KAI YIP CHEUNG v R [2021] NZCA 175

KAI YIP CHEUNG v R [2021] NZCA 175 [11 May 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA415/2020[2021] NZCA 175BETWEEN KAI YIP CHEUNGAppellantAND THE QUEENRespondentHearing: 9 March 2021Court: Kós P, Miller and Collins JJCounsel: JEL Carruthers and S J Bird for AppellantM J Lillico and T R Simpson for RespondentJudgment: 11 May 2021 at 1.00 pmJUDGMENT OF THE COURTA The application for an extension of time is granted.B The appeal is allowed in part.C The order for a minimum period of imprisonment is quashed.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] For trafficking in methamphetamine Mr Cheung was sentenced in 2017 to aterm of 15 years, five months' imprisonment with a minimum period of imprisonmentof nine years.1 He now wants to appeal his sentence.1 R v Cheung [2017] NZHC 914.[2] Because his right of appeal expired three years before he filed his papers,Mr Cheung needs the Court's permission, in the form of an extension of time. He saysthe delay is excusable and the appeal has merit: the sentence was calculated in error,the starting point of 25 years was too high, and the minimum period of imprisonmentwas unwarranted.[3] The claim that the sentence was calculated in error raises an issue about theretrospective application of the two-step sentencing methodology adopted in theCourt's 2020 decision in Moses v R.2 Mr Cheung says that Moses was an ordinaryoverruling of an earlier judgment of the Court, Hessell v R,3 and so operatesretrospectively under the declaratory theory of law. The Crown disagrees. It says thatas a guideline judgment Moses operates prospectively and it should be applied to apast sentence only when it is apparent that the sentence was materially wrong and thereare special circumstances. It opposes the extension of time in Mr Cheung's case,saying the delay is not adequately explained and the sentence was not manifestlyexcessive.Mr Cheung's sentence[4] We record that Mr Cheung was sentenced on 9 May 2017 under the applicableguideline judgment at the time, Fatu v R.4 This Court has since updatedmethamphetamine sentencing guidelines in Zhang v R, but that judgment states that itapplies to all sentencing that takes place after 21 October 2019.5 It is common groundthat Fatu applies to this case.[5] Mr Cheung was one of a group of offenders who imported very large quantitiesof methamphetamine in 2016. The offending was sophisticated and of some duration.Containers containing scaffolding were shipped to a company, Hong Jun InternationalTrading Ltd, that was set up in New Zealand for the purpose of receiving them.Methamphetamine was secreted in the containers' door-locking rods, which were2 Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381.3 Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298 [Hessell (CA)].4 R v Fatu [2006] 2 NZLR 72, (2005) 22 CRNZ 410.5 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [187].dismantled at a warehouse leased by the company. This method had been used on fouroccasions before the importation with which Mr Cheung was charged.[6] The moving force behind the operation appears to have been a Hong Kongnational, Kam Tong Lee. After he was refused entry to New Zealand in July 2015 hedelegated control of importations to Choo San Teh, who was later charged withMr Cheung. Mr Teh handled all of the paperwork required for the importation ofscaffolding and made lease payments on the warehouse, which had been leased for aterm of six years.[7] Mr Cheung arrived in New Zealand on 13 December 2015, ostensibly fora ten-day holiday. He was with another man, Cho Fai Chu, who left New Zealand on23 December 2015. Mr Cheung, who was aged 19, did not leave. He obtained astudent visa and in March 2016 he enrolled in a three-month English language course.He received three warning letters for poor attendance and did not sit any finalassessments. He remained in New Zealand after completing the course. He lateradmitted that his living expenses were funded by Mr Chu, who offered him anopportunity to make money in New Zealand. He knew this would involve drugs.[8] Hong Jun International Trading imported containers on 17 February and2 March 2016, after Mr Cheung had arrived in New Zealand, but he was not ultimatelycharged in relation to these importations.[9] On 6 July 2016, a container vessel arrived in New Zealand carrying tencontainers for the company. In total, they held 176 kg of methamphetamine. Its streetvalue was in the range $70 million to $212 million. The importation was monitored,including cellphone traffic among the offenders. A search warrant executed atMr Cheung's residential address resulted in the seizure of phones, a lease agreementfor the warehouse and a document detailing the individual parts of a container doorrod. When confronted with records, Mr Cheung admitted that he had been paid forhis work for Hong Jun International Trading. He faced one charge of importingmethamphetamine.[10] Mr Cheung maintained that he intended to study English and initially believedhis role would be only short-term. He claimed he had told Mr Chu he no longer wantedto be involved once he realised his role would be lengthier. He tendered referencesfrom family and others who deposed to his good character.