PAI v R [2020] NZCA 146

PAI v R [2020] NZCA 146 [6 May 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA18/2019[2020] NZCA 146BETWEEN HAO-JEN PAIAppellantAND THE QUEENRespondentHearing: 3 March 2020Court: Courtney, Ellis and Brewer JJCounsel: B L Sellars QC for AppellantZ A Fuhr for RespondentJudgment: 6 May 2020 at 12.30 pmJUDGMENT OF THE COURTA The application for extension of time to appeal is granted.B The appeal is allowed.C The sentence and MPI are quashed.D The substituted sentence is 10 years and 10 months' imprisonment with aMPI of five years and five months' imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Brewer J)Introduction[1] On 25 September 2015 Lang J sentenced Mr Pai to 12 years and eight months'imprisonment on one charge of importing methamphetamine and one charge ofpossessing methamphetamine for supply.1 Lang J also imposed a minimum period ofimprisonment (MPI) of 50 per cent of the sentence. Mr Pai entered pleas of guilty tothe charges having received a sentence indication from Faire J on 31 July 2015.2[2] Mr Pai now wishes to appeal his sentence contending it is manifestlyexcessive. He submits also that no MPI should have been imposed.[3] Mr Pai filed his notice of appeal on 23 January 2019. That is about three yearsand three months out of time.3 Accordingly, Mr Pai applies to the Court to extend thetime for filing the notice of appeal.[4] The Crown opposes Mr Pai's application.[5] Mr Pai has filed an affidavit in support of his application. In it he explains thatas a young Chinese man with very limited English he had little knowledge of theNew Zealand legal system and tried unsuccessfully for some time to find a lawyerwith whom to discuss his case. He deposes that the counsel who represented him atsentencing had told him the sentence was a fair one and that an appeal could notsucceed. Mr Pai says it was only a change of cellmates that brought Ms Sellars QC'sname to his attention.[6] In R v Lee, this Court said that:4 A long delay is a major factor weighing against leave being granted and, ifunexplained, would usually be decisive.[7] Mr Pai filed his notice of appeal within the period which would otherwiseentitle his case to be assessed through the lens of the new tariff case onmethamphetamine offending, Zhang v R.5 One of the cases considered by the Courtin Zhang was that of Mr Yip.6 He was in a similar position to Mr Pai in that he brought1 R v Pai [2015] NZHC 2345 at [16] [Sentencing decision].2 R v Pai [2015] NZHC 1808 [Sentence indication].3 Criminal Procedure Act 2011, s 248(2).4 R v Lee [2006] 3 NZLR 42 (CA) at [115].5 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [188].6 At [282]–[310].his appeal approximately two years and nine months out of time. The Court grantedMr Yip's application.[8] Ordinarily, a delay of this magnitude would require considerable scrutiny. But,given the nature of the Zhang judgment, and acknowledging Mr Pai's personalcircumstances as a foreign national with limited English, we grant Mr Pai'sapplication and extend the period for the filing of his notice of appeal.[9] Our task is to inquire whether there is an error in Mr Pai's sentence such that adifferent sentence should be imposed.Background[10] On 5 November 2014 Mr Pai and four of his friends flew to New Zealand fromTaiwan for a holiday. Mr Pai was 22 years old. They were due to leave New Zealandon 19 November 2014.[11] At some point in their holiday the five friends went to the Westfield Mall inManukau. There they were approached by a stranger, a middle-aged Taiwanese manwho called himself Robert. The man told the group he had a proposition that couldmake them some money. He told the group he would pay them $20,000 if they renteda house and received a package on his behalf.[12] Mr Pai and one of his friends (Mr Chien) accepted the offer. They agreed torent a house for two months and receive a consignment on behalf of "Robert" forwhich they would be paid $10,000 each.[13] The man gave Mr Pai a cellphone and instructed him to use the phone tocommunicate with him. At the man's request, Mr Pai handed over his Taiwanesepassport so that the man could photocopy it.[14] The three friends of Mr Pai and Mr Chien did not want to have anything to dowith the man's proposal. Indeed, they changed their ticketing and left New Zealandon 15 November 2014.[15] Mr Pai and Mr Chien, on the other hand, stayed in New Zealand and rented ahouse. The power supply was registered to Mr Pai and the power was connected on13 November 2014.[16] Time went by. It can be inferred the consignment Mr Pai and Mr Chien werewaiting for was delayed. Mr Pai and Mr Chien changed their ticketing to leaveNew Zealand at least six times.[17] On 28 November 2014 a consignment of two crates containing a total of15 machines was sent from Taiwan addressed to Mr Pai at the address he and Mr Chienhad rented.[18] On 1 December 2014, a New Zealand Customs Client Code was applied for inMr Pai's name, with a copy of his passport being provided with the application.