WANG v POLICE [2017] NZHC 787

WANG v POLICE [2017] NZHC 787 [27 April 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2017-404-000064[2017] NZHC 787BETWEEN HUI WANGAppellantAND NEW ZEALAND POLICERespondentHearing: 26 April 2017Counsel: OE Harold for AppellantGA Campbell for RespondentJudgment: 27 April 2017JUDGMENT OF DOWNS JThis judgment was delivered by me on Thursday, 27 April 2017 at 1 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel:OE Harold, Auckland.Meredith Connell, Auckland.The appeal[1] This is an appeal against sentence. On 27 February 2017 Judge Johnssentenced the appellant to a term of two years and nine months' imprisonment inrelation to a charge of possessing methamphetamine for the purpose of supply and another of supplying that drug.1Background[2] The facts are straightforward. In September 2016 Police commenced an investigation into methamphetamine distribution. On 8 November they went to a Swanson address to execute a search warrant. While there, Mr Wang arrived in a car. He was stopped in the driveway. Police said they would search for drugs under the Search and Surveillance Act 2012. Mr Wang admitted he had two ounces of methamphetamine in the car which he intended to deliver. Police searched it. They found approximately 60 grams of methamphetamine in the driver's door panel.Following arrest, Mr Wang said this was the second time he had been to the address to supply methamphetamine. He told the Police he met his supplier by chance at ahardware store. While brief, the appellant's Police statement is suggestive ofopportunistic offending in consequence of a serendipitous meeting with a stranger. Mr Wang said he received $500 for each delivery.[3] The appellant told the pre-sentence writer he was asked to supply the drugsby his "employer". What he meant by that remains unclear.[4] Mr Wang entered guilty pleas on 28 November 2016.[5] With reference to the Court of Appeal's guideline judgment of R v Fatu,2Judge Johns adopted a starting point of four years' imprisonment. Her Honourdiscounted the sentence by five percent for prior good character and then 25 percent for guilty plea-entry. The Judge then rounded up the discount (from 14 and a half months) to 15 months, giving rise to the appealed sentence of two years and ninemonths' imprisonment.1 R v Wang [2017] NZDC 3961.2 R v Fatu [2006] 2 NZLR 72, (2005) 22 CRNZ 410.The appellant's case[6] There are three points. First, the Judge was wrong to infer Mr Wang was a close associate of those higher up the supply chain. Second, the starting point was too high. Third, further discount should have been given for Mr Wang's personalcircumstances: his building company will not survive his incarceration and he has family to care for.[7] The first two points allege the starting point was too high. The third alleges inadequate discount.Was the starting point too high?[8] Here, it is worth repeating exactly what the Judge said. After reciting the relevant principles of the Sentencing Act, Judge Johns observed:3This was [a] large amount of methamphetamine, Mr Wang. You were intercepted before you were able to make the delivery. Who knows what may have occurred if the delivery had taken place. You knew what you were delivering and you knew the amount you were delivering because you were able to tell the police almost exactly how much you had. The circumstances you describe in your pre-sentence report as to how you became involved and how little you knew about the other people in my view beggars belief. Sixty grams of methamphetamine is worth an inordinate amount of money and somebody would not have simply given it to you if they did not have a reasonably close association with you either personally or professionally.[9] Mr Harold, for Mr Wang, extrapolates from these remarks what he considersto be the Judge's reasoning:The Court's reasoning appears to have been that the Appellant must have been a person "trusted" by the person or group who were the leaders in the illicit supply and thus must have been a "member" or "close associate" of these others as otherwise he could have "made off" with drugs worththousands to sell and profit from all by himself.[10] Mr Harold submits this self-supplied reasoning fails to take account of Mr Wang's personal circumstances:The Court has not taken into account that the Appellant has a wife and four children, has his own company where he is an employer, and also has his3 At [8].whole immediate family including his parents and siblings resident in New Zealand.The Appellant had nowhere to "make off" to with drug dealing profitswhereby he, or his family, would be unable to be located by the person or group who were the leaders in the illicit venture.[11] This argument presupposes the appellant's construction of the Judge'sremarks is correct, or at least reasonably available. The Judge's point was twofold: the appellant's explanation was inherently implausible, and his connection to theoffending was greater than he had acknowledged. There is no basis to read more into what the Judge said. In any event, it was open to the Judge to reject theappellant's explanation.