[11] The Judge reviewed the facts, noting that Mr Cheung had said he wanted tomake some "fast and easy money".6 Mr Cheung had not come to New Zealand tostudy English; his priorities were elsewhere. The Judge made it clear that he wouldnot take the previous importations into account, however. Mr Cheung had beencharged in relation only to the 176 kg imported in July 2016. That was a staggeringquantity, qualifying as one of the largest seizures in this country. He noted themaximum sentence, life imprisonment, but said he would not adopt it having regardto Mr Cheung's age, lack of previous convictions, guilty plea and "supporting ratherthan managerial role".7[12] The Judge did not accept a submission that Mr Cheung's role was analogousto that of a catcher or mule. The operation was set up by others, but Mr Cheungassisted in the importation and extracted the drugs from the containers. His job was"to follow orders and do the risky work".8[13] A starting point of 25 years was adopted, the Judge citing two comparablecases, Chen v R9 and R v Chan.10 He remarked that for those further up the chaina considerably higher starting point, perhaps life imprisonment, would be realistic.He allowed a three-year discount for youth and prospects of rehabilitation anda discrete discount of five per cent for other matters. He also allowed a full guilty pleadiscount of 25 per cent. Mr Cheung was charged on 5 October 2016 and entered aguilty plea on 29 March 2017, but Moore J accepted that there had been a change ofcounsel and some communication difficulties. The resulting sentence was 15 yearsand five months' imprisonment.6 R v Cheung, above n 1, at [5].7 At [17].8 At [25].9 Chen v R [2009] NZCA 445, [2010] 2 NZLR 158.10 R v Chan [2016] NZHC 2376 [R v Chan (HC)].[14] The Judge also imposed a minimum period of imprisonment of about60 per cent or nine years. He found that necessary to reflect harm done and the needfor denunciation and deterrence. He cited Zhou v R for the proposition that thestatutory minimum period of one-third will usually not suffice to meet the sentencingpurposes in s 86(2) of the Sentencing Act 2002.11Submissions on retrospectivity and extension of time[15] Mr Carruthers, for Mr Cheung, submitted that judicial decisions ordinarilyhave both retrospective and prospective effect. Sentencing guideline judgments differin that they are usually expressed to apply from a particular date, giving them limitedretrospective effect. Their retrospective application is limited because they reflectevolution in sentencing policy and practice. But Moses is not a guideline judgment;rather, it established that sentences imposed using the three-step methodology werewrong in principle. Accordingly, it is an ordinary overruling which, on the declaratorytheory of law, applies retrospectively. This does not mean that all sentences imposedunder the three-step methodology were miscalculated, in the sense that but for themethodology the judge would have imposed a lesser sentence. Nor does it mean thatthose sentences were manifestly excessive. It means rather that an appellate courtshould apply the two-step methodology when considering appeals against sentence,whenever the offending and sentencing occurred. Further, the appellate court shouldtake change in law into account when considering applications for an extension oftime. Floodgates considerations are unlikely to arise, and in any event they shouldyield where the liberty of the subject is at stake.[16] Mr Lillico, for the Crown, emphasised that jurisdiction to overturn a sentenceon appeal is governed by the Criminal Procedure Act 2011, which provides that asentence may be overturned only where an error is found and the appellate court issatisfied that a different sentence should be imposed. It is ordinarily necessary to showthat the sentence was manifestly excessive or inadequate.12 Moses does not alter thissettled approach to sentence appeals. And as the Court noted there, the three-stepmethodology will seldom result in a manifestly excessive sentence when the outcome11 At [32], citing Zhou v R [2009] NZCA 365 at [18]–[19].12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].is compared to the two-step methodology.13 Nor should the outcome be characterisedas a calculation error, or error of principle, since the methodology is merely a guideintended to achieve transparency and consistency in sentencing. Moses did not changethat. In any given case the sentencing judge ought to have stood back and inquiredwhether the sentence was just having regard to applicable sentencing purposes,principles and factors. This Court has made it clear that it will not interfere with thesentence merely because a sentencing judge used the three-step methodology.14[17] Mr Lillico further submitted that Moses should not automatically be applied onappeal to sentences imposed before its release because it is a guideline judgmentconcerned with sentencing methodology.15 Guideline judgments differ from otherjudgements; they assist trial judges in the exercise of discretion but do not override it.Their primary function is to promote consistency in sentencing levels nationwide, asthe Sentencing Act requires.16 That means they are inherently future-focused. Heaccepted that Moses may be applied retrospectively where "material error" is apparent.Moses is a guideline judgment[18] The judgments of this Court and the Supreme Court in Hessell v R resulted ina three-step methodology for sentencings by a guilty plea discount.17 At the first step,the sentencing court chose a starting point based on the aggravating and mitigatingfeatures of the offence; at the second it adjusted the starting point for aggravating andmitigating circumstances of the offender; and at the third it allowed a guilty pleadiscount of up to 25 per cent of the sentence that would otherwise have been imposedat step two.[19] In Moses, this Court explained the distinction between remorse and guilty pleadiscounts18 and abandoned the Hessell methodology.19 The Court adopted a two-step13 Moses v R, above n 2, at [33].14 Moheebi v R [2020] NZCA 343 at [35]; Roberts v R [2020] NZCA 441 at [53]–[54]; and Smith v R[2020] NZCA 586 at [37]–[38].15 Moses v R, above n 2, at [49].16 Sentencing Act 2002, s 8(e).17 Hessell (CA), above n 3, at [14]–[15]; and Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607[Hessell (SC)] at [73].18 Moses v R, above n 2, at [21]–[26].19 At [46].methodology in which all uplifts and discounts, including the guilty plea discount, arebased on the starting point at step one.20 This was done because the three-step sentencecalculation could materially reduce the size of the guilty plea discount for offenderswho also received substantial discounts for other personal mitigating factors.We found that result an unforeseen and unwarranted consequence of the three-stepmethodology.