PRASAD v R [2020] NZCA 483

PRASAD v R [2020] NZCA 483 [14 October 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA116/2020[2020] NZCA 483BETWEEN JAVED MOHAMMED PRASADAppellantAND THE QUEENRespondentHearing: 30 September 2020Court: Collins, Mallon and Ellis JJCounsel: D S Niven for AppellantM R L Davie for RespondentJudgment: 14 October 2020 at 9.00 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal against sentence is allowed.C The sentence of 13 years' imprisonment is quashed and substituted witha sentence of 10 years' imprisonment.D The minimum period of imprisonment is quashed.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Mr Prasad appeals a sentence of 13 years' imprisonment imposed bythe District Court at Auckland following pleas of guilty to three charges of importinginto New Zealand a total of 7.88 kilograms of methamphetamine.1 He also appealsan order that he serve a minimum period of imprisonment (MPI) of seven years'imprisonment before he is considered eligible for parole.[2] Mr Prasad was sentenced on 8 December 2017. His notice of appeal was notfiled until March 2020. Mr Prasad has explained that he encountered difficulties inobtaining legal advice and legal aid. Although the delay in filing the notice of appealwas inordinate, the Crown acknowledges it has not been prejudiced by Mr Prasad'sdelay. We accordingly grant Mr Prasad's application to extend time for the filing ofhis appeal.Background[3] Mr Prasad is a Canadian citizen. He arrived in New Zealand on 23 April 2017and participated in a well-planned venture to import methamphetamine intoNew Zealand.[4] The first importation was between 3 and 7 May 2017. It involved Mr Prasadbooking accommodation at an Auckland address using an alias. Mr Prasad receivedat that address a FedEx package from the United States, which contained a "designerlamp". Between 8 and 11 May 2017, Mr Prasad broke open the lamp and removed2.7 kilograms of methamphetamine.[5] The second importation occurred between 8 and 15 May 2017. During thistime Mr Prasad booked accommodation at another address, using a different alias.Another "designer lamp" was to be delivered to that address from the United States.That consignment was, however, intercepted by the New Zealand Customs Service.On inspection, the lamp was found to contain 2.68 kilograms of methamphetamine.[6] The third consignment was from Canada. It was delivered to an apartmentMr Prasad was occupying in Auckland on 16 June 2017. A search warrant wasexecuted at the apartment where Customs officers located 2.5 kilograms ofmethamphetamine inside the package from Canada. A number of cell phones, SIM1 R v Prasad [2017] NZDC 27910 [Sentencing notes].cards, weighing scales and other evidence of drug dealing was also found in theapartment.[7] Mr Prasad was charged on 16 June 2017 and pleaded guilty on 3 November2017.Sentencing decision[8] Judge Ronayne adopted a starting point of 17 years' imprisonment. This wasbased on the fact that Mr Prasad's offending fell within band four of R v Fatu, theguideline judgment of this Court for methamphetamine sentencing that applied at thetime Mr Prasad was sentenced.2[9] The Judge then deducted six months' imprisonment to reflect Mr Prasad's lackof previous relevant convictions and remorse, and 42 months (just over 20 per cent)to acknowledge his guilty plea.[10] Judge Ronayne briefly dealt in the following way with the decision to imposean MPI:3[T]here is clearly a need to sufficiently address the statutory purposes ofsentencing and particularly to hold you accountable and to generally denounceand deter large scale trafficking of methamphetamine. A minimum statutorynon-parole of one-third is insufficient to meet those imperatives. Therefore,I impose a minimum period of imprisonment of seven years, which is a shadeover 50 per cent.Grounds of appeal[11] Mr Niven, counsel for Mr Prasad, submitted that the starting point adopted byJudge Ronayne was excessive, particularly when regard is had to more recentauthorities. He also argued that the need for an MPI, which, in this case equated to54 per cent of the end sentence, was not properly evaluated by the District Court Judge.Mr Niven submitted that there is no need for an MPI in this case because ofMr Prasad's age, his lack of previous convictions, his remorse and the unlikelihood hewill reoffend.2 R v Fatu [2006] 2 NZLR 72 (CA).3 Sentencing notes, above n 1, at [36].