[19] On 2 December 2014, a Licensed Customs Broker created a New ZealandCustoms entry for the consignment which declared the contents as "machines forworking wire".[20] On 5 December 2014, New Zealand Customs examined the consignmentwhich had arrived by air freight. It consisted of two plywood crates. One cratecontained 12 wire drawing machines and the other crate contained three larger wiredrawing machines. All the machines were bolted to metal blocks. Inside the metalblocks was methamphetamine.[21] The total weight of methamphetamine inside the metal blocks was22.6 kilograms. The summary of facts gives the estimated street value as between$6,364,160 and $11,932,800.[22] On 9 December 2014, the Licensed Customs Broker emailed the consigneeemail address provided in the client code application to confirm the consignmentwould be delivered at midday on Thursday, 11 December 2014. The email included arequest for the delivery address to be confirmed.[23] An unknown person purporting to be Mr Pai replied to the email advising thedelivery address was that of the house rented by Mr Pai and Mr Chien.[24] Mr Pai and Mr Chien then changed their flights to a standby flight forThursday, 11 December 2014 with a firm booking for Friday, 12 December 2014.[25] The machines, in their two crates, were delivered to the rental address at1.17 pm on Thursday, 11 December 2014. Mr Pai signed for the delivery.[26] Mr Pai then caught a taxi to a tool shop and bought tools including a hammer.Upon his return Mr Pai and Mr Chien spent approximately 30 minutes removing the15 machines from their containers and carrying them into the address.[27] The next day, the pair went to Auckland International Airport and checked infor their flight to go back to Taiwan. They were arrested.[28] Mr Pai still had the keys to the rental address.[29] Mr Pai and Mr Chien admitted their involvement.[30] Mr Pai asked for a sentence indication on the basis he had no previous criminalhistory of any sort. The PAC report assessed him as having a low likelihood of furtheroffending and a low risk of harm to others in the community. The following is takenfrom the PAC report:Mr Pai said prior to coming to New Zealand for the trip, he was in a chaoticstage of his life in that, he lost a large amount of money in the stock marketand had borrowed money creating a significant amount of debt; "I was undera lot of stress and I didn't tell my parents about my debt". He agreed that themain driver for his offending was financial gain; and he did not know theserious consequences of his actions. Mr Pai said since his incarceration,he has learnt more about drugs and its serious impact on people; and he thenrealised how serious his offending was; how many victims could be affectedand how New Zealand society would be affected as a whole.The sentence indication[31] Faire J considered the aggravating factors of the offending to be the quantityimported, the commerciality of Mr Pai's involvement, the premeditation and degreeof involvement, and the extent of social harm.7[32] Faire J accepted that Mr Pai and Mr Chien were not the masterminds of theoperation and that it was possible they may not have known what they were importingor the precise quantity:[17] In that respect, your culpability is low to medium. The samehowever cannot be said about your degree of premeditation. Your offendingwas motivated by financial gain. The house was rented as you were instructedto do. You postponed your flights back to Taiwan multiple times, finallybooking them to be the day after the package arrived. You clearly intended todisappear as quickly as possible. When the pallets arrived, you did not justsign for them, you unpacked them using tools which were bought for thatpurpose and you carried them inside. Each of you displayed a high level ofpremeditation.[33] Faire J applied the tariff case current at the time, R v Fatu.8 The case fell withinband 4 of Fatu, which was for quantities of more than 500 grams.9 The starting pointrange for importing methamphetamine was 12 years to life imprisonment. Faire J said:[20] The placing within band four for each of you will depend on thequantity of methamphetamine imported and on the role each of you played inthe operation.[34] Faire J reviewed seven previous cases he found relevant to his task.10He considered Mr Pai and Mr Chien acted as "catchers". He said:[28] The submission that the offending was due to your naivety has onlylimited weight. You were recruited very quickly by a complete stranger. Youwere offered a substantial payment and you accepted the instructions withoutquestion. It is not clear on the summary of facts if your suspicions that anillegal transaction was taking place were aroused. In any case, I consider that7 Sentence indication, above n 2, at [16].8 R v Fatu [2006] 2 NZLR 72 (CA).9 At [36].10 Sentence indication, above n 2, at [25]: R v Nguyen [2009] NZCA 239; R v Wong [2009] NZCA332; R v Shaida HC Auckland CRI-2004-004-6330, 21 September 2004; R v Boyarski HCAuckland CRI-2006-092-12125, 29 May 2007; Chen v R [2010] NZCA 552; Solicitor-General vHuang [2011] NZCA 436; and R v Soles [2014] NZHC 2665.any naivety you may have had is less than the naivety shown by the defendantin R v Soles.11[35] Faire J adopted a starting point of 18 years' imprisonment for both Mr Pai andMr Chien.