[20] It did not follow that sentences using the three-step methodology were wrong.The sentencing judge fixes the starting point and any uplifts and discounts in anevaluative way by reference to sentencing purposes, principles and factors found inthe Sentencing Act. The sentence is imposed after standing back and asking whetherit is just. The three-step methodology, like the two-step one that replaced it, structuredthe sentencing analysis in pursuit of consistency and transparency. The only concretelimit imposed was the 25 per cent cap on a guilty plea discount. The change ofmethodology was limited to calculation of the guilty pleas discount, albeit the mostcommon and usually the largest. It is only when a guilty plea discount is combinedwith other substantial discounts that the methodology is liable to produce a materiallydifferent outcome, as the facts of Moses itself demonstrate.21 And on appeal, thequestion is not whether a given methodology was followed but whether the endsentence was manifestly excessive.[21] It is true, as Mr Carruthers submitted, that Moses corrected a problem inherentin the Hessell methodology. It differs from other guideline judgments, such as Zhang,in which the Court adjusts starting points, discounts and methodology to reflectexperience and changing policy or circumstances. We return to this point at [38]below. Nonetheless, Moses is a guideline judgment and so describes itself.22It concerns evolving sentencing methodology, including the distinction betweenremorse and guilty plea discounts, and it shares the objective, common to all guidelinejudgments, of promoting transparency of analysis and principled consistency ofoutcome, so furthering objectives of the Sentencing Act.2320 At [46].21 At [58].22 At [49].23 At [49].Retrospectivity generally[22] With rare exceptions, statutes always operate prospectively, but judge-madelaw is generally both prospective and retrospective. Retrospectivity was traditionallyjustified under the declaratory theory of law, which holds that judges do not make lawbut only discover what was always there to be found.24 It is now uncontroversial thatjudges do make law, or, at the very least, as Tipping J put it in Lai v Chamberlains,they decide what the law was when the facts giving rise to the litigation took place.25[23] In Lai, the Supreme Court recognised that there may be circumstances in whicha court could overrule past decisions with prospective-only effect.26 Mr Lillico arguedthat Tipping J envisaged that the Supreme Court alone might do so.27 Tipping J madethat comment when noting that the retrospective effect of a judgment should only belimited where the judgment being overturned could fairly be regarded as settling thelaw on that point.28 In any event, no final appellate court judgment precludes thisCourt from limiting retrospectivity in an appropriate case that does not concernbarristerial immunity from suit,29 and as we explain below this Court has long done sowhen addressing sentencing practice.[24] As Tipping J remarked, retrospectivity is better understood when described aslimiting the retrospective effect of judicial decisions.30 He explained that:[135] A proper approach to this topic requires an appreciation of the realitiesof the role of the courts in our judicial system. Judges make law. They alwayshave done: hence the expression "judge-made law". The total body of lawunder which we live comprises law made by Parliament and law made by thejudges. Parliament changes the law from time to time and so do the judges. The present issue concerns whether and how judicial changes to the lawcan be managed so as to avoid or at least mitigate, when necessary, thedifficulties which arise from the retrospective effect of such changes.24 See the discussion in Chief Executive of the Department of Corrections v Gardiner [2017] NZCA608 [2018] 2 NZLR 712 at [11]–[13] and Taylor v R [2018] NZCA 498, [2019] 2 NZLR 38 at [4].25 Lai v Chamberlains [2006] NZSC 70, [2007] 2 NZLR 7 at [130].26 At [142]–[147] per Tipping J and at [205] per Thomas J. The majority preferred to make nocomment: see at [95].27 At [142] and [147].28 At [143].29 Lai v Chamberlains, above n 25, at [95] per Elias CJ, Gault and Keith JJ, [142]–[147] per TippingJ and at [205] per Thomas J.30 At [134].[25] We cite that passage to make two points: a decision to limit retrospectiveapplication may be affected by something Parliament has done, and a court's decisionwill be informed by any need to mitigate difficulties that retrospective applicationmight cause.Statutory provision for sentence appeals[26] We turn to the statutory framework for sentence appeals. We note that theCriminal Procedure Act is itself partly retrospective, in that it may apply to conductpredating its enactment. Its provisions generally apply to any criminal proceedingbegun after the commencement date, regardless of when the offending behaviouroccurred.31 The legislature has evidently chosen to follow the traditional common lawrule that prospective defendants "do not have a vested right to any particular procedureand there will generally be nothing unfair in applying whatever procedure is in forcewhen the case comes to court".32 What matters is that their substantive rights andobligations are fixed by reference to the law as it stood at the time.33[27] Sentence appeals are provided for in sub-pt 4 of pt6 of the Act. Section 244(1)creates a right of appeal against sentence:34244 Convicted person's right of appeal against sentence(1) A person convicted of an offence may appeal under this subpart to thefirst appeal court against the sentence imposed for that offence, unlessthe sentence is one fixed by law.[28] Section 248 prescribes how a first appeal is to be commenced (by filing a noticeof appeal in the appropriate court) and imposes a time limit:248 How to commence first appeal31 Criminal Procedure Act 2011, ss 398. Proceedings begun before commencement date werecompleted under the former law: s 397.32 Humphreys v Attorney-General of Antigua and Barbuda [2008] UKPC 61, [2009] 4 LRC 405at [4]. The Act provides in ss 397 and 398 that proceedings commenced under former law and notfinally determined are to be decided under the former law, but unless otherwise specifiedproceedings begun after the Act's commencement date are to be dealt with under las as it is afterthat date.33 Maxwell v Murphy (1957) 96 CLR 261 at 267 per Dixon CJ.34 Section 246 creates a right of appeal for a prosecutor. It is subject to the time limit for filing setout in s 248.