YELENGWE YONKWA-DINGOM v R [2021] NZCA 603

YELENGWE YONKWA-DINGOM v R [2021] NZCA 603 [16 November 2021]NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF THENAMES OF THE APPELLANT'S CO-OFFENDERS REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA663/2020[2021] NZCA 603BETWEEN ALEXANDER STEEVE YELENGWEYONKWA-DINGOMAppellantAND THE QUEENRespondentHearing: 8 November 2021Court: Collins, Duffy and Dunningham JJCounsel: H G de Groot and B H Woodhouse for AppellantH D L Steele and R M Gibbs for RespondentJudgment: 16 November 2021 at 9.30 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The application to adduce further evidence is granted.C The appeal is allowed.D The sentence of 15 years' imprisonment with an MPI of seven years andsix months is quashed and substituted with a sentence of 11 years'imprisonment with an MPI of five years and six months.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Mr Yelengwe Yonkwa-Dingom wishes to appeal a sentence of 15 years'imprisonment with a requirement that he serve a minimum period of imprisonment(MPI) of seven years and six months before he is eligible to be considered for parole.1The sentence was imposed by Lang J in the High Court at Whangārei on 24 September2019 after Mr Yelengwe Yonkwa-Dingom pleaded guilty to:(a) importing 23.7 kilograms of cocaine into New Zealand;2 and(b) possessing the cocaine for the purposes of supply.3[2] Mr Yelengwe Yonkwa-Dingom was also charged with failing to comply withdirections from the police to supply the passwords for his cell phone and laptop, whichis an offence under the Search and Surveillance Act 2012.4 Mr YelengweYonkwa-Dingom was convicted and discharged in relation to that offence.5Extension of time to appeal[3] The notice of appeal was filed on 9 October 2020, almost a year out of time.Mr Yelengwe Yonkwa-Dingom has therefore sought an extension of time to file hisappeal.6 He has explained that he encountered difficulties in contacting counsel inorder to obtain advice and to advance an appeal. The Crown accepts Mr YelengweYonkwa-Dingom is not responsible for the delays.[4] There are two reasons why we grant an extension of time for Mr YelengweYonkwa-Dingom to file his notice of appeal:1 R v Yonkwa-Dingom [2019] NZHC 2415 [Sentencing notes].2 Misuse of Drugs Act 1975, s 6(1)(a).3 Section 6(1)(f).4 Search and Surveillance Act 2012, ss 130 and 178.5 Sentencing notes, above n 1, at [11].6 Criminal Procedure Act 2011, s 248(4)(a).(a) The delay in filing the notice of appeal has been adequately explained.(b) There is, as the Crown acknowledges, merit in the appeal.Background[5] Mr Yelengwe Yonkwa-Dingom is a French national who was born inCameroon in 1991. He was recruited into an international syndicate that was involvedin smuggling cocaine from South America to Australia on cruise ships.[6] Two cruise ships, the "Astor" and the "Regatta" were scheduled to arrive inSydney in late 2017 after sailing from the United States to South America and fromthere to New Zealand and Australia.[7] Mr Yelengwe Yonkwa-Dingom was involved in organising the logistics ofsmuggling cocaine on the vessels. He flew to the United States in August 2017 toprepare for the operation. He later travelled to South America and from there ontoAustralia.[8] A number of persons were recruited as couriers to sail on the vessels.Organisers of the syndicate provided Mr Yelengwe Yonkwa-Dingom and others witha cell phone application called "Silent Phone", which can be programmed toautomatically delete all communication data normally retained on a cell phone.Communications between persons using "Silent Phone" are encrypted and thereforecannot be intercepted.[9] Persons more senior to Mr Yelengwe Yonkwa-Dingom in the organisationwould send cash to his location to enable him to pay for the cruises and other expensesinvolved in the venture. On 9 November 2017, Mr Yelengwe Yonkwa-Dingom arrivedin Sydney where he set up an apartment and awaited the arrival of the Astor and theRegatta.[10] The Astor arrived in Sydney on 30 November 2017 with four couriers, whowere attempting to smuggle 25 kilograms of cocaine into Australia. They werearrested by Australian authorities when the vessel arrived in Sydney. Members of thesyndicate aboard the Regatta were alerted that the couriers aboard the Astor had beenarrested.