[36] As for personal mitigating factors, Faire J gave indications only, recognisingthat a full consideration should be left to sentencing.12 The Judge considered a20 per cent discount for guilty pleas would be appropriate.13[37] Faire J also accepted a MPI of 50 per cent should be imposed.14 In doing sohe reviewed the basis for ordering a MPI.15[38] The actual sentence indication given to Mr Pai and Mr Chien was 14 years andfour months' imprisonment with the reservation that the end sentence could be lowerdepending upon other mitigating factors.16The sentencing[39] It fell to Lang J to sentence Mr Pai and Mr Chen. He did that on the basis ofFaire J's indication, but taking into account the submissions of counsel at thesentencing hearing. The indicated starting point of 18 years' imprisonment remainedthe starting point.[40] Lang J increased the discount for guilty pleas by four months.17 That took thediscount from three years eight months' imprisonment to four years' imprisonment(22 per cent).11 R v Soles, above n 10. Mr Soles imported six kilograms of methamphetamine concealed in asuitcase given to him by Nigerian scammers. He was 73 years old. His culpability arose fromwilful blindness. The Judge accepted Mr Soles fell victim to a scam out of his own naivety andadopted a starting point of 10 years' imprisonment.12 Sentence indication, above n 2, at [32].13 At [33].14 At [41].15 At [34]–[40].16 At [42].17 Sentencing decision, above n 1, at [7].[41] The Judge gave a global discount of one year four months' imprisonment(7.4 per cent) to take account of the following personal mitigating factors:18(a) age and no previous criminal record;(b) greater difficulty serving a sentence of imprisonment as foreignnationals who speak no English; and(c) expressions of remorse.[42] These discounts produced an end sentence of 12 years eight months'imprisonment.[43] Lang J also dealt with the issue of whether he should revisit Faire J's decisionthat it would be appropriate to impose a MPI of 50 per cent. The Judge considered aMPI imprisonment of 50 per cent was appropriate and imposed it for both men.19The appeal[44] Ms Sellars submits that Faire J mischaracterised Mr Pai's role in theimportation of the methamphetamine. This led to an overstatement of Mr Pai'sculpability and hence the starting point of 18 years' imprisonment was unjustifiablyhigh. In her submission, Faire J should have found that Mr Pai acted with "extremeyouthful naivety" and, in the language of the United Kingdom sentencing guidelinesendorsed by this Court in Zhang, should have concluded Mr Pai played a lesser role.Ms Sellars points to Zhang and decisions of the High Court which post-date Zhang20as demonstrating that Mr Pai's starting point is disproportionately high.[45] In respect of the MPI, Ms Sellars submits it was not justified. Both Faire J andLang J referred, in various terms, to what amounts to a "practice" of imposing an MPIin cases where the end sentence exceeds nine years' imprisonment. This Court inZhang directed that if there is such a practice then it must cease.2118 At [8]–[11].19 At [15].20 R v Fangupo [2019] NZHC 2896; and R v Cutler [2019] NZHC 2737.21 Zhang, above n 5, at [172].Discussion[46] We begin by observing that the previous tariff case, Fatu, had separate bandsfor supplying, importing and manufacturing methamphetamine. The highest band,band 4, provided a sentence range of 12 years to life imprisonment where the amountimported was 500 grams or more.22 The Court in Zhang eliminated separate bands forthe three modes of offending. The Court also divided Fatu band 4 into two parts, thuscreating a band 5. Band 5 applies to quantities of methamphetamine in excess of twokilograms and the band range is 10 years to life imprisonment.23[47] Ms Sellars submitted that Faire J's assessment of the starting point is too high,partly because the starting point for Fatu band 4 (importing) was two years higher thanthe starting point for Zhang band 5. We do not accept that submission. Fatu required,and Zhang requires, a starting point to reflect the culpability of the offender in respectof the offending. The quantity of methamphetamine concerned places offendingwithin a particular band and will influence where in the band it is placed initially. Butthen role comes into the assessment. Culpability is linked to role and role willinfluence where in the band the starting point is fixed. In appropriate cases, a minorrole can move the starting point to a lower band. A leading role will move the startingpoint higher in a band.