(2) A notice of appeal or notice of application for leave to appeal must befiled within 20 working days after the date of the sentence appealedagainst.[29] The section also gives the court appealed to a discretion to extend time forfiling an appeal:(4) The first appeal court may, at any time, extend the time allowed forfiling—(a) a notice of appeal or notice of application for leave to appeal;[30] It will be seen that if not exercised in time the right to appeal against sentenceis lost, but the appellate court is given a discretion, on its face unrestricted, to extendtime for filing. We address at [50] below what the authorities have to say aboutexercise of the discretion.[31] There is one right of appeal. Once exercised it is spent.35 Nothing in thelegislation authorises a court to revisit sentences because of a subsequent change insentencing policy or practice, or indeed a change in legislation.36 This is equally trueof conviction appeals, even where a subsequent change in the law would have led tothe defendant's acquittal, as happened in R v Knight.37 In such a case the only remedyprovided for in legislation is an application for exercise of the prerogative of mercy.38As we go on to explain, this is a significant consideration when consideringapplications for extension of time founded on a subsequent change in the law; thosewho did appeal in time have no further recourse to the courts.[32] As a Full Court held in Knight, the policy underlying the time limit is that offinality in litigation.39 The statutory regime reflects a balance between public andprivate interest. That balance reflects the interests not only of appellants but also ofothers involved in their cases, including victims. It also gives effect to a legislative35 Appeals from the appellate court's decision to a second appeal court are by leave.36 Unless of course the legislation itself provides for resentencing, as has been foreshadowed withcurrent proposals to repeal the three strikes regime.37 R v Knight [1998] 1 NZLR 583 (CA).38 Letters Patent Constituting the Office of the Governor-General of New Zealand 1983, cl 11; andCriminal Cases Review Commission Act 2019, ss 28–30.39 R v Knight, above n 37, at 587.policy decision about the resources the community should devote to error correction.Judicial decisions on the topic of finality in litigation also identify the difficulty,sometimes impossibility, of rehearing cases long after the event.40 Of course proof ofguilt is not in issue in sentencing cases, but they may pose difficulties to the extentthat they require courts to recognise sentencing practices and mores of an earlier era.41[33] Consistent with the legislative policy of finality, the Court held in Knight that"the starting point must be the principle that a conviction obtained according to law asit was then understood and applied should stand."42 That must be all the more true ofa sentence appeal, in which the offender's guilt is not in dispute.[34] An appellate court does possess power to recall a decision made in its criminaljurisdiction.43 We mention it here because it is an incident of the court's statutoryjurisdiction, necessary to maintain its character as a court of justice,44 and if availableit would place those whose appeal rights have already been exercised in a similarposition to those who did not appeal and now seek to do so out of time. However, therecall jurisdiction is most unlikely to be available to reopen a sentence appeal wherethere has been a change in sentencing law or practice, for several reasons.[35] First, as this Court held in R v Smith, recourse to the power of recall must notundermine the principle of finality.45 The Supreme Court has since held, in Uhrle v R,that, contrary to the view of this Court, Smith did not restrict recall to proceduralerror.46 But the jurisdiction remains exceptional and the principle of finality continuesto apply.47 As we have just observed, it is embedded in the legislation.40 See the discussion in CT v R [2014] NZSC 155, [2015] 1 NZLR 465 at [13]–[16], citing R v Jacobi[2012] SASCFC 115, [2012] 114 SASR 227 at [104].41 The issue was discussed in connection with sentencing for historic sexual offending in R v Accused(CA463/97) (1998) 15 CRNZ 602 (CA) at 609.42 R v Knight, above n 37, at 588–589.43 Uhrle v R [2020] NZSC 62 at [15]–[17].44 R v Smith [2003] 3 NZLR 617 (CA) at [36], referring to DJL v Central Authority [2000] HCA 17,(2000) 201 CLR 226 at [92]–[94]; and Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB 528at [54]–[57].45 R v Smith, above n 44, at [36].46 Uhrle v R, above n 43, at [26]–[27].47 Lyon v R [2020] NZCA 430 at [19]–[20] and [27].[36] Second, an applicant for recall must show that the court's previous decisionhas occasioned a substantial injustice.48 A change of law cannot ordinarily have thateffect. As noted above, a past decision is correct if it was reached pursuant to lawapplicable at the time.49[37] Third, a practice of reopening appeals (or for that matter, granting extensionsof time) because of a subsequent change in law or practice would affect a great manypast decisions and so affect the administration of justice, requiring either that othercases be delayed or that the state devote additional resources to the courts.50 This is apolicy consideration, but it is properly derived from the legislation which, as noted,affords only one right of appeal and requires that it be exercised in time.Guideline judgments have limited retrospective effect[38] This Court ordinarily specifies in a guideline judgement that the guidelines areto apply to sentences imposed after a given date.51 So, for example, in R v AM(CA27/2009) the Court stated that:52The new guideline should be applied to all sentencing taking place after31 March 2010. That was the approach this court took in Taueki and inHessell.