KEINO v R [2019] NZCA 457

KEINO v R [2019] NZCA 457 [26 September 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA9/2018[2019] NZCA 457BETWEEN KAZUKI KEINOAppellantAND THE QUEENRespondentHearing: 29 May 2019Court: Collins, Peters and Mander JJCounsel: S J Gray for AppellantP D Marshall for RespondentJudgment: 26 September 2019 at 3.30 pmJUDGMENT OF THE COURTA The application to appeal out of time is granted.B The application to adduce further evidence is declined.C The appeal against conviction is dismissed.D The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)[1] The appellant, Mr Keino, was convicted of five charges of importingephedrine, a class B controlled drug, following a jury trial before Judge Patel inthe District Court at Manukau in July 2017.1 Mr Keino now appeals against conviction1 Contrary to the Misuse of Drugs Act 1975, s 6(1)(a). Maximum penalty 14 years' imprisonment:ss 6(2)(b); and sch 2 pt 2 cl 1.and his sentence of nine years, four months' imprisonment with a minimum period ofimprisonment (MPI) of three years, 8 months, a little less than 40 per cent of the endsentence.2[2] The appeal against conviction is brought on the ground that a miscarriage ofjustice has occurred for two reasons. The first is trial counsel error and the second isthat fresh, cogent and credible evidence is available from Mr Keino and Mr Someya,a co-offender.[3] Mr Keino appeals against sentence on the ground that it is manifestlyexcessive.[4] Mr Keino's notice of appeal was filed out of time. In order to deal withthe merits of the appeal, we grant the extension of time accordingly.Background[5] The Crown case was that Mr Keino was part of a group that travelled toNew Zealand to facilitate the importation of ephedrine, 32.75 kg of ephedrine to beprecise. The group comprised Mr Keino, Mr Iwai, Mr Someya and Mr Hara.Mr Keino and Mr Iwai arrived in Auckland in early-December 2015. Mr Someyaarrived in Auckland at the end of January 2016. Mr Hara arrived in Auckland on25 February 2016. All were arrested in early-March 2016.[6] Customs officers detained Mr Keino at Auckland International Airport on1 March 2016 when he was seeking to leave New Zealand. With the assistance ofan interpreter, they interviewed Mr Keino, largely in relation to what became knownas "import three". Import three was a shipment, via DHL, of side tables with 15.8 kgof ephedrine concealed in some of the legs.[7] The customs officers questioned Mr Keino about his activities in New Zealand.The gist of Mr Keino's response was that he had been helping a friend, Yugie, who rana business importing goods. Mr Keino's account was that, at Yugie's request, he hadopened post office boxes, collected packages from them and given those packages to2 R v Keino [2017] NZDC 20131.Yugie. He also said that that he had visited DHL's office at Auckland Airport, againat Yugie's request, to make enquiries as to whether the package comprising importthree had arrived. Mr Keino said he had done this in return for meals andthe occasional drink with Yugie, but mainly in the hope that Yugie would includeMr Keino in Yugie's import/export business or help Mr Keino set up his own business.The officers referred to other packages that Mr Keino said he had collected for Yugie.Mr Keino asked whether they suspected those other parcels contained drugs andthe officers said they did. Mr Keino insisted that his activities in New Zealand wereinnocent.[8] After the interview, customs officers charged Mr Keino with importation inrespect of import three. Mr Keino appeared in the District Court later that day, andMr Johnston was assigned to represent him. Mr Keino was charged in respect ofthe four other imports in April 2016. Mr Iwai and Mr Someya were also charged andpleaded guilty in mid-2016. Mr Hara pleaded guilty in late-2016.Trial[9] The Crown witnesses included customs officers, ESR personnel and post officeemployees. The DVD of the interview of Mr Keino was played and the transcriptproduced. The defence elected not to call or give evidence. The jury delivered(majority) guilty verdicts on 12 July 2017.[10] The principal issue at trial was whether the Crown could prove that Mr Keinoknew the various imports contained drugs or was reckless as to the same. The Crownrelied on circumstantial evidence to establish this mens rea element of the offence.The gist of the defence case, put in cross-examination, was that the Crown could notprove mens rea to the required standard.