[48] The fact that Fatu band 4 (importing) started at 12 years' imprisonment forimporting 500 grams or more of methamphetamine does not mean that a starting pointassessed thereunder will by that reason be higher than a starting point assessed underZhang band 5. The focus is on doing justice in the individual case by taking dueaccount of all the relevant circumstances.[49] We emphasise that Zhang does not provide for an overall lowering of sentencesfor commercial involvement in the methamphetamine trade.24 Zhang provides formore flexibility in sentencing at the lower end of culpability (in particular). At alllevels, role is to be considered carefully in deciding where within a sentencing band adefendant should be placed.22 Fatu, above n 8, at [36].23 Zhang, above n 5, at [125].24 Zhang, above n 5, at [11].[50] We will assess Mr Pai's sentence through the lens of Zhang to determinewhether an error has been made such that his end sentence is manifestly excessive andshould be reduced. We will also assess whether a MPI should have been imposed.[51] The quantity of methamphetamine was 22.6 kilograms. That puts the case wellinto band 5, being more than 11 times the entry level of two kilograms.[52] We assess Mr Pai's role as significant, but at the lower end. As with Mr Zhang,he served an operational function within the chain. He provided "Robert" with hispassport, rented a house to be used as the consignment address, signed for theconsignment, bought tools to open it, opened it and moved the machines into thehouse.[53] Mr Pai's motive was financial — he needed money and was to receive$10,000. However, that sum is completely disproportionate to the street value of thedrugs. He did not direct others and instead received instructions.[54] There is no evidence Mr Pai was told what drug was to be imported or thequantity. But clearly this was a significant operation and that would have been obviousto Mr Pai. It can be inferred that the type of drug and its quantity was immaterial toMr Pai.[55] Mr Zhang assisted with importing a lesser quantity of methamphetamine thanMr Pai (17.9 kilograms as opposed to 22.6 kilograms) but took a more active role.Mr Zhang came to New Zealand for the purpose of assisting with the importation, tooksteps to ensure the consignment cleared Customs, and his role extended to packagingthe drugs for sale.[56] This Court considered a starting point of 15 years' imprisonment appropriatefor Mr Zhang.25 Balancing Mr Pai's lesser role with the greater quantity of25 Zhang, above n 5, at [257]. The starting point adopted in the District Court was 17 years'imprisonment. But Mr Zhang challenged only his MPI on appeal. The Court neverthelessconsidered what Mr Zhang's appropriate starting point would have been if assessed under the newguidelines.methamphetamine, we assess 15 years' imprisonment as also being the appropriatestarting point for Mr Pai.[57] Ms Sellars does not take issue with the discounts accorded to Mr Pai.However, Ms Sellars emphasised what she submitted was Mr Pai's naivety andyouthful impulsiveness in agreeing to "Robert's" proposition. She submitted thatFaire J did not take this into account sufficiently, and so was wrong to conclude thatMr Pai's offending was significantly premeditated.[58] Premeditation is a factor to be taken into account in assessing the culpabilityof offending. Personal factors such as age and naivety are for the second stage of thesentencing process. Here they are run together. In reaching our assessment of thestarting point we considered:(a) The decision to accept "Robert's" proposal may well have beenimpulsive. It was a decision to join a conspiracy to import controlleddrugs. It was a decision Mr Chien was also prepared to make, but itwas a decision their three companions shied away from to the extentthey truncated their holiday in New Zealand.(b) Renting the house, providing his passport, changing his flights at leasthalf a dozen times and waiting for the consignment for a period from atleast 13 November 2014 to 11 December 2014 shows Mr Pai had acontinuing readiness to commit the offence of importing the drug.[59] We consider the discounts awarded by Lang J to be appropriate. The sentencebecomes:• Initial starting point: 15 years' imprisonment• Personal factors discount: 1 year 1 month's imprisonment (7.4%)• Final starting point: 13 years 11 months' imprisonment• Guilty plea discount: 3 years 1 month's imprisonment (22%)• End sentence: 10 years 10 months' imprisonment[60] It follows we will allow the appeal against sentence.MPI[61] As the Court said in Zhang, minimum periods of imprisonment must not beimposed as a matter of routine or in a mechanistic way.26 Section 86 of the SentencingAct 2002 provides:(1) If a court sentences an offender to a determinate sentence ofimprisonment of more than 2 years for a particular offence, it may, atthe same time as it sentences the offender, order that the offender servea minimum period of imprisonment in relation to that particularsentence.