[12] Next, Mr Harold refers to the procedural history of this matter to demonstrate Mr Wang was not a member of an organised criminal group. At the time Mr Wang was granted bail, Police sought a curfew because investigations were continuing and fresh charges could be laid if further offending came to light. The curfew wassubsequently removed. No fresh charges have been laid. In Mr Harold'ssubmission, this suggests a limited involvement on the part of Mr Wang in any drug dealing syndicate.[13] This submission does not further the appellant's case. Nowhere inHer Honour's sentencing notes did the Judge find Mr Wang to be a member of anorganised criminal group or drug syndicate.[14] The next issue is whether the four-year starting point is within the availablerange. The Judge was obviously correct to place this offending within band two ofFatu. This band mandates starting points ranging from three to nine years'imprisonment for supplying five to 250 grams of methamphetamine. The amountinvolved here—at least 60 grams—would tend to suggest a starting point below themiddle of the band. Selection of a starting point recognises not only the precisequantity of the drugs found but also the offender's role.44 R v Fatu, above n 2, at [31]; R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338 at [39].[15] Even on the appellant's case, he knew the quantity of methamphetamine hewas delivering. The appellant also admitted it was the second time he had delivered that drug to the address. It follows the appellant was a willing participant in two transactions, at least one of which involved a not insignificant quantity of methamphetamine (the precise quantity of the earlier transaction remains unknown). Mr Wang was paid for the deliveries: $500 each. And, it should not be overlooked offending of this nature often requires the work of many. So, while the level of commerciality is modest and Mr Wang played a relatively junior role, a starting point of four years cannot be considered excessive: mere go-betweens in the underworld perform an important role, and deterrence in this area is the over-arching sentencing imperative.[16] In reaching this conclusion, I have considered the cases cited by the Crown to Judge Johns. I agree with Mr Harold the cases of Mills v R5 and R v Gaitau6 are of limited assistance. Those cases involved factual situations removed from the present. In Mills the offender was in possession of 29.4 grams of methamphetamine concealed in snap lock bags alongside a number of firearms. In Gaitau the offenderwas described as a "high up middle-man" in an organised methamphetamine ring. Mr Wang's situation is different. He was sentenced as a "delivery boy" for thesupply of 60 grams with only two deliveries proved. This may explain why the Judge did not refer to these cases in her sentencing notes. In any event, the starting points adopted in Mills and Gaitau were materially higher than in the present case.7While these cases are not particularly helpful, they do not suggest error on the part ofthe Judge.[17] The third case cited by the Crown to the District Court, R v Brown, is much closer to the present facts.8 Mr Brown delivered methamphetamine on 12 separate occasions. He was, like Mr Wang, a driver. The total quantity in six of the 12 occasions was 45 grams. The quantity in relation to the remaining transactions5 Mills v R [2016] NZCA 245.6 R v Gaitau [2016] NZHC 1155.7 In Mills the Court of Appeal considered four and half years' imprisonment would have been anappropriate provisional starting point, with an uplift of 18 months to reflect the aggravating features of the offending, including the presence of firearms. In Gaitau Muir J adopted a startingpoint of six years to reflect the offender's methamphetamine offending.8 R v Brown [2016] NZCA 245.was not known. Wyle J adopted a starting point of five years' imprisonment. Thisstarting point is consistent with the four year term adopted for Mr Wang given Mr Brown's more serious offending.[18] In summary, the Judge applied Fatu in orthodox fashion to simple facts. Thestarting point is not out of line. Mr Wang's other criticisms do not permit appellateintervention.Was the level of discount too low?[19] Mr Harold contends for a greater reduction to the starting point on account of Mr Wang's personal circumstances. He submits it is reasonable to supposeMr Wang's company will not survive his long-term incarceration. That may be so. But this was a foreseeable consequence of supplying commercial quantities of methamphetamine. It is trite law personal circumstances are less important whendrug dealing is in issue. The Judge's effective discount of 6.25 percent cannot becriticised as insufficient (the Judge rounded up the discount, hence the figure of6.25 percent).Conclusion[20] The focus in a sentence appeal is ultimately the end sentence. Ordinarily, an appellate Court will not intervene when a sentence is within range. That is the position here.[21] The appeal is dismissed...Downs J