HE v R [2017] NZCA 77

HE v R [2017] NZCA 77 [24 March 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA494/2016[2017] NZCA 77BETWEEN MING REN HEAppellantAND THE QUEENRespondentHearing: 14 February 2017Court: Wild, Simon France and Duffy JJCounsel: M N Pecotic for AppellantK S Grau for RespondentJudgment: 24 March 2017 at 3 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Duffy J)[1] Ming He was sentenced in the Auckland District Court to 12 years imprisonment with a seven-year minimum period of imprisonment (MPI) after he pleaded guilty to drug and firearms charges involving around one kilogram of methamphetamine, around 3.8 kilograms of ephedrine, a loaded pistol, andammunition.1 He appeals against his sentence on the ground it is manifestly excessive.Relevant FactsOffending[2] In July 2014 the police commenced an investigation into Mr He, which led to them obtaining interception warrants in order to search and seize his electronic communications. The investigation showed Mr He was engaged in illicit drug activity. On four separate occasions between July and August 2014, Mr He supplied ephedrine to the co-defendant Ms Bianca Comins. Then on 24 August 2014, Ms Comins arranged for her partner Mr Sean Marsh to collect ephedrine from Mr He. On leaving Mr He's address, Mr Marsh was stopped by police who foundhim to be in possession of approximately one kilogram of ephedrine (which is a product used to manufacture methamphetamine) and 28 grams of methamphetamine. In all, Mr He supplied a total of 2.8 kilograms of ephedrine.[3] The next day police executed a search warrant at Mr He's residence wherethey found approximately one kilogram of methamphetamine, one kilogram ofephedrine, a loaded pistol hidden under Mr He's bed and ammunition storedelsewhere. Police also found several sets of scales, methamphetamine pipes and $274,000, which are the classic indicia of a drug dealer.Earlier drug offending[4] At the time of the present offending Mr He was on parole, having been released on 30 October 2013 from a seven-year sentence imposed for offences of importing methamphetamine and importing, supplying and possessing pseudoephedrine.2 Between March 2008 and February 2009 he had imported 660 grams of methamphetamine and on 13 occasions he had imported1 R v He [2016] NZDC 17530 at [22]–[23]. He was convicted of one charge of possession of the class A controlled drug methamphetamine for supply; one charge of possession of the class B controlled drug ephedrine for supply; five charges of supply of ephedrine; one charge of unlawful possession of a firearm (a pistol) and one charge of unlawful possession of ammunition.2 R v He HC Auckland CRI-2008-004-2502, 11 December 2009 at [28].pseudoephedrine in the form of approximately 21 kilograms of ContacNT capsules that he sold. While charged and on bail for these offences, he imported another seven kilograms of ContacNT capsules. The potential methamphetamine yield from the pseudoephedrine was between 5.6 and 8.4 kilograms.Personal circumstances[5] Mr He had just turned 26 at the time the last offence was committed. Beyond the offending detailed in [4], he has no relevant criminal history. He is a recovering drug addict, having completed a programme in the Drug Treatment Unit while in prison. He is now a mentor within this programme.Sentencing in the District Court[6] Judge Gibson took the possession of methamphetamine for supply as the lead offence.3 The offending fell within band four of R v Fatu.4 This led the Judge to adopt a starting point of 14 years imprisonment.5 He then uplifted the sentence byone year to take account of Mr He's previous history and the fact he had offendedwhile on parole and still under sentence.6 There was a further uplift of four years to take account of the ephedrine offending, which brought the sentence to 19 years imprisonment.7 A total discount of 35 per cent was given to take account of the guilty plea (20 per cent) and other discounts available to Mr He.8 The Judge refused to give any credit for the fact Mr He had been recalled to serve the balance of the sentence imposed in 2009.9 This brought the end sentence to one of 12 years imprisonment.10 The Judge was satisfied that a minimum sentence of imprisonment of seven years should be imposed.11 The 12-year sentence of imprisonment was cumulative on the existing sentence which Mr He was currently serving.123 R v He, above n 1, at [2].4 R v Fatu [2006] 2 NZLR 72 (CA).5 R v He, above n 1, at [13].6 At [17].7 At [18].8 At [19].9 At [15].10 At [23].11 At [22].12 At [16]. The earlier sentence of imprisonment was due to expire towards the end of September 2016. Lesser sentences for the other offending were imposed concurrent with the 12-year sentence of imprisonment.Grounds of appeal[7] Mr He contends that:(a) The starting point of 14 years imprisonment for the lead charge of possession of methamphetamine was manifestly excessive.