[12] For the Crown, Mr Davie submitted that although the sentence imposed was"stern", the starting point adopted by Judge Ronayne was within the range availableunder Fatu. Mr Davie also submitted that the MPI imposed in this case was anorthodox response to the seriousness of Mr Prasad's offending.Analysis[13] We have considered whether Mr Prasad's appeal should be assessed on thebasis of Zhang v R, this Court's most recent methamphetamine sentencing guidelinejudgment.4[14] In Zhang, this Court said its new guideline judgment:5 applies to all sentencings that take place after the issue of this judgment[21 October 2019] regardless of when the offending took place. It applies tosentences that have already been imposed, if and only if two conditions aresatisfied: (1) an appeal against the sentence has been filed before the datethe judgment is delivered; and (2) the application of the judgment would resultin a more favourable outcome to the appellant.[15] Mr Niven accepted it is difficult to apply the first of these criteria toMr Prasad's circumstances, even though he had taken some, albeit unsuccessful stepsto file an appeal before the Zhang judgment was delivered. While we will not applythe Zhang methodology to Mr Prasad's appeal, we do not think he will bedisadvantaged in any material way by the approach we are taking.Starting point[16] The starting point adopted by Judge Ronayne was heavily influenced by R vWong and R v Nguyen, two judgments of this Court delivered eight years beforeMr Prasad's sentencing.6[17] Mr Wong had come to New Zealand to complete the importation oftwo kilograms of methamphetamine into New Zealand from Canada. Aftercategorising Mr Wong's role as a "manager or organiser" the sentencing Judge adopted4 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.5 At [10(p)] and [187]–[191].6 R v Wong [2009] NZCA 332; and R v Nguyen [2009] NZCA 239.a starting point of 15 years' imprisonment. The end sentence was reduced to 11 yearsand three months' imprisonment after making deductions for Mr Wong's early guiltyplea and other personal mitigating factors. An MPI of 50 per cent was imposed inMr Wong's case. The end sentence and MPI were upheld by this Court.[18] Mr Nguyen was a Vietnamese national who was illegally in New Zealand.He became involved in the importation of 1.7 kilograms of methamphetamine.His role in the importation was very similar to that of Mr Prasad. At the time of hisarrest, Mr Nguyen was also found to be engaged in a sophisticated cannabis growingoperation. The sentencing Judge adopted a 16-year starting point for the charge ofimporting methamphetamine. That starting point was increased to 18 years'imprisonment to reflect the cannabis growing operation. The Judge deductednine years (50 per cent) to reflect Mr Nguyen's early guilty plea and other mitigatingfactors that were referred to in a memorandum. The Judge also imposed an MPI offour and a half years. On appeal, no issue was taken with the starting point.Instead, counsel sought an even greater deduction for mitigating factors and theremoval of the MPI. In dismissing the appeal, this Court took no issue with the startingpoint adopted by the sentencing Judge.[19] The starting points adopted in Wong and Nguyen were heavily influenced bywhat was then rightly regarded as very significant amounts of methamphetamine thatwere involved in the offending and the roles of the defendants. Since those cases weredecided the courts have seen a number of cases involving vastly greater amounts ofmethamphetamine than was found in Wong and Nguyen and yet starting points akin toWong and Nguyen have been adopted.[20] For example, in R v Berkland Mr Berkland was sentenced in 2018 underthe Fatu guidelines.7 He was the second in charge of a sophisticated drug organisationand had obtained 15 kilograms of methamphetamine and on-sold it at a rate of aboutone kilogram per week. On appeal, this Court endorsed the 16 and a half year startingpoint adopted in that case.8 In another case, Pai v R, this Court endorsed a startingpoint of 15 years' imprisonment for a defendant who played a very similar role to Mr7 R v Berkland [2018] NZHC 1520.8 Berkland v R [2020] NZCA 150.Prasad in importing 22.6 kilograms of methamphetamine.9 Mr Pai was also sentencedunder the Fatu guidelines. In R v Le'Ca a starting point of 18 years' imprisonmentwas chosen, in light of Fatu, for possession of 14.9 kilograms of methamphetaminefor supply and a two-year uplift applied for importing 1.362 kilograms ofmethamphetamine.10 Mr Le'Ca's co-offender, Mr Uputaua was given a starting pointof 15 years' imprisonment on the possession charge, reflecting his less-central role inthe organisation, and a similar two-year uplift for importation.11[21] We accept that the methamphetamine involved in Mr Prasad's offending wassignificant, albeit much less than the amounts seen in the cases we have referred to at[20].