[11] The Regatta arrived in Norfolk Island on 3 December 2017, where twomembers of the syndicate were spoken to by Australian Border Force officials. Nodrugs were located aboard the Regatta at that time, but it became clear to the syndicateorganisers that they needed to change their plans and not try to smuggle the drugs intoAustralia. The back-up plan was to unload the drugs from the Regatta when it reachedNew Zealand.[12] Mr Yelengwe Yonkwa-Dingom was dispatched to New Zealand on 3December 2017 and booked himself into accommodation using a false identity inPaihia. He used at least two identities while staying in the Bay of Islands. The Regattaarrived in the Bay of Islands on 5 December 2017. Two members of the syndicate leftthe ship and transferred the cocaine to Mr Yelengwe Yonkwa-Dingom.[13] New Zealand Customs officials searched the Regatta when it arrived inAuckland on 6 December 2017. There was insufficient evidence to detain the twocouriers aboard the Regatta who were able to fly from New Zealand to France on7 December 2017. Police and Customs staff then focused their attention on the Bayof Islands.[14] Following a two-week surveillance exercise, law enforcement officialsexecuted a search warrant at the Paihia Youth Hostel on 20 December 2017. In theroom occupied by Mr Yelengwe Yonkwa-Dingom, the police found a backpackcontaining 23.7 kilograms of cocaine, which had a street value of between $6.8 and$10.8 million. Mr Yelengwe Yonkwa-Dingom was later located in Kerikeri andarrested.[15] Amongst the items seized from Mr Yelengwe Yonkwa-Dingom were a cellphone, an iPad and a laptop computer. Police noted that several persons wereattempting to contact Mr Yelengwe Yonkwa-Dingom. He was asked to supply thepasswords for the phone and computer devices, but he refused to do so.[16] On 3 July 2019, Lang J provided Mr Yelengwe Yonkwa-Dingom with asentence indication which he accepted.7Sentencing decision[17] In his sentence indication, Lang J:(a) assessed the significance of the role played by Mr YelengweYonkwa-Dingom in the syndicate. The Judge accepted thatMr Yelengwe Yonkwa-Dingom was not the head of the organisation,but nevertheless he was higher up the chain of command than thepersons who delivered the cocaine to him. Mr YelengweYonkwa-Dingom was assessed as being "more than a courier or a'catcher'" and that he was "very much involved in the importation ofthe cocaine into this country";8(b) drew a comparison between the amount of cocaine in this case with thatin R v Cook.9 Although that case involved the importation of35 kilograms of cocaine, the Judge said that the role played byMr Yelengwe Yonkwa-Dingom was also greater than that played by thedefendant in Cook and his co-offender;10(c) used this Court's judgment in R v Fatu11 as a cross-reference whenadopting a starting point of 19 years' imprisonment.12 The Crown hadargued for a starting point of between 18–20 years andMr Yelengwe Yonkwa-Dingom's counsel had submitted an appropriatestarting point was between 16 and 18 years;(d) indicated a reduction of 18 per cent to reflect any guilty plea;137 R v Yonkwa-Dingom [2019] NZHC 1555 [Sentence indication].8 At [16]–[17].9 R v Cook [2017] NZHC 2034.10 Sentence indication, above n 7, at [21].11 R v Fatu [2006] 2 NZLR 72 (CA).12 Sentence indication, above n 7, at [18] and [22]–[23].13 At [24]–[25].(e) left open the possibility of further deductions to reflect any personalmitigating factors that might emerge;14 and(f) explained that an MPI that reflected 50 per cent of the end sentencewould be appropriate.15[18] The sentencing indication was that Mr Yelengwe Yonkwa-Dingom would besentenced to 15 years and six months' imprisonment with an MPI of half the endsentence.16[19] At the sentencing hearing, Lang J took into account further mitigating factorsthat were revealed in the pre-sentence report. Mr Yelengwe Yonkwa-Dingom hadexplained to the pre-sentence report writer that he needed money to assist his brother,who was in prison and needed a lawyer, and his sister, who had two young childrenand needed accommodation after separating from her partner. He therefore acceptedan offer of $50,000 to participate in the importation of cocaine into Australia. Aftertaking these factors into account, Lang J reduced