[11] The Crown case was strong. Mr Keino and Mr Iwai had said on their arrivalcards into New Zealand that they would be here for a week. Notwithstanding this,Mr Keino and Mr Iwai proceeded to rent a flat in Campbell's Bay and they also rentedseveral post office boxes (PO Boxes). Mr Iwai rented three of these PO Boxes andMr Keino two. This evidence raised the obvious question of why Mr Keino andMr Iwai would need one post office box, let alone five. Imports one, two and fourwere addressed to three of the PO Boxes. Mr Keino had three cellphones in hispossession when he was arrested. Photos of Hong Kong Post tracking numbers forimports one and four were found on one or other of the phones.[12] Import three, which we have said contained 15.8 kg of ephedrine, wasaddressed to the Campbells Bay flat that Mr Keino and Mr Iwai had rented. A personor persons unknown asked DHL to re-direct import three to the hostel at whichMr Hara stayed after he arrived in Auckland. By the end of the trial the Judge seemsto have been satisfied that it was Mr Keino who sought to arrange this. A photographof the DHL air waybill for import three was on one of Mr Keino's cellphones andMr Keino also went to DHL at Auckland Airport and made enquiries regardingthis import on 29 February 2016. Mr Keino's explanation for this in the interview wasthat Yugie had asked him to make these enquiries, so as to give Mr Keino, who is inhis 50s, some practice on precisely that, that is making enquiries.[13] On the face of it, import six contained shelving units. Tubes for the shelvescontained 10.3 kg of ephedrine. Import six was addressed to a flat in Glenfield whichMr Someya and Mr Keino had rented in early-February 2016. The tracking numberfor import six was recorded in a notebook in Mr Keino's possession at the time of hisarrest.[14] On searching the Glenfield flat in late-March 2016, customs officers locatedthe SIM card for the cellphone number written on the outside of the import sixpackage. They also found a notebook containing tracking numbers for imports threeand six; hand tools, including bolt cutters, an electric drill and a rubber mallet, as wellas heavy duty gloves and kitchen scales, all together in a bedroom at the address; andtwo keys for each PO Box. Mr Keino had said in the interview that Yugie had the keys,at least to the two PO Boxes that Mr Keino had rented.[15] There was no dispute at trial regarding this evidence. The only issue waswhether it was sufficient for the jury to infer knowledge or recklessness.First ground — trial counsel error[16] Ms Gray submitted that trial counsel error caused a miscarriage of justice,either because the trial was unfair or because the error gave rise to a real risk thatthe outcome of the trial was affected.3 She submitted that Mr Keino was notsufficiently informed as to the case against him and that his election not to give or callevidence was also insufficiently informed. In an affidavit sworn on appeal, Mr Keinosays that he would have elected to give evidence had he properly understood the caseagainst him, his defence being that he did not know the various packages containedephedrine and that he was duped by Yugie and Mr Iwai.Evidence[17] Mr Keino and Mr Johnston swore affidavits on the appeal and Mr Johnstonwas cross-examined before us. Ms Higurashi, an interpreter, also swore an affidavitbut it adds little to the issues we have to decide.Mr Keino[18] Mr Keino was remanded in custody between his arrest on 1 March 2016 andtrial in July 2017. He does not speak English and he and Mr Johnston communicatedvia Ms Higurashi.[19] Mr Keino's evidence on appeal is that he had little time with Mr Johnstonbefore trial. He had four meetings with Mr Johnston at prison prior to mid-August2016, so within the first few months of his arrest, and then nothing until June 2017which was shortly before trial.[20] Mr Keino says he was not provided with (translated) disclosure byMr Johnston, that the only document he and Mr Johnston discussed was the summaryof facts, and he did not know who was to give evidence for the Crown or what theywould say. The video interview was not translated and Mr Keino states that he hadlittle memory of what he had said until he saw the interview at trial.3 Criminal Procedure Act 2011, ss 232(2)(c) and 232(4).