Yim v R [2017] NZCA 421

Yim v R [2017] NZCA 421 [21 September 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA247/2017[2017] NZCA 421BETWEEN KA KIT YIMAppellantAND THE QUEENRespondentHearing: 30 August 2017Court: Harrison, Duffy and Williams JJCounsel: S J Bonnar QC for AppellantE J Hoskin for RespondentJudgment: 21 September 2017 at 2.15 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Harrison J)Introduction[1] The appellant, Ka Kit Yim, pleaded guilty in the High Court at Auckland to one charge of possessing a kilogram of methamphetamine for the purposes of supply. Venning J convicted and sentenced him to a term of 11 and a half years'imprisonment.1 Mr Yim appeals his sentence on the ground that it is manifestly excessive because the Judge (a) adopted a starting point which was too high;1 R v Yim [2017] NZHC 702 [Sentencing notes].(b) failed to allow an appropriate discount for good character and lack of relevant previous convictions; and (c) allowed an insufficient discount for the guilty plea.Facts[2] The relevant facts were agreed. In February 2016 the New Zealand Customs Service intercepted a consignment of 28 boxes of granite tea trays from China to New Zealand. Some 39.6 kilograms of methamphetamine were hidden inside. The police obtained an electronic surveillance warrant of a property on Auckland'sNorth Shore occupied by two recent arrivals from Taiwan, Yen Hua Chen and Tzu Te Hung, to which a controlled delivery of the consignment was undertaken. The surveillance operation led the police separately to Mr Yim. Following execution of a series of search warrants, the police found a kilogram of methamphetamine and more than $1.8 million in cash in storage units, a house and three luxury motor vehicles elsewhere in Auckland either owned by Mr Yim or under his control.[3] The Crown originally charged Mr Yim with (a) conspiring with Messrs Chen and Hung to possess for supply the 39.6 kilograms of methamphetamine consignment; and (b) separately possessing for supply the one kilogram of methamphetamine found at his property. He pleaded not guilty to both charges.[4] In December 2016 Mr Chen pleaded guilty to the conspiracy charge following a sentencing indication; he was convicted and sentenced on a starting point of 20 years' imprisonment.2 In February 2017 Mr Hung pleaded guilty and was convicted and sentenced on a starting point of 18 years.3 The respective end sentences imposed were 12 and a half years' and 13 years and nine months'imprisonment.[5] In early February 2017 also the Crown accepted Mr Yim's proposal to resolve the proceeding by entering a plea of guilty to the possession-for-supply charge in exchange for the Crown withdrawing the conspiracy charge.2 R v Chen [2016] NZHC 3037.3 R v Hung [2017] NZHC 467.High Court[6] It was common ground before Venning J that the starting point for Mr Yim'soffending fell within band four of the sentencing categories prescribed by this Court in R v Fatu; that is, within a range of from 10 years' imprisonment for possession of500 grams for supply up to life imprisonment for larger quantities.4 The Judge was satisfied that the appropriate starting point was 14 years.5 He allowed discounts of (a) six months for Mr Yim's restrictive terms of bail, electronic monitoring and a 24-hour curfew and (b) two years or 15 per cent for the guilty plea, with an end sentence of 11 and a half years' imprisonment.6 He declined to impose a minimum term of imprisonment.7[7] As noted, Mr Yim challenges the sentence on three grounds.DecisionStarting point[8] First, on Mr Yim's behalf Mr Bonnar QC, who did not appear in the High Court, submits the Judge erred in adopting a starting point of 14 years instead of no more than 12 years' imprisonment. He submits that Mr Yim's offending was of a single non-representative count of possession of one kilogram of methamphetamine for supply; there was no ongoing offending over a period of time; Mr Yim was holding the methamphetamine for others without expectation of reward; Mr Yim was not a ringleader or prime mover at the top of a substantial drug network; and, in particular, he had no involvement with the much more serious offending committed by Messrs Hung and Chen. In this respect Mr Bonnar submits thatVenning J erred in treating Messrs Hung and Chen as Mr Yim's co-offenders, and using the sentences imposed on them for comparative purposes.8[9] We disagree. Strictly speaking the Judge erred in describing Messrs Chenand Hung as Mr Yim's co-offenders given the Crown's withdrawal of the conspiracy4 R v Fatu [2006] 2 NZLR 72 (CA) at [34(d)].5 Sentencing notes, above n 1, at [14].6 At [18] and [20].7 At [22].8 See [9].charge. However, we are satisfied that a 14-year starting point was available for the discrete offending to which Mr Yim pleaded guilty. Ms Hoskin for the Crown relies on this Court's recent decision in He v R, upholding a 14-year starting point on conviction for possession of one kilogram of methamphetamine for supply.9Mr Bonnar seeks to distinguish He because the offending in that case presented a number of aggravating features which are absent here. On analysis, however, the only relevant additional aggravating feature in He was the appellant's possession of a firearm.10 It is plain that this Court was otherwise satisfied a 14-year starting point was available for the discrete offence of possessing a kilogram of methamphetamine for supply.11[10] Moreover, in He this Court did not take into account as an aggravating factorthe appellant's possession of $274,000 in cash because its existence was attributable to other offending.12 Here the police found cash of $1.8 million in three luxury vehicles owned by Mr Yim. In the High Court the Crown accepted that it had no evidence available to contradict a submission for Mr Yim, repeated by Mr Bonnar, that he was holding the methamphetamine for others.13 Mr Yim told the pre- sentence report writer that he was acting out of the goodness of his heart and without financial compensation.14[11] We cannot follow the rationale for the Crown's concession in the High Court. The submission by Mr Yim's counsel was unsupported either