(footnotes omitted).[39] And in Zhang v R the Court stated that:53This judgment is to be issued on 21 October 2019. It applies to all sentencingthat takes place after that date regardless of when the offending took place.[40] It will be seen that sentencing guideline judgments do apply to past conductunless it has been the subject of a criminal proceeding that ended in a sentence passedbefore the guideline took effect. To that extent they are retrospective. They do not48 At [27], citing Taylor v Lawrence, above n 44, at [55]; R (Bancoult) v Secretary of State forForeign and Commonwealth Affairs (No 4) [2016] UKSC 35, [2017] AC 300 at [6] and [156]; andR v Smith, above n 44, at [35].49 Taylor v R, above n 24, at [4].50 The Ampthill Peerage [1977] AC 547 (HL) at 576.51 See for example Zhang v R, above n 5, at [187]; R v AM (CA27/2009) [2010] NZCA 114, [2010]2 NZLR 750 at [125]–[127]; R v Fatu, above n 4, at [44]; R v Mako [2000] 2 NZLR 170 (CA) at[21]; and R v Taueki [2005] 3 NZLR 372 at [60] and [62].52 R v AM (CA27/2009), above n 51, at [125].53 Zhang v R, above n 5, at [187].apply, however, to most sentences that were imposed in the past. To that extent theyare prospective.[41] The retrospective application of guideline judgments to past conduct that hasnot yet resulted in a sentence ought to be uncontroversial, for several reasons.[42] First, guideline judgments do not vary the penalty for the offence, which isfixed by statute. It is settled law that the "penalty" means the maximum (or mandatoryminimum), not the actual penalty that might be imposed on a given offender sentencedon a given date.54 Accordingly, guideline judgments do not engage the (identicallyworded) language of s 25(g) of the New Zealand Bill of Rights Act 1990 and s 6 ofthe Sentencing Act.[43] Second, there is no statutory or common law right to the benefit of a particularmethodology or guideline.[44] Third, a sentencing guideline judgment often affects substance (for example,by banding starting points) as well as process, but the substance/process distinctionordinarily matters only because a substantive change in the law introduces aninterpretive presumption against retrospective application of legislation. Sentencingguidelines are judge-made law, and as explained above judge-made law is normallyretrospective.55 The real question is whether retrospectivity operates unfairly.[45] Fourth, retrospective application of sentencing guidelines is not ordinarilyunfair. As just explained, guidelines reflect evolving sentencing practice and are notintended to be prescriptive. Judges are expected to sentence by reference to theapplicable statutory sentencing purposes, principles and factors. Guidelines invariablymake that point and specify that judges may depart from the guidelines when necessaryto fix a just sentence in a given case.54 Davies v R [2011] NZCA 546, [2012] 1 NZLR 364 at [55]–[57]; Morgan v Superintendent,Rimatuka Prison [2005] NZSC 26, [2005] 3 NZLR 1 at [29]–[31] per Gault J, [57] and [77] perBlanchard J, [86]–[87] per Tipping J and [112]–[113] per Henry J; and R v Mist [2005] NZSC 77,[2006] 3 NZLR 145.55 Chamberlains v Lai, above n 25, at [130]–[131].[46] The prospective-only application of a guideline judgment to sentences thathave already been passed at the date of the judgment ought also to be uncontroversial,for it reflects the scheme of the Criminal Procedure Act. As we have alreadyexplained, the legislation adopts the principle of finality and makes no provision forreopening past sentences.[47] Accordingly, as this Court explained in Zhang:56[188] The approach that has consistently been taken by this Court inprevious guideline judgments is that the judgment only applies to sentencesthat have already been imposed, if and only if two conditions are satisfied:(a) that an appeal against the sentence has been filed before the date thejudgment is delivered; and (b) the application of the judgment would resultin a more favourable outcome to the appellant.(Footnote omitted.)It is because the Court limited the reach of its judgment in that way that Mr Cheungmust rely on Fatu. He could invoke Zhang only if he had filed an appeal before21 October 2019.[48] Should Moses be treated differently? Generally, the answer is no. It will beapparent from what we have said that an offender is entitled to have Moses applied topast conduct that resulted in a sentence delivered at first instance after its date of issue,15 July 2020. The Court applies Moses where an appeal was pending at that date.57The Court does not ordinarily apply Moses where an offender had been sentencedbefore 15 July 2020 and an appeal was not pending at that date. When the Court findsthe sentence in such a case manifestly excessive for other reasons, however, it mayuse the two-step methodology when substituting another sentence.5856 Zhang v R, above n 5.57 See for example Clark v R [2020] NZCA 641 at [26] (filed 21 May 2020); Moheebi v R, aboven 14, at [35] (filed 22 August 2018); Gray v R [2020] NZCA 548 at [31] (filed 9 June 2020);Waho v R [2020] NZCA 526 at [33] (filed 24 March 2020); Wikohika v R [2020] NZCA 352at [33] (filed 13 February 2019); Chan v R [2020] NZCA 486 at [28] (filed 8 November 2019);Prasad v R [2020] NZCA 483 at [26] (filed 5 March 2020); Hayden v R [2020] NZCA 369 at [57](filed 29 May 2020); Carr v R [2020] NZCA 357 at [73] (filed 10 October 2019); Martin v R[2020] NZCA 318 at [35] (filed 22 October 2019); and Pearson v R [2020] NZCA 573 at [34](filed 9 June 2020).58 Keenan v R [2021] NZCA 118; and Wira v R [2021] NZCA 98.