[21] As to his election not to give evidence, Mr Keino says, and this is not disputed,that Mr Johnston advised him not to give evidence. He says Mr Johnston did notexplain cross-examination or re-examination, nor prepare a brief of evidence.Mr Keino says he knew he had a choice as to whether to give evidence but he followedMr Johnston's advice because he thought he had to. Mr Keino says Mr Johnstonthought Mr Keino would be too nervous if he gave evidence and would "accidentallysay something [Mr Keino] was not intending to say". Mr Keino signed a documentprovided by Mr Johnston, confirming his election. Mr Johnston is not now able toproduce this document.[22] Mr Keino states that Mr Johnston did not discuss the Crown case with himafter it closed, but Mr Keino thought the jury would not be able to convict him givenhis lack of knowledge of the presence of drugs.Mr Johnston[23] Mr Johnston rejects these criticisms. He says that, following one or twounproductive meetings, he and Mr Keino settled on an arrangement whereby Mr Keinowould write to Mr Johnston with his questions, Mr Keino's letter would be translatedinto English, and Mr Johnston and Ms Higurashi would then discuss the case withMr Keino and answer his questions. Discussions occurred at the various one to twohour meetings at the prison, or at a Court appearance. We note that on the face ofa schedule prepared by the Crown, Mr Keino and Mr Johnston met 19 times betweenMr Keino's arrest and before trial, and they would have discussed matters duringthe trial.[24] Mr Johnston's evidence was that Mr Keino "knew the entire [Crown] casebackwards", that Mr Keino asked pertinent questions and took copious notes ofMr Johnston's answers, that he and Mr Keino discussed the summary of facts inconsiderable detail, and that summary identified much if not all of the critical evidenceagainst Mr Keino.[25] Mr Johnston did not have any documents relating to the case translated inwriting for Mr Keino. His evidence is that doing so would not have altered the waythe case was run or his advice that Mr Keino should not give evidence.Although Mr Johnston states he gave Mr Keino the disclosure, we accept that wouldbe of little use to someone who does not speak English.[26] Mr Johnston's evidence is that he and Mr Keino had several discussions aboutwhether Mr Keino should give evidence and that he explained the options to Mr Keino.Mr Johnston accepted he did not prepare a brief of evidence but said he consideredthat unnecessary because Mr Keino was not giving evidence. He said he would haveprepared a brief if Mr Keino had changed his mind. Mr Johnston also accepted thathe did not advise Mr Keino of the difference between statements made in an interviewand evidence on oath, but he did not consider this omission made any difference either.Mr Johnston advised Mr Keino against giving evidence, as Mr Keino had said in hisinterview that he had been duped by Yugie and that remained (and in fact remains) hisdefence. Mr Johnston thought Mr Keino had given a good account of himself inthe interview so had little to gain by giving evidence and exposed himself to needlessrisk, and the risk of giving the Crown more information if he did so. Mr Keinoaccepted this advice. Mr Johnston would also have confirmed Mr Keino's finalinstructions after the close of the Crown case. As to this latter point, there was a dayand a half (straddling a weekend) between the close of the Crown case and the pointat which Mr Keino had to confirm his election.[27] Ms Gray cross-examined Mr Johnston on whether the account Mr Keino gavein the interview was sufficient, given that much of the circumstantial evidence onwhich the Crown relied at trial was not put to Mr Keino during the interview.For instance, the customs officers had not asked Mr Keino about his relationship withthe co-offenders, why he had said on his arrival card that he was going to be inNew Zealand for a matter of days, for an explanation as to why he had in hispossession details of the contact phone numbers written on the outside of variouspackages, why he had gone to the airport to meet Mr Hara, and what the tools atthe Glenfield flat were to be used for.