by six months the sentence he hadpreviously indicated, thereby producing the end sentence of 15 years' imprisonment.17The indicated MPI of 50 per cent was not changed.18Zhang v R19[20] As we have noted, when setting the starting point, Lang J referred to thisCourt's earlier methamphetamine sentencing judgment in Fatu20 as a "cross-check" aswell as the High Court's decision in Cook.21[21] Fatu was superseded by this Court's judgment in Zhang, which also concernedmethamphetamine offending. While there may be room to distinguish betweencocaine and methamphetamine offending, the case law currently recognises that it is14 At [30].15 At [29].16 At [30].17 Sentencing notes, above n 1, at [10] and [11].18 At [10].19 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.20 R v Fatu, above n 11.21 R v Cook, above n 9.helpful to continue to use the methamphetamine offending guidelines from this Courtas a point of reference in cocaine cases.22[22] Zhang applies to all sentencing that takes place after 21 October 2019 and tosentences imposed prior to that date if two conditions are met:23(a) an appeal against sentence has been filed before the date the judgmentwas delivered; and(b) the application of the judgment would result in a more favourableoutcome to the appellant.[23] The time for Mr Yelengwe Yonkwa-Dingom to lodge his appeal expired on22 October 2019, the day after the decision in Zhang was delivered.[24] The Crown fairly accepts that in light of the steps taken byMr Yelengwe Yonkwa-Dingom to obtain advice during the appeal period, we shouldproceed on the basis that Mr Yelengwe Yonkwa-Dingom attempted to exercise hisappeal rights within the appeal period but, for reasons that are not attributable to him,he was unable to do so. The Crown acknowledges "that this Court may apply Zhangby way of 'cross check' in the circumstances of this appeal". We intend to follow thatcourse.Appropriate starting point[25] Zhang reaffirmed the quantity of drugs involved in offending is the "firstdeterminant" of sentencing as a "reasonable proxy for the social harm done by thedrug".24 The quantity of cocaine in this case would, in the context ofmethamphetamine offending, place Mr Yelengwe Yonkwa-Dingom squarely withinband five of Zhang, attracting a starting point of 10 years to life imprisonment.2522 Clarke v R [2013] NZCA 473; and Wilk v R [2020] NZCA 172.23 Zhang v R, above n 19, at [187] and [188].24 At [103].25 At [125].[26] Zhang also reinforced the need for the court to evaluate the role of the offenderwhen setting the starting point. In assessing the role of any offender, the Court inZhang approved referencing the United Kingdom's Sentencing Council indicia of anoffender's role:26[27] There is very little meaningful difference between Mr de Groot, who arguedthe case for Mr Yelengwe Yonkwa-Dingom, and Ms Gibbs, who argued the case forthe Crown, when analysing the role of Mr Yelengwe Yonkwa-Dingom. Both acceptedhe played a significant role, with Mr de Groot suggesting the appropriate starting pointwas 15 years' imprisonment and the Crown saying 16 years most accurately reflectedMr Yelengwe Yonkwa-Dingom's role in the offending.26 At [126].[28] We did agree with Mr de Groot when he submitted thatMr Yelengwe Yonkwa-Dingom did not give instructions to others and so was not inthe upper echelons of the syndicate. The facts clearly demonstrate, however,Mr Yelengwe Yonkwa-Dingom:(a) was heavily involved in organising the logistics of the drug smugglingenterprise;(b) was highly trusted, and provided with significant cash to cover hisexpenses;(c) travelled extensively and was in regular communication with othermembers of the syndicate;(d) was the "fix it man" (our description) when it became clear to thesyndicate that it was no longer possible to import the cocaine intoAustralia. At very short notice Mr Yelengwe Yonkwa-Dingom flew toNew Zealand where he set up base for two and a half weeks, duringwhich time he was the sole custodian of the cocaine. He was the personthe syndicate trusted to try and resolve a very difficult problem. Whileit is true there was no one junior to Mr Yelengwe Yonkwa-Dingom inNew Zealand, that was because the syndicate originally did not intendto land the cocaine in this country; and(e) was to be paid a very significant sum for his services to the syndicate.