(2) The court may impose a minimum period of imprisonment that islonger than the period otherwise applicable under section 84(1) of theParole Act 2002 if it is satisfied that that period is insufficient for allor any of the following purposes:(a) holding the offender accountable for the harm done to thevictim and the community by the offending:(b) denouncing the conduct in which the offender was involved:(c) deterring the offender or other persons from committing thesame or a similar offence:(d) protecting the community from the offender.(3) [Repealed](4) A minimum period of imprisonment imposed under this section mustnot exceed the lesser of—(a) two-thirds of the full term of the sentence; or(b) 10 years.(5) For the purposes of Part 6 of the Criminal Procedure Act 2011, anorder under this section is a sentence.[62] It follows that each case must be analysed properly against the requirements ofs 86. This Court in Zhang heard submissions to the effect that it had become a practiceto impose MPIs in serious drug offending where the end sentence was nine years orlonger. The Court said that any such practice must stop.2726 At [169].27 At [172].[63] Here, Ms Sellars submits that neither Faire J nor Lang J properly analysed s 86but fell into adopting this practice. Ms Sellars' submission is that the s 86(2) factorsdo not apply to Mr Pai. He is a first offender who fell into offending through naivetyand youthful ignorance. He is subject to a significant sentence and no furtherdenunciation or giving effect to the principle of deterrence is necessary.[64] We do not agree that either Faire J or Lang J adopted a mechanistic approachto their decisions that a MPI was necessary. Faire J set out the law, including thepurpose of the imposition of a MPI, and considered the case law.28 Lang J said, inresponse to a submission that a MPI was not necessary:29[14] My answer to that submission is that the Court has very few toolsavailable to it to assist in the war against serious drugs. One of the toolsavailable to it is to impose deterrent sentences. I consider it would sendentirely the wrong message to importers of drugs if the courts were to refrainfrom imposing minimum terms of imprisonment in serious cases. I say thatbecause those persons who recruit couriers and catchers of drugs such as youwould be able to tell potential recruits that they would be released anddeported after serving just one-third of their sentence of imprisonment. Thatmay serve to encourage people like you to become involved in the importationof drugs in the future.[15] In the ordinary course of events you would be eligible to apply forparole after serving approximately four years three months imprisonment. ByNew Zealand standards, this importation of methamphetamine was extremelylarge. It was highly valuable and if it had not been intercepted it would havecaused untold misery for citizens of this country. In cases of serious drugoffending, the courts now routinely impose minimum terms of imprisonmentof 50 per cent. I see no reason to depart from that practice in the present case.[65] In making his final comments, Lang J was not adopting a practice. He hadconsidered whether to depart from what was commonplace and concluded he shouldnot.[66] In deciding that Mr Zhang's MPI should remain, the Court said:30[263] However, this was knowing participation in substantial,commercial-scale drug offending with potentially very serious socialconsequences. It is unmitigated by vulnerability of any kind. Absentimposition of a minimum period, Mr Zhang would be eligible for release afterjust two years and 10 months' imprisonment. We consider that would send an28 Sentence indication, above n 2, at [34]–[41].29 Sentencing decision, above n 1.30 Zhang, above n 5.unacceptable message to those participating, or minded to participate, incommercial-scale drug dealing. Mr Zhang is now remorseful and he poseslittle future risk to New Zealand, but deterrence, denunciation andaccountability for commercial-scale drug offending, all require he serve alonger sentence than two years and 10 months' imprisonment. We thereforeagree with the Judge that a minimum period of 50 per cent of the end sentencewas justified in this case.[67] We consider that this analysis, applied relevantly to Mr Pai's case, yields thesame outcome for Mr Pai. It follows we consider it was appropriate for an MPI of50 per cent of the final sentence to be imposed. That now amounts to five years andfive months' imprisonment.Decision[68] The application for extension of time to appeal is granted.[69] We find the sentence of 12 years and eight months' imprisonment wasmanifestly excessive. We find also that the imposition of a 50 per cent MPI wasappropriate.[70] The appeal is allowed. Mr Pai's sentence and MPI are quashed. They arereplaced with a sentence of 10 years and 10 months' imprisonment and a MPI of fiveyears and five months' imprisonment.Solicitors:McVeagh Fleming, Auckland for AppellantCrown Law, Wellington for Respondent