[28] Mr Johnston's response to this was that the Crown's circumstantial evidencewas not disputed. Mr Keino had opened two PO Boxes, there were photos of trackingnumbers on his phone, he had made enquiries of DHL and so on.Was Mr Keino sufficiently informed?[29] We do not accept Ms Gray's submission that Mr Keino was insufficientlyinformed of the detail of the Crown case, trial procedure, or how his defence was tobe presented at trial. Ms Gray submitted that the letters Mr Keino wrote toMr Johnston evidence this but we think the opposite.[30] Mr Keino wrote five letters before trial dated 5 August, 2 September,26 October and 30 December 2016, and 13 February 2017, and one after trial dated25 July 2017. We think it is clear from the letters before trial that Mr Keino wasfamiliar with the details of the case against him, and asking appropriate questions.For instance, in the 2 September letter, Mr Keino states the parcels for imports threeand six were addressed to people with Chinese, not Japanese, names and suggests theycould not have been for him. He also says that it was highly improbable these importswere meant for him, given the date those packages arrived and the date on which heproposed to leave New Zealand. Mr Keino must have obtained the informationregarding import six from Mr Johnston, as the matter was not covered in the interviewand also the charge in respect of import six was not laid until April 2016.[31] Mr Keino also asked whether the Crown had any "new" evidence against him,asked to know why he had been arrested, and referred to the fact that it was forthe Crown to prove Mr Keino knew the imports contained drugs. He asked what, ifany, evidence the Crown had on that issue and whether there was any evidence that hehad assisted in the imports. Mr Keino stated that the fact of the presence of trackingnumbers on his phone and in his notebook, and his enquiry of DHL, did not mean thathe knew drugs were being imported.[32] Mr Keino also referred in this letter to material discussed at the interview withthe customs officers, this being six months after the interview took place. Accordingly,although Mr Keino says in his affidavit on appeal that he did not recall the interview,he did recall it at the time he wrote his 2 September letter.[33] In his 26 October letter, Mr Keino referred to a question from Mr Johnstonabout why he had three cellphones in his possession when arrested, and he gaveMr Johnston instructions on that point. Mr Keino also referred to Mr Johnston tellinghim that the Crown had abandoned a charge against him (which it had, charge 5), askedwhy, said he did not know anything about New Zealand law, not even why he wasarrested "until you explained to me", asked how long the trial would be each day and"when someone has a question against me, can I know that in advance?". He askedwhat sort of evidence the Crown would need to present to prove guilt, referred tothe fact that Mr Johnston had told him the Crown was not "expecting much from Hara"and asked Mr Johnston to explain the differences between their cases.[34] We record that Mr Keino repeated several of the questions in his 26 Octoberletter in subsequent letters. Ms Gray submitted this indicated Mr Keino did notunderstand Mr Johnston's answers. We think it more likely that these questions andletters fell between meetings.[35] Turning to the letter after trial, Mr Keino criticised several of the Judge'sdirections and referred to the Judge's question trail. This listed five questions the juryhad to answer in respect of each charge. Mr Keino said that he did not considerthe jury would have difficulty on questions one to three which concerned the fact ofimport and Mr Keino's assistance of the same, but that he had hoped the jury wouldstruggle with questions four and five, which concerned knowledge, alternativelyrecklessness. These are not the comments of someone who did not understandthe issues or what had gone on at trial.