[29] We think there are close parallels between Mr Yelengwe Yonkwa-Dingom'srole and that of Mr Zhang. Mr Zhang was convicted of importing 17.9 kilograms ofmethamphetamine. He came to New Zealand from Canada and made arrangements totake receipt of a freight package. The drugs were intercepted and replaced with asubstitute. After receiving the package Mr Zhang made preparations to deal with thedrug and was arrested packaging them. This Court found that Mr Zhang was morethan merely "a catcher" and intended to package the drug for sale. He was, however,acting on instructions. This Court said that it would have set the starting point at15 years.27[30] Our assessment of the relative culpability of Mr Yelengwe Yonkwa-Dingomand Mr Zhang leads us to the conclusion that a 15-year starting point appropriatelyreflects Mr Yelengwe Yonkwa-Dingom's role and the quantity of cocaine involved inthis case. The approach that we are taking is also consistent with other decisions ofthis Court.28Adjustments[31] Although Mr Yelengwe Yonkwa-Dingom pleaded guilty a considerable periodof time after his first appearance, counsel endorsed the approach taken by Lang J whenhe reduced his sentence by 18 per cent to reflect Mr Yelengwe Yonkwa-Dingom'sguilty plea. We shall apply a similar discount. Doing so produces a provisionalsentence of 12 years' imprisonment.[32] We have received a report prepared pursuant to s 27 of the Sentencing Act2002. Mr de Groot sought leave to present that report as fresh evidence, and we grantleave accordingly.[33] We now understand from the s 27 report that Mr Yelengwe Yonkwa-Dingomlost both his parents at an early age and was sent to live with relatives in Nantes,France. He grew up in a very challenging environment in which drugs were rife.Mr Yelengwe Yonkwa-Dingom felt a strong sense of responsibility to help his brother,who was imprisoned, and his sister, who is attempting to bring up two children on herown. Mr Yelengwe Yonkwa-Dingom felt compelled to join the syndicate in order toprovide financial support for his siblings and family.[34] The author of the s 27 report has drawn a connection betweenMr Yelengwe Yonkwa-Dingom's offending and his cultural dislocation/vulnerability.27 At [256] and [257].28 Pai v R [2020] NZCA 146; Wan v R [2020] NZCA 328; Fangupo v R [2020] NZCA 484; andRahman v R [2021] NZCA 262.[35] We will apply the following discounts to take account ofMr Yelengwe Yonkwa-Dingom's personal circumstances:(a) Nine months to reflect the cultural dislocation Mr YelengweYonkwa-Dingom experienced when he was taken from Cameroon toFrance. We appreciate that his upbringing in France probablycontributed in a significant way to his subsequent criminal offending.(b) Three months to reflect the challenges he will face as a foreign nationalserving a long sentence in a New Zealand prison.[36] This produces an end sentence of 11 years' imprisonment.MPI[37] Mr de Groot submitted that an MPI was unnecessary in this case, particularlyin light of Mr Yelengwe Yonkwa-Dingom's age, the likelihood of him being deportedand his lack of previous convictions.[38] We disagree. Mr Yelengwe Yonkwa-Dingom played a crucial role in asophisticated scheme to smuggle a very large quantity of cocaine into New Zealand.That offending formed part of a larger enterprise involving the importation of cocaineinto Australia from South America. Mr Yelengwe Yonkwa-Dingom was solelyresponsible for receiving and guarding the cocaine that reached New Zealand. Heengaged in the enterprise for significant financial gain.[39] In our assessment, an MPI of 50 per cent of the end sentence is necessary inorder to:(a) denounce Mr Yelengwe Yonkwa-Dingom's conduct;(b) deter others who might be minded to come to New Zealand to facilitatethe importation of illicit drugs; and(c) ensure Mr Yelengwe Yonkwa-Dingom is held properly accountable forhis offending.Result[40] The application for an extension of time to appeal is granted.[41] The application to adduce further evidence is granted.[42] The appeal is allowed.[43] The sentence of 15 years' imprisonment with an MPI of seven years and sixmonths is quashed and substituted with a sentence of 11 years' imprisonment with anMPI of five years and six months.Solicitors:Crown Solicitor, Auckland for Respondent