[49] For all of these reasons an appellant who was sentenced before 15 July 2020but whose appeal was not pending at that date ordinarily will be unable to show thatthe sentence was manifestly excessive merely because the three-step methodology wasused. Such cases usually require an extension of time, to which we now turn.The discretion to extend time for filing an appeal[50] That brings us to the criteria for an extension of time. In R v Lee, this Courtdescribed an extension as an "indulgence",59 meaning the Court is under no obligationto permit it. But of course the discretion must be exercised in a principled way. Thoseprinciples were discussed in the Full Court decisions in Knight60 and Lee.61[51] As explained at [32] above, the Court held in those decisions that a balancemust be struck between public and private interests, each of which may cut two ways.The public interest favours finality,62 but also the maintenance of confidence in theadministration of justice.63 The appellant's interest strongly favours an extension,especially where the conviction is in issue or liberty is at stake, but the interests ofothers involved in the case may strongly favour finality.64 This Court held in Knightthat:65 the starting point must be the principle that a conviction obtained accordingto law as it was then understood and applied should stand. Leave to appealout of time on the ground that there has been a restatement of the applicablelaw should be granted only where special circumstances can be shown tojustify a departure from the principle of finality. The applicant mustdemonstrate some special feature or features particular to the case that lead tothe conclusion that in all the circumstances justice requires that leave be given.Amongst the considerations which will also be relevant in that overallassessment are the strength of the proposed appeal and the practical utility ofthe remedy sought, the length of the delay and the reasons for delay, the extentof the impact on others similarly affected and on the administration of justice,that is floodgates considerations, and the absence of prejudice to the Crown.59 R v Lee [2006] 3 NZLR 42 (CA) at [102].60 R v Knight, above n 37, at 587–589.61 R v Lee, above n 59, at [102]–[107].62 R v Knight, above n 37, at 587; R v Lee, above n 59, at [98] and [102]–[103]; Lyon v R, above n47, at [23]–[24], citing The Ampthill Peerage, above n 50, at 576; Uhrle v R, above n 43, at [28];and Smith v R, above n 44, at [36].63 R v Knight, above n 37, at 589; R v Lee, above n 59, at [102]; Lyon v R, above n 47, at [33]; andR v Smith, above n 44, at [36].64 R v Knight, above n 37, at 58765 At 588–589.[52] Endorsing that approach, this Court held in Lee that:66[102] Given that the Knight test has stood unchallenged since 1997 and thatit accords with the approach in comparable jurisdictions, we do not considerthat we should revisit it. Indeed, we see no basis for doing so. The balancingapproach set out in Knight, where all the competing interests are taken intoaccount, appears to us manifestly to be the correct one. There is an appeal asof right in criminal cases if the appeal is filed within the prescribed 28-dayperiod. After that period, whether or not a convicted person can appealdepends on whether an extension is granted. A person making an applicationfor an extension of the 28-day limit is seeking an indulgence from the Court.The statute provides no guarantee that it will be granted. it cannot havebeen intended that those seeking to appeal out of time should be in exactly thesame position as those appealing within time, no matter how long out of time,no matter what the reasons for the delay and no matter what the effect may beon any victims or on the due administration of justice.[53] Accordingly, it is necessary but not sufficient for an appellant to show thatan appeal has merit, and when considering merit the court's starting point is thata conviction or sentence should stand if it was correct according to law at the time.All relevant considerations must be balanced, including the applicant's explanation fordelay. Long delay is a major factor counting against an applicant and ordinarilydecisive if unexplained.67 The case for an extension requires evidence of specialcircumstances.[54] We turn to the application for extension of time in this case. Someconsiderations, such as the interests of victims or witnesses or difficulty of retryingthe case, do not arise here. Counsel focused on the length of delay and reasons for it,and the merits of the appeal.Accounting for Mr Cheung's delay[55] Mr Cheung was sentenced on 9 May 2017 and filed his appeal on 29 July 2020.He has sworn an affidavit to explain his delay. He says he did not take advice from,or even see, his then lawyer after sentencing, despite attempts to do so. His Englishremains very poor and for the first 18 months he was held in Northland, where he didnot have contact with other Chinese-speaking (he is from Hong Kong so we assume66 R v Lee, above n 59. We also note that Lee extended the test set out in Knight to apply to extensionsof time in criminal cases generally, not just in situations where the appeal was based on a changein law: at [104]. See also Taylor v R [2020] NZCA 584 at [10].67 R v Lee, above n 59, at [115].he means Cantonese) prisoners. He says that after being transferred to South AucklandCorrectional Facility he was placed in a unit where he was assisted by a Chineseprisoner who was in a similar situation but had better English. That prisoner contactedcounsel for him. As Mr Lillico submits, there is reason for scepticism about thisaccount. It is not clear why Mr Cheung's family and contacts outside New Zealandwere unable to assist him. He enjoys their support. And there is no adequateexplanation for the 20 months' delay after being moved to South Auckland.[56] It is a noteworthy feature of this case that the judgment in Moses was deliveredon 15 July 2020, mere days before the notice of appeal was filed. The notice wasevidently filed with legal assistance from counsel, Ms Sellars QC. (We should makeit clear that she was not his counsel at sentencing.) However, Mr Cheung does not saythat he appealed because Moses supplied a ground of appeal of which he hadpreviously been in ignorance. His account, as noted, is that he had no assistance andno understanding of appeal rights. He says his sentence was too long in any event,and the MPI unwarranted. This is not a case, then, in which a change in the law is saidto excuse delay. (If it were, any delay following delivery of the judgment in Moseswould be very relevant.) The starting point and MPI were orthodox and obviousgrounds of appeal.