[36] Given this evidence, we are satisfied Mr Keino understood the case againsthim and that the issue at trial would be his knowledge/recklessness or the lack of it.Election[37] Ms Gray submitted that the Crown case was complex and that, in the absenceof Mr Keino giving evidence, there was no explanation for various pieces ofincriminating evidence. She submitted that the interview was no answer to the caseultimately brought against Mr Keino, that Mr Johnston needed to advise Mr Keino ofthat fact, and to advise Mr Keino of the difference between statements made inan interview, such as that conducted with Mr Keino, and viva voce evidence fromthe witness box. Ms Gray also submitted that the day and a half between the close ofthe Crown case and the making of the election was not a substantial period inthe scheme of this case. Moreover, Ms Gray advised that Mr Keino could offer a fullexplanation of the circumstantial evidence against him, even though that explanationis not in his affidavit on appeal. However, that explanation should be in his affidavit.All that Mr Keino says in his affidavit on appeal is that he was duped by Yugie, as hesaid in his interview, and by Mr Iwai. That does not assist us.[38] Ms Gray referred us to Chambers v R and Tarring v R as cases on point.4In Chambers, the defendant was clear from the outset that he wished to give evidence.Trial counsel did not think he should as she thought he would be a bad witness.This Court said the election is always one for the client to make, after being informedand advised by counsel, and it was not satisfied Mr Chambers had made an informeddecision not to give evidence.5 It was also a concern that trial counsel did not haveMr Chambers' version of critical events and that, absent Mr Chambers givingevidence, his account would not be before the jury as he had not made a statement tothe police. This is a point of distinction from the present case.[39] In Tarring, trial counsel advised Mr Tarring not to give evidence. Mr Tarringunderstood and accepted counsel's reasons. This Court allowed Mr Tarring's appealas, amongst other things, trial counsel had failed to "advise fully on the possibleadvantages of giving evidence", including explaining fully the differences between"an unsworn police interview and sworn testimony", and the opportunity the lattergives to build a "rapport with the jury".6 Another issue was trial counsel's failure toprepare for the possibility that Mr Tarring might elect to give evidence which, onthe facts of the case, was "always possible".7 Counsel did not prepare a brief forMr Tarring or prepare him for cross-examination. Given these, and other matters,this Court was satisfied Mr Tarring's election not to give evidence was not a properlyinformed one.4 Chambers v R [2011] NZCA 218; and Tarring v R [2016] NZCA 452.5 Chambers v R, above n 4, at [5] and [13].6 Tarring v R, above n 4, at [29].7 At [31].Discussion[40] We accept Ms Gray's submission that the decision of whether or not to giveevidence was one for Mr Keino to make, informed as to the advantages anddisadvantages of doing so.[41] On the evidence before us, Mr Keino made such a decision, with the requiredinformation. We accept Mr Johnston's evidence that he and Mr Keino had severaldiscussions about whether the latter should or would give evidence; that he,Mr Johnston, advised Mr Keino against doing so for the reasons referred to above; andthat Mr Keino's consistent decision, confirmed in writing, was that he would not giveevidence. Relying on the explanation Mr Keino gave in the interview was a reasonabletrial strategy, and Mr Keino's decision not to subject himself to cross-examination alsoa reasonable one in the circumstances.[42] It is correct that some aspects of the Crown case thus went unanswered but, aswe have said, they remain unanswered. Mr Keino must have understood that atthe time. Mr Keino was not "passive". He asked appropriate questions and the letterhe wrote to Mr Johnston after trial evidences that he understood what was taking placeat trial. He also had a lengthy period on which to reflect on his election.