(b) The uplifts totalling five years imprisonment were manifestly excessive.(c) The Judge erred in not taking into account the fact that Mr He had been recalled to prison.(d) The Judge provided insufficient credit for mitigating factors and failedto take into account Mr He's rehabilitation.(e) The minimum non-parole period of seven years imprisonment was manifestly excessive.DecisionStarting point[8] Based on several cases involving offending more serious than his, Mr He argues that the starting point of 14 years imprisonment was manifestly excessive.13However, the Crown has identified other relevant cases which place the starting point in the available range.14[9] Band four of Fatu (which starts at 10 years imprisonment) applies to quantities of methamphetamine over 500 grams,15 and Mr He was in possession of approximately twice that amount. This supports the 14-year starting point.16 We put13 Voong v R [2013] NZCA 341; R v Li HC Auckland CRI-2006-019-8458, 25 August 2009;R v Norton [2016] NZHC 1035; and R v Hsu [2012] NZHC 931.14 R v C HC Auckland CRI-2006-004-25638, 17 August 2007; and R v Sui HC Christchurch CRI-2005-009-13774, 5 May 2006. The Crown also contends that Voong v R, above n 13, andR v Li, above n 13, can be read in a way that supports the starting point adopted here.15 R v Fatu, above n 4, at [34].16 See R v Fatu, above n 4, at [31]–[33].to the side the large amount of cash ($274,000) found at his address as this can just as readily be seen to relate to the ephedrine supply, in which case we take the view more favourable to Mr He.[10] Mr He seeks to reduce the significance of his criminal activities by saying hewas merely the "middle man" and there is no evidence of him actually sellingmethamphetamine. We reject those arguments. Whilst not an importer or a manufacturer, the evidence suggests Mr He played an important role in the illegal drug operation. He acted as a repository of the methamphetamine which was to be supplied to others.17 Further, Mr He's argument overlooks the purpose of thepossession, which is to enable the supply of methamphetamine to others. It is simply one step back in time from actual supply. We see no reason for distinguishing between someone like Mr He and an actual seller of methamphetamine.[11] Moreover, we note the Crown's argument that there was no uplift for thefire arms offending because in the District Court the Crown submitted this was an aggravating feature of the methamphetamine offending. We accept this is the likely explanation for why there was no uplift for the fire arms offending. The presence of firearms (particularly a pistol, which can be concealed) are part of commercial activity involving illicit drugs, and so can be treated as an aggravating feature of that offending. Here the presence of firearms also supports the 14-year starting point.[12] While there may have been scope to adopt a lower starting point, it was open to the Judge to adopt a starting point of 14 years imprisonment.Uplifts[13] Mr He's previous convictions are directly relevant to the present offending. They demonstrate a propensity for drug dealing and engage the sentencing purpose of deterrence.18 Moreover, despite being on parole for earlier serious drug offences, he went on to commit the present offences. This supports the 12 month uplift17 Mr He supplied Mr Marsh with 28 grams of methamphetamine, and the quantity found in Mr He's possession is consistent with supply for commercial purposes (the statutory presumption for supply of methamphetamine is at or above five grams, see Misuse of Drugs Act 1975, sch 5).18 Sentencing Act 2002, s 7(1)(f).imposed by the Judge, indeed we consider that uplift was at the bottom end of the appropriate range.[14] Mr He supplied ephedrine on numerous occasions, in quantities totalling around 500 grams each time. The $274,000 cash found at his address reflects the commercial nature of this offending. Mr He seeks to diminish his involvement with those funds by asserting he was merely a repository for the funds. Even if that were so, it indicates that he held a responsible role in a commercial operation.