[22] The Fatu sentencing methodology required sentencing judges to have regardto the role of the defendant in the operation and not simply assess the starting point byreference to the quantity of methamphetamine involved in the offending.[23] Mr Prasad's role can be accurately described as that of a "catcher". His taskwas to receive the methamphetamine that arrived in New Zealand. Others wereapparently responsible for the distribution of the drugs. Significantly, there is noevidence to suggest Mr Prasad was a "manager or organiser". On the contrary,Mr Prasad's financial return for his role in the operation suggests he was well belowthat of a "manager". He was to receive between $6,000 to $12,000 per delivery, whichis a low return on consignments worth somewhere between $3.9 and $7.8 million.[24] In our assessment, a consistent and correct application of the Fatumethodology should have resulted in a starting point of no more than 14 years in thiscase.Deductions[25] Judge Ronayne deducted approximately 20 per cent from the adjusted startingpoint to reflect Mr Prasad's guilty plea.9 Pai v R [2020] NZCA 146.10 R v Le'Ca [2018] NZHC 274.11 R v Uputaua [2017] NZHC 2320.[26] The guilty plea appears to have been entered early in the process. We aresatisfied Mr Prasad was entitled to close to a 25 per cent discount which, followingthis Court's judgment in Moses v R, should be deducted at the second stage ofthe sentencing analysis.12[27] No issue can be taken to the six months' deduction for Mr Prasad's lack ofprevious relevant convictions in Canada and remorse.13[28] Applying these deductions produces a sentence of 10 years' imprisonment.MPI[29] This Court reiterated in Zhang that MPIs must not be imposed as a matter ofroutine or in a mechanistic way. It is not sufficient for a Judge simply to recite s 86 ofthe Sentencing Act 2002 without more. "A reasoned analysis is required, both asregards the imposition of a minimum period of imprisonment and its length."14This Court was concerned about a perception that end sentences of nine years or moreseem to automatically trigger an MPI. The Court in Zhang warned that if there weresuch a practice then it had to cease.15[30] Consistent with many sentencing decisions which predate Zhang, we can seelittle explanation in the District Court sentencing decision as to why an MPI wasconsidered necessary in this case.[31] The factors that weigh against the imposition of an MPI in Mr Prasad's case,and which were not assessed by Judge Ronayne are:(a) Mr Prasad's age. He was 24 at the time he was sentenced.(b) Mr Prasad's lack of previous criminal offending. He has oneconviction relating to driving offending in Canada.12 Moses v R [2020] NZCA 296 at [46].13 He has one driving conviction in Canada.14 Zhang v R, above n 4, at [169].15 At [10(n)].(c) Mr Prasad's remorse. Judge Ronayne seemed to accept that a letter ofremorse written by Mr Prasad was genuine, but the Judge failed to takethis factor into account when assessing the need for an MPI.(d) The low likelihood of Mr Prasad reoffending. The pre-sentence reportsaid that Mr Prasad was "assessed as being of a low likelihood ofreoffending due to this being his first offence before the Courts in NewZealand and his apparent genuine desire not to repeat [his] mistake".[32] The Court should be hesitant to impose an MPI upon a defendant who presentswith a low likelihood of reoffending.[33] A sentence of 10 years' imprisonment without an MPI will satisfythe objectives of s 86(2) of the Sentencing Act. In particular, such a sentence will:(a) hold Mr Prasad accountable for the harm he has done tothe New Zealand community by his offending;(b) denounce his conduct;(c) deter Mr Prasad and others from similar offending; and(d) protect the community from Mr Prasad.[34] In these circumstances, we see no need for an MPI and quash the order for anMPI made in the District Court.Result[35] The application for an extension of time to appeal is granted.[36] The appeal against sentence is allowed.[37] The sentence imposed in the District Court is quashed and substituted with asentence of 10 years' imprisonment.[38] The order for an MPI made in the District Court is also quashed.Solicitors:Crown Law Office, Wellington for Respondent