[43] Given these matters, we are not persuaded this is a case in which there was anyerror or omission raising a real risk that the outcome of the trial was affected.Second ground — fresh evidence[44] Ms Gray also relies on fresh evidence, being the evidence Mr Keino wouldhave given at trial, and the evidence Mr Someya would give if called as a witness.As Ms Gray acknowledged, the evidence is not fresh as it could have been adduced attrial, but she submitted that it is cogent and credible and that a miscarriage of justicewill result if it is excluded, that is it "might reasonably have led the jury to returna different verdict".8 In reply, Mr Marshall submitted that the evidence is not credible,and, in any case, no miscarriage of justice will result if the evidence is excluded.8 R v Bain [2004] 1 NZLR 638 (CA) at [18]; citing R v Crime Appeal (CA60/88) (1988) 3 CRNZ512 (CA) at 513. See Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [119]–[121], [127]–[128].[45] We have already referred to the fact that Mr Keino's affidavit does not advancematters beyond the explanation he gave in the interview. His affidavit has assisted insetting out matters relating to this ground of appeal but as it pertains to evidence hewould have given at trial, the evidence is not fresh. As we have said, we accept thatMr Keino made an informed decision that he would not give evidence at trial.We decline to admit his evidence accordingly.[46] In his evidence, Mr Someya refers to two packages that he, with Mr Keino onthe second occasion, received. Mr Someya's evidence is that he delivered these topeople unknown. Mr Someya says that, although he was suspicious that drugs wereinvolved and he "felt the whole thing was dodgy", he "did not talk to anyone about[his] suspicions", including Mr Keino, and that Mr Keino was not similarly suspicious.[47] This assertion as to Mr Keino's state of mind may have corroboratedthe defence advanced at trial. On the other hand, and as Mr Johnston said in evidence,Mr Someya is a convicted drug importer. It is also not credible that he did not sharehis suspicions with Mr Keino, given that they occupied the Glenfield flat together fora month or so. We consider Mr Someya's evidence so implausible that it would belikely to do the defence case more harm than good. No miscarriage of justice wouldresult from the absence of Mr Someya's evidence. We decline the application toadduce this evidence.[48] We dismiss the appeal against conviction.Appeal against sentence[49] The Judge adopted a starting point of 10 years' imprisonment.9 He then gaveMr Keino a discount of eight months, being about 6.7 per cent of the starting point, toreflect his lack of prior convictions and the fact that, as a foreign national, Mr Keinowould find prison more difficult than would otherwise be the case. This broughtthe end sentence to nine years, four months' imprisonment. The Judge imposedan MPI of 40 per cent, or three years, 8 months.9 R v Keino, above n 2, at [18].[50] Ms Gray challenges the starting point and the discount. There is no challengeto the MPI.[51] The Crown submits the end sentence is within range and no reduction isrequired.Starting point[52] The Judge considered a 10-year starting point to be a fair reflection ofMr Keino's culpability. He was satisfied that Mr Keino had been convicted onthe basis of knowledge, not recklessness; that Mr Keino was a "key" participant inthe importations; and that he had played the "most significant" role of the fouroffenders.10 He was in New Zealand for the duration of the offending, had arrangedPO Boxes and the two flats, had dealt with the courier firms, the Judge was satisfiedthat Mr Keino sought to have a package (import three) redirected to Mr Hara's addressand, on arrest, Mr Keino was in possession of information relating to almost all ofthe imports. In addition, Mr Keino had been found guilty of importing 32.75 kg ofpseudoephedrine, compared to 26.1 kg for Mr Iwai and Mr Someya whose startingpoints were nine years' imprisonment.[53] The Judge considered Mr Keino's offending fell in the mid-range of the eightto 14-year band for principal offenders in large-scale commercial importations inR v Wallace.11 The Judge also referred to Brewer J's decision in Wen v Police, inwhich the Judge had identified a starting point of between nine and 10 years'imprisonment for Mr Wen.12 Mr Wen's associates had imported 30.94 kg ofpseudoephedrine into New Zealand, concealed in a water filter. Mr Wen renteda storage unit, liaised with customs regarding the consignment, arranged the deliveryof the filter to the storage unit, and obtained tools with which to open the filter.Brewer J's assessment was itself based on this Court's decision in R v Wang.13Mr Wang provided his associates with a place to store an oven containing 11.2 kg ofephedrine. On a successful Solicitor-General's appeal, this Court considered a starting10 At [11]–[15].11 R v Wallace [1999] 3 NZLR 159 (CA) at [30].12 Wen v Police [2014] NZHC 2085 at [8].13 R v Wang [2014] NZCA 409.point of eight years' imprisonment was "the lowest available" for Mr Wang.14 BrewerJ considered Mr Wen more culpable than Mr Wang.