by evidence or theagreed summary of facts. Mr Yim had declined to make a statement to the police. In the absence of compelling evidence to the contrary, an inference is available from all the facts that Mr Yim was running his own large scale, highly profitable commercial drug dealership; and that the one kilogram of methamphetamine was a significant part of his stock in trade. While it was not apparently taken into account by Venning J, that factor reflects the degree of Mr Yim's culpability and aggravates hisoffending, and its existence confirms that the 14 year starting point was well within range.9 He v R [2017] NZCA 77.10 At [11].11 See [9] and [12].12 At [9].13 Sentencing notes, above n 1, at [13].14 At [7].Personal circumstances[12] Second, Mr Bonnar submits the Judge erred in not giving Mr Yim a five per cent discount for previous good character or lack of relevant recent convictions. He points to an error by the Judge based on the presentence report in observing that Mr Yim had "only been in New Zealand for a relatively short time".15In fact Mr Yim has lived here since July 1991 and has been a New Zealand citizen since June 1995. Mr Bonnar submits also the Judge erred in noting there is no evidence of any affirmative contribution made by Mr Yim to New Zealand society; and in taking into account his failure to provide information about the source of the funding for his lifestyle. He also points to modest discounts made for good character in the sentences imposed on Messrs Chen and Hung, despite their very recent arrival to New Zealand.16[13] We do not accept this submission. Irrespective of the Judge's error as to Mr Yim's time in this country, we are satisfied that Mr Yim was not entitled to an allowance for his personal circumstances: where a person is convicted of dealing in substantial amounts of methamphetamine for commercial profit, his or her personal circumstances carry relatively little weight due to the dominant importance of deterrence. Venning J did not err in applying that sentencing principle.17[14] Mr Bonnar's submissions also suffer from a degree of internal inconsistency. He asserts that Messrs Chen and Hung should not be treated as Mr Yim'sco-offenders for the purpose of fixing the appropriate starting point while asserting other favourable aspects of their sentences have comparative relevance. In anyevent, the factual basis for Mr Bonnar's comparative analysis is flawed. Lang J'ssentencing notes disclose that the modest allowance of six months made in Mr Hung's case was not on account of good character but rather for his genuine remorse and insight into his offending and the difficulty in serving a lengthy prison sentence as a non-citizen who does not speak English.1815 At [15].16 R v Chen, above n 2, at [24]; R v Hung, above n 3, at [3].17 See R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612.18 R v Hung, above n 3, at [6]–[7].[15] We are satisfied the Judge did not make any material error in his assessment of Mr Yim's personal circumstances as potential mitigating features.Guilty plea[16] Third, Mr Bonnar submits the Judge erred in allowing Mr Yim only a 15 per cent reduction against the starting point for his guilty plea. That discount, Mr Bonnar submits, should have been 25 per cent, being the same discount given to Messrs Chen and Hung.19 He submits that the Judge failed to consider the circumstances which had led to the guilty plea — that the conspiracy charge was the major charge faced by Mr Yim. Through his former counsel Mr Yim had entered into negotiations with the Crown in December 2016 and wrote to the Crown on 1 February 2017, suggesting there was insufficient evidence to support the conspiracy charge and offering resolution by a guilty plea to the possession for supply charge. In Mr Bonnar's submission, where the Crown alters its position in amaterial way which impacts on the seriousness of the alleged offending and the defendant's culpability, a late plea entered in consequence will still entitle adefendant to a full 25-per-cent credit.[17] However, we are not satisfied that the Judge erred in allowing 15 per cent where the plea was entered at a relatively late stage of the proceeding — a week before trial, and in the face of a strong prosecution case.20 Heta v R, the authority on which Mr Bonnar relies, does not support his argument.21 In that case the defendant admitted informally to the prosecution, and at a very early stage, the offending which formed the basis of an amended and lesser charge substituted for a more serious charge part way through trial.22 This Court was satisfied that the defendant'simmediate plea to the lesser charge should have attracted a full 25 per cent discount because she had effectively admitted her guilt from the outset.23 This is a verydifferent case. It is an example of a deal done at Mr Yim's instigation just before trial. He had never previously acknowledged his guilt.19 R v Chen, above n 2, at [24]; R v Hung, above n 3, at [3].20 Sentencing notes, above n 1, at [20].21 Heta v R [2012] NZCA 267.22 At [27]–[31].23 At [38].[18] We add that (a) when giving a sentencing indication to Mr Hung, Lang J recited that a guilty plea entered a week before trial would normally attract a 15 per cent discount but the Crown agreed to 25 per cent because Mr Hung had informally offered at an early stage to plead guilty but changes of counsel caused delays;24 (b) when sentencing Mr Chen, Fogarty J referred to the evidence of Mr Yim's participation in that offending;25 and (c) when assessing whether the sentence as a whole was manifestly excessive, we account for the benefit Mr Yim received from Venning J's deliberate decision not to follow the settled practice for major drug offending of imposing a minimum period of imprisonment.[19] Despite Mr Bonnar's careful arguments, we are not satisfied that the sentence of 11 and a half years' imprisonment imposed on Mr Yim was manifestly excessive.Result[20] The appeal is dismissed.Solicitors:McVeagh Fleming, Auckland for AppellantCrown Law Office, Wellington for Respondent24 R v Hung [2017] NZHC 222 at [14]–[15].25 R v Chen, above n 2, at [14].