[57] We are prepared to assume that linguistic and cultural difficulties explain thedelay until Mr Cheung was transferred to a prison in which he had access to otherCantonese-speaking inmates in similar circumstances. That leaves a delay of20 months, a substantial period that is inadequately explained.Merits of the appealThe starting point[58] Mr Carruthers submitted that the 25-year starting point sits uneasily with otherauthorities under Fatu and does not adequately reflect Mr Cheung's role. Neither ofthe two cases relied on by the Judge, Chen and Chan, provided support for the startingpoint. In Chen one of the offenders, Mr Deng, assisted in the importation of 96 kg ofmethamphetamine and 154 kg of pseudoephedrine.68 His was a high-level role and hewas aware of the scale of the operation. The starting point in his case was increasedto 25 years on appeal.69 Mr Carruthers submitted that it is true that Mr Cheung alsohandled the drugs, but that was the extent of the similarity. Mr Cheung's position wasrelatively low in the hierarchy; he was not a conduit for instructions from the leaders,did not communicate with foreign suppliers and was not shown to have detailedknowledge of the operation.[59] Mr Carruthers submitted that Mr Cheung's role was more akin to Chan v R,where a starting point lower than 25 years was eventually imposed: a 20-year startingpoint was adopted on appeal for Mr Chan's role in importing approximately 80 kg ofmethamphetamine in total.70 Like Mr Cheung, Mr Chan was recruited at the age of 21to aid in the importation and distribution, travelling to New Zealand for that purposeand assisting in a very similar manner.[60] Mr Lillico responded that the differences cited by Mr Carruthers were notmaterial and the starting point was well justified. The Judge correctly noted that thequantity was staggering. Mr Cheung must have known that he was handlingsignificant quantities of methamphetamine, since he extracted it from the doors of theshipping containers. He was responsible for looking after the warehouse and dealingwith containers. He was involved in implementing a CCTV system, fumigating thecontainers, selling used ones and cleaning and subleasing the warehouse. He also hadcontact with criminals based overseas. The length of time during which Mr Cheungoffended distinguishes him from Mr Deng; he arrived in New Zealand inDecember 2015 and was paid for his services from April until August 2016.[61] We agree with counsel that Chan and Chen are the only comparable authorities.Mr Chan performed simple tasks under instructions. These included unloading andstoring the drugs. He was not young but he had a gambling addiction. His role was a68 Chen v R, above n 9, at [191]–[202].69 At [203].70 Chan v R [2018] NZCA 148 at [27] [Chan v R (CA)]. Mr Chan's appeal had not been heard at thetime of Mr Cheung's sentencing. The Judge referred only to the initial sentencing: R v Chan(HC), above n 10. The sentencing Judge added three years for totality but on appeal this Courtreduced the starting point to 20 years to reflect the appellant's lesser role compared to hisco-offenders.little more involved than Mr Cheung's but the quantity, something over 80 kg, was farless. This suggests that a starting point materially higher than the 20 years imposed inthat case is appropriate here.[62] A number of offenders were sentenced in Chen in connection with multipleconsignments totalling 96 kg of methamphetamine and 154 kg of its precursorsubstance, pseudoephedrine. The lead offenders were held on appeal to have meritedstarting points of life imprisonment on the lead offence of importing 96 kg ofmethamphetamine alone. Lesser offenders, Messrs Deng, Fan and Fung, playedoperational and non-managerial roles, setting up arrangements to receive theshipments and actually handling them on arrival. Each received a 25-year startingpoint on appeal to this Court for their involvement in one shipment of 96 kg ofmethamphetamine.[63] As has been said on many occasions, other cases should not determine thestarting point. They are used as a cross-check. We consider that the starting point wasat the upper end of the range available to the Judge under Fatu (and we add thatZhang, generally speaking, did not reduce starting points for those playing asubstantial role in large-scale commercial drug dealing).71 He falls well within band 4of Fatu, which established starting points of 12 years to life imprisonment forquantities exceeding 500 g. Mr Cheung was a full participant in a massive importationof methamphetamine, substantially larger than that for which Mr Chan was sentenced.He handled the drugs and cannot claim to have been unaware of the quantity.He plainly came to New Zealand to assume responsibility for running a substantialand apparently legitimate warehouse operation which was intended to continueindefinitely, and he was involved for a substantial period of time. His role was on anyview significant and he was well aware of what he was doing. His objective was tomake money. Youth and naivety might go some way to explain involvement in a one-off transaction, but Mr Cheung had ample time to think better of it before the Julyimportation that led to his arrest.[64] We would not grant an extension of time to appeal on this ground.71 Zhang v R, above n 5, at [11].The guilty plea discount[65] We adopt Mr Lillico's helpful table showing Moore J's sentence calculationalongside the Moses methodology:Moore J's sentencing approach The approach under Moses25 years starting point 25 years starting point3 year discount for youth (or 12%)22 years42% discount for youth plus guiltypleas plus other matters14 years 6 months finalsentence5% for other matters (or 1 year 1month)20 years 11 months25% discount for guilty plea (or 5years 3 months)15 years 8 months final apparentfinal sentence15 years 5 months final sentenceactually imposedThe sentence actually imposed was 15 years and five months, which is three monthsless than a mechanical application of the three-step methodology would produce.The difference between the actual sentence and the product of the two-stepmethodology is 11 months.