409.

this argument, while a five year starting point might otherwise have been generous to the appellant, her level of offending was such a different approach was called for.

[13] There are difficulties with this argument. When the appellant pleaded guilty a day before trial, she did so in relation to an agreed summary of facts. While the summary is silent on the appellant’s knowledge in relation to the quantity of drugs involved, it clearly implies she was aware the operation was commercial in nature. No contrary submission was advanced at the sentence indication hearing, just as no submission was advanced in relation to the appellant’s allegedly minor role.

[14] Mr Cooke submitted he did not advance argument on either front because he hoped to persuade the Judge to a different point of view at sentencing. However, that does not address the appellant’s acceptance of the summary of facts. Moreover, it would have been open to the appellant to seek a disputed facts hearing on the basis she had entered a guilty plea to the ingredients of the offence only. She did not do so. And, the appellant did not place any evidence before the sentencing Judge about her knowledge or role, or for that matter, anything else. Nor has the appellant applied to adduce fresh evidence before me.

[15] There is an obvious limit to what I may receive from the Bar in relation to a defendant who declines to speak to the Police, offers no contest to the summary of facts or a sentence indication premised on a particular role, and who then seeks to promote a different set of facts—all from the relative safety of the dock.

[16] In any event, I do not accept the appellant could have been other than aware she was involved in the importation of commercial quantities of ephedrine because the packages from China, in relation to which she was liaising with Mr Chen, were of a size consistent with that. And, the appellant facilitated the importation of four separate consignments. To be clear, all of this is apparent from the agreed summary.

[17] Similarly, I do not accept the appellant’s role was minor. Neither did the sentencing Judge, and for good reason. But for the provision of the addresses, Mr Chen would have had great difficulty in importing the packages of ephedrine. They needed to go somewhere, and to someone. Moreover, the appellant was in

direct and regular contact with Mr Chen between 14 July and 5 August 2014. True, they never met, but in a digital world that is hardly surprising.

[18] Mr Cooke submitted the Judge erred in referring to the appellant as a “lieutenant”. In isolation, that term is capable of implying a higher level of involvement than that of the appellant. However, the Judge used the term only once. And the balance of His Honour’s sentence indication remarks and sentencing remarks accurately capture the appellant’s role in the enterprise, a point underscored by the Judge’s reference to the appellant as being more “naïve” than Mr He, and the Judge’s treatment of the appellant as the least culpable of the three defendants.

[19] I am satisfied the Judge did not err in adopting an unduly severe starting point. If anything, the starting point was benign having regard to the quantity of drugs involved and the appellant’s not unimportant role in the enterprise. An appreciably higher starting point could have been easily reached, as Wang v R makes clear.

Personal circumstances

[20] The appellant’s personal circumstances are challenging. Put briefly, her son requires out-patient psychiatric care, and her partner is ill. The appellant is 55 years old and a grandmother. Mr Cooke submitted this constellation warranted greater sentencing discount than the six months afforded by the Judge.

[21] This level of discount is beyond challenge given the nature and scale of the offending and well-known limitations in this area in relation to discounts for personal mitigating features. Moreover, because sentence appeals are ultimately concerned with the correctness of the ultimate sentence, the modest starting point and full discount for the belatedly guilty pleas assume relevance here.

[22] In truth, the appellant is fortunate to have escaped a more severe sentence. The appeal is dismissed.

Addendum

[23] Before leaving this case, I make three observations. First, if counsel considers the Judge has erred or is about to, whether in a sentencing context or any other, it is incumbent on counsel to promptly raise the point with the Judge. This follows from counsel’s duty as an officer of the Court, and his or her duty to the client. Second, while sensible Crown concessions are always welcomed by the Courts, care must be taken not to promote sentencing discounts or approaches seemingly inconsistent with principle and practice. Third, Judges are not obliged to accept sentencing agreements as between the parties; particularly when they include

discounts or levels of sentence not readily reconcilable with authority.⁸

...................................

_{Downs J}

⁸ Haarhaus v R [2010] NZCA 41.