[15] To arrive at an appropriate uplift for the ephedrine offending Judge Gibsontook the starting point of six years imprisonment he adopted for Ms Comins'ephedrine offending and adjusted it downwards for totality.19 The Crown had sought an uplift of three to four years imprisonment. Mr He relies on Shaw v R to support his argument the uplift is manifestly excessive.20 However, Shaw is distinguishable as the offending in that case was less serious. We acknowledge there are cases supporting a lower uplift for associated ephedrine offending.21 Nevertheless, we consider the four-year uplift was available, although at the uppermost end of the appropriate range. Thus, each of the two uplifts somewhat counters the other.Recall to prison[16] Mr He complains about a lack of credit for time spent in prison following recall on his 2009 sentence. Mr He was required to serve about two further years before being sentenced on the current matters. The issues that can arise with crediting time spent on recall were recently considered in R v Sililoto, with this Court noting that the cases identify different approaches.22 Consistent with the approach taken in Sililoto, some allowance for time spent on recall may be needed to guard against double counting where, as here, there was an uplift for offending while on parole.19 R v He, above n 1, at [18].20 Shaw v R [2016] NZCA 100 at [16], where an uplift of nine months' imprisonment for associatedoffending was approved by this Court.21 See for example R v Stevens [2015] NZHC 2336; and Haarhaus v R [2010] NZCA 41.22 Sililoto v R [2016] NZCA 328 at [38]–[39].[17] However, no "double counting" has resulted here. First, time spent in prison following recall is the natural consequence of Mr He offending while on parole and so being required to serve the balance of his earlier sentence. Secondly, a complication arises. Mr He's sentence was made cumulative upon the sentence onwhich he was recalled.23 That earlier sentence had not long to run. The effect of making the sentences cumulative is that the MPI for the current sentence commences immediately after the date of parole eligibility on the 2009 sentences.24 The MPI calculation starts with the commencement date of the 2009 sentence, and goes forward one third of that sentence (being the statutory default period before parole eligibility). On that date (mid-2011) the current seven-year MPI starts. Thus, despite Judge Gibson imposing an MPI of seven years on 8 September 2016, Mr He is in fact eligible for parole in two years time, on 18 December 2018. Although that eligibility date is much earlier than Judge Gibson intended, it places a desirable onus on Mr He to persevere with his efforts to rehabilitate himself. But the corollary is that we do not consider a reduction for the two years spent on recall is necessary or appropriate.Insufficient credit for mitigating factors[18] Mr He does not complain about the guilty plea discount of 20 per cent. However, he contends the other mitigating factors, including remorse and rehabilitation, warranted greater recognition than the 15 per cent discount Judge Gibson gave. We do not agree. On the information available to the Judge, it was open to him not to give a discrete discount for remorse.[19] As to rehabilitation, we accept drug addiction can be an underlying factor in offending of this type. However, Mr He was involved in a commercial drug dealing operation which would inevitably lead to others becoming addicted. That leaveslittle or no room to treat Mr He's addiction as a mitigating factor. Further,Judge Gibson considered Mr He's involvement in the drug dealing was motivated by23 R v He, above n 1, at [16].24 Parole Act 2002, ss 75 and 84.more than addiction and we see no reason to differ from this view. The Judge gave appropriate recognition to the remaining mitigating factors.25MPI was manifestly excessive[20] Although the MPI is close to the statutory maximum,26 its practical effect is significantly reduced by the prison sentence being cumulative on the earlier sentence.27 Accordingly, we see no reason to interfere with the MPI.Conclusion[21] Mr He received a sentence at the upper end of the range for this type of offending. However, looked at overall it is not manifestly excessive. Accordingly, the appeal must fail.Result[22] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent25 Concerning personal circumstances, as Judge Gibson correctly noted in R v He, above n 1, at [10], this Court has said on a number of occasions that personal circumstances warrant little if any recognition in sentencing for serious drug offending. This is particularly so here, where Mr He is a repeat offender.26 See Sentencing Act 2002, s 86(4).27 See [17] of this judgment.