[66] Mr Carruthers argued that the difference of 11 months is sufficient to make thesentence manifestly unjust. Mr Lillico contended that the difference is less than fourper cent of the starting point and hence immaterial.[67] We would not grant an extension of time to appeal on this ground. Asexplained above, Moses does not govern appeals brought after 15 July 2020.The guilty plea discount was correctly calculated on the law as it stood at the time. Inany event, this is not a case where the Judge allowed the three-stage calculation todictate the final sentence. Moore J did not specify that he arrived at the end sentenceby standing back and enquiring whether it was just in all the circumstances, but thethree-month difference between the calculation and the eventual end sentence suggeststhat he did. The methodological difference is small. Nor do the interests of justicecompel an extension. The Judge reluctantly gave a discount of five per cent for othermatters. We have reviewed his reasons for doing so and agree with him that thediscount was generous. In the final analysis, we do not think it sufficiently arguablethat a sentence of 15 years five months' imprisonment is manifestly excessive forsomeone in Mr Cheung's circumstances who played a significant role in majorcommercial drug dealing.The MPI[68] The Judge gave brief reasons for imposing a minimum period of imprisonmentof nine years (a little less than 60 per cent):72[32] The Crown seeks a MPI near the statutory maximum of 10 years'imprisonment. In support, it refers to a case of R v Zhou where the Court ofAppeal observed that in cases of large-scale methamphetamine offending, thegeneral convention of imposing a MPI of one third under the Parole Act 2002will usually be insufficient to meet the statutory purposes of sentencingidentified in s 86(2) of the Sentencing Act 2002. Relevantly, these purposes,as I have already touched on, are to hold you accountable for the harm doneto the community, to denounce your conduct and to deter others.[33] I have examined the MPIs imposed in the cases I have discussedalready. Mr Deng received the statutory maximum of 10 years. Mr Chanreceived a MPI of seven years and eight months (or 40 per cent of the finitesentence). In my view, given the scale of the importation a MPI of 60 per centis required to meet the sentencing purposes I have just identified. Thistranslates to a MPI of nine years' imprisonment. I have decided againstimposing the statutory maximum to reflect your youth and your prospects forrehabilitation.(Footnotes omitted.)[69] Mr Carruthers noted that this Court subsequently quashed the minimum periodthat was imposed at first instance in Chan and relied on by Moore J.73 Counsel pointedout that Mr Cheung was three years younger when he committed the offence thanMr Chan had been. He also cited Fangupo v R, in which a youthful offender with72 R v Cheung, above n 1.73 Chan v R (CA), above n 70, at [39].good prospects for rehabilitation received a minimum period of 40 per cent of the endsentence.74[70] Mr Lillico submitted that an MPI was appropriate but was prepared to acceptthat in all the circumstances it may have been too high.[71] At the time of Mr Cheung's sentencing, minimum periods were imposed whensentencing those who engage in large-scale drug offending for commercial reasons.Such offending was (and remains) likely to engage the qualifying purposes in s 86 ofthe Sentencing Act, as the Court explained in Zhou v R.75 But, as the Court also heldin that case, minimum periods must not be imposed more or less automatically.76Rather, the s 86 purposes must always be considered, and adequate reasons given.In Gordon v R the Court confirmed that when turning to a minimum period,a sentencing judge must reconsider the sentencing principles in ss 7, 8 and 9.77 And inChan the Court held that:78[39] Whilst minimum periods of imprisonment will frequently be justifiedin cases of drug importation on a commercial scale, the imposition of aminimum period of imprisonment remains a matter that is to be determinedcase by case. We do not consider that a minimum period of imprisonment wasnecessary in this case to meet any of the purposes of s 86(2) of the SentencingAct 2002. A sentence of the length imposed on one so young is sufficient foreach of those purposes.[72] We agree that having regard to the length of the sentence and Mr Cheung'syouth, prospects of rehabilitation and personal circumstances (distance from familyand poor English), a minimum period was not required in this case. The differencebetween the statutory minimum period of one third and the minimum period imposed— more than four years' time served — is plainly substantial.74 Fangupo v R [2020] NZCA 484 at [64]. We note that this case is from 2020 and is thus likelyinfluenced by Zhang v R, above n 5, which is not applicable to this case.75 Zhou v R, above n 11, at [19].76 At [18]–[20].77 R v Gordon [2009] NZCA 145 at [48].78 Chan v R (CA), above n 70.The balancing exercise[73] We are satisfied that an extension of time should be granted. The period of20 months inadequately-explained delay would likely preclude an extension of timein other cases. But we find that a minimum period of imprisonment was not requiredin this case and the very substantial difference between the statutory minimum period(one third of the sentence) and the minimum period imposed is a special circumstancejustifying an extension in the circumstances. We quash Mr Cheung's MPI for thereasons set out at [72].Result[74] We extend time for filing the appeal, and the appeal is allowed in part.[75] The minimum period of imprisonment is quashed. The determinate sentenceof 15 years and five months' imprisonment remains.Solicitors:Crown Law Office, Wellington for Respondent