[54] Judge Patel considered Mr Keino more culpable than Mr Wen, giventhe greater number of importations, the greater quantity of ephedrine involved, andMr Keino's key role. Hence the 10-year starting point.Parity[55] Ms Gray's principal submission is that the Judge erred in his assessment ofMr Keino's role and that is why the starting point is excessive. Ms Gray acknowledgesthe greater quantity for which Mr Keino was for sentence as opposed to hisco-offenders. However, she submitted there was no basis for the Judge's finding thatthe jury determined Mr Keino was guilty on the basis of actual knowledge rather thanrecklessness, or on which to determine that Mr Keino had the most significant role.She submitted that Mr Keino's actions were consistent with his being a low-levelreceiver or "catcher" at most, and that his starting point should therefore be no morethan the nine years adopted for Mr Iwai and Mr Someya.[56] We are satisfied that it was open to the Judge to take the view he did. He hadheard all the evidence, and the basis on which the Crown presented its case as to mensrea. Moreover, the evidence to which he referred was not in dispute. This being so,there was a proper basis for the greater starting point he adopted for Mr Keino, andno improper disparity.Foreign national prisoner status[57] We accept Ms Gray's submission that Mr Keino faces hardships in prisonbecause of his lack of English, and other matters such as a diet he is not used to, a lackof familial support and his lack of understanding of New Zealand's social and culturalnorms. Ms Gray submitted that the discount the Judge gave is just too modest fora prisoner in Mr Keino's position.14 At [25].[58] In support of her submission, Ms Gray referred us to this Court's decision inGao v R in which the Court declined to rule out giving a discount for foreignnationality hardship in cases of drug importation.15 That statement was made aproposof an earlier statement by this Court in R v Ahlquist.16[59] That said, discounts for foreign national status in cases of drug importationhave been modest, as the offending is such that it carries an inherent risk ofimprisonment for a lengthy period in a foreign country. In Chan v R, this Court saidthat a discount of, effectively, between two and three per cent at most would ordinarilybe available.17 In Ayala v R, this Court described a discount of 15 per cent given atfirst instance as "more generous than this Court has countenanced in cases ofinternational drug trafficking".18[60] Crown counsel referred us to several cases in which the discounts given incases involving similar offending ranged from one to eight per cent.19 This is distinctfrom more substantial discounts given in sentencing for different types of offending.The underlying rationale for a more modest discount in the case of drug importationstill holds good in our view. We are not persuaded the discount was too modest anddecline to increase it.Result[61] The application to appeal out of time is granted.[62] The application to adduce further evidence is declined.[63] The appeal against conviction is dismissed.15 Gao v R [2018] NZCA 69 at [20]–[22].16 R v Ahlquist [1989] 2 NZLR 177 (CA) at 179.17 Chan v R [2009] NZCA 528 at [8].18 Ayala v R [2012] NZCA 271 at [13], citing Ogaz v R [2007] NZCA 45 at [29]; Chan v R, aboven 17, at [8]; Close v R [2011] NZCA 434 at [20]–[21]. See also Machado-Pereira v R [2015]NZCA 423 at [13]; and O'Connor v R [2016] NZCA 414 at [36].19 R v Cook [2017] NZHC 2034 at [69]; Chan v R, above n 17; R v Gan [2016] NZHC 2349 at [26];R v Hung [2017] NZHC 467 at [7]–[9]; Pishchako v New Zealand Customs [2018] NZHC 386 at[21]; R v Ip [2016] NZHC 1825 at [20]–[24]; Ogaz v R, above n 18; and Liew v R [2016] NZHC627 at [9] and [33].[64] The appeal against sentence is dismissed.SolicitorsCrown Law Office, Wellington for Respondent