GAO v R [2018] NZCA 69

GAO v R [2018] NZCA 69 [23 March 2018]IN THE COURT OF APPEAL OF NEW ZEALANDCA365/2017CA386/2017CA405/2017[2018] NZCA 69BETWEEN ZHUOLING GAOFirst AppellantJACK YUN-CHIEN HSUSecond AppellantTUNG HAN WUThird AppellantAND THE QUEENRespondentHearing: 26 February 2018Court: Gilbert, Simon France and Whata JJCounsel: B L Sellars for First AppellantK H Maxwell for Second AppellantN P Chisnall for Third AppellantE J Hoskin for RespondentJudgment: 23 March 2018 at 2.30 pmJUDGMENT OF THE COURTThe appeals against sentence are dismissed____________________________________________________________________REASONS OF THE COURT(Given by Whata J)[1] Ms Gao, Mr Hsu and Mr Wu appeal against sentence. Ms Gao and Mr Hsuwere sentenced to nine years' imprisonment for conspiracies to import and supplymethamphetamine. Mr Wu was sentenced to 17 years and three months' imprisonmenton three unrelated methamphetamine importation charges and on the conspiracy tosupply charge.The factsImportation[2] Mr Wu was found guilty on three charges of importation of methamphetamine.The facts of this offending are not disputed. In summary, Mr Wu, together with hisassociates, Mr Wang, Mr Bih and Mr Huang, imported 3.642 kilograms ofmethamphetamine in three shipments, namely:(a) On 8 February 2015, a wine bottle arrived in New Zealand. Testing ofthe liquid indicated it contained 495 grams of pure methamphetamine.(b) On 15 February 2015, a package containing a further six wine bottlesarrived in New Zealand. In total, these wine bottles contained1.67 kilograms of pure methamphetamine.(c) On 19 February 2015, another package of six wine bottles arrived.In total, these wine bottles contained 1.477 kilograms ofmethamphetamine.[3] Mr Hsu and Ms Gao were also charged, but acquitted in relation to thisoffending. The conspiracy to import charge relates to further planned importationsafter these importations.The conspiracy charges[4] Ms Gao and Mr Hsu pleaded guilty to the conspiracy charges. It appears theydid not plead to the summary of facts. In any event, helpfully, Judge Ronaynesummarised the facts of the conspiracy offending based on his view of the evidence,the accuracy of which is not challenged. He stated:1[13] Mr Hsu and Ms Gao, also you have admitted that you together agreedto supply methamphetamine in New Zealand which is of course charge 7. Theintercepted communications exhibited at trial show that you three, that isMr Hsu, Ms Gao and Mr Wu and Mr Wang intended to import very largecommercial quantities of methamphetamine into New Zealand and for Mr Hsuand Ms Gao to arrange its ongoing subsequent supply.[14] The communications disclosed the scale of the conspiracies and theorganisation of the criminal enterprise. Mr Hsu, Ms Gao and Mr Wu wereheard to discuss bringing into New Zealand very large commercial quantitiesof methamphetamine where you three discussed importing 10 kilograms onone occasion and making profits of $200,000 a week. It was also discussedbetween you that you would have and I quote, "Dozens of kilos." At one pointMr Hsu and Ms Gao discussed buying a property and the possibility ofspending two to three million dollars on that. In one communication, betweenMr Hsu and Mr Wu, there was talk of wanting to make $2 million and that inone year, 100 kilograms could make $20,000 per kilogram.[15] There were also discussions of bringing in methamphetamine weeklyand monthly. There were other discussions about making a net profit of$2 million and that 10 kilograms could make you $800,000 to $1 million andthat money could be hidden in bank accounts.[5] The Judge also linked the conspiracy offending to the importation offending.The correctness of this linkage is not accepted. The Judge observed:[21] I turn to the conspiracy offending. Mr Wu, you were involved in boththe importing offending and the conspiracy to import methamphetamine.Mr Hsu and Ms Gao, you were closely associated with Mr Wu and othersinvolved in the importation of methamphetamine during the Februaryimportations. Mr Hsu and Ms Gao's association in that period included thesethings:(a) Huey Bih was seen at your address, 22 Endeavour Street, on19 February 2015.(b) You took Mr Bih to the airport when he departed New Zealand on9 March 2015.(c) When Mr Wu departed New Zealand for the first time on 3 March2015, both of you were seen at the airport departure with Mr Bih.(d) Fu Tai Wang received package 5, charge 5, at the White Swan Roadaddress on 23 February 2015 at around 12.15 pm. You two, Mr Hsuand Ms Gao, were seen at approximately 1.00 pm waiting with Mr Bihand Mr Wu on Dominion Road anticipating in my view the arrival of1 R v Gao [2017] NZDC 13444 at [13]–[15].Fu Tai Wang. You were all seen spending the balance of the daytogether.[6] We will return to the significance of the linkage drawn to the importationbelow.Sentences[7] The appellants were sentenced together. The Judge rejected the submissionthat quantum could not be established. He said the conspiracy was clearly entered intowith the intention of making very large profits quickly from the importation of largequantities of methamphetamine. He considered Mr Hsu, Ms Gao and Mr Wu playedsimilar roles in the conspiracy to import methamphetamine.[8] Judge Ronayne acknowledged the pain Ms Gao and Mr Hsu will suffer frombeing separated from their child. He adopted a starting point for the conspiracy toimport of 12 years, based on R v Fatu band four, for methamphetamine importation,and reduced this by 30 per cent to eight and a half years' imprisonment.2 He added atwo-year uplift for the conspiracy to supply. The Judge then applied discounts offive per cent for personal mitigating factors and 10 per cent for guilty pleas. An endsentence of nine years' imprisonment was imposed for both Ms Gao and Mr Hsu,comprising seven years six months on the conspiracy to import charge and one yearsix months on the conspiracy to supply charge.[9] A starting point of 15 years was adopted for Mr Wu's importations and, after adiscount of five per cent for mitigating factors, a sentence of 14 years andthree months' imprisonment was imposed. The Judge said he could not differentiateMr Wu's part in the conspiracy offending from Mr Hsu and Ms Gao. The conspiracysentence was thus comprised of an eight year six month starting point, less five percent for personal factors. A reduction to three years was given for totality reasons.Taking the importation and conspiracy charges cumulatively, an end sentence of17 years and three months' imprisonment was imposed, with a minimum period ofimprisonment of seven years.2 R v Fatu [2006] 2 NZLR 72 (CA) at [36].Ms Gao and Mr Hsu[10] Ms Sellars, for Ms Gao, emphasised the following:(a) The sentencing Judge wrongly concluded that Ms Gao (and Mr Hsu)were closely associated with Mr Wu and his associates during theimportation, given that they were acquitted of the importation charges.(b) Large amounts of methamphetamine were referred to in conversations,but these discussions do not appear to have been founded in reality.(c) In R v Naupoto3 and R v Briaturi4 lower starting points were adopted toreflect the improbability of the import ever occurring.(d) It is inherent in the charge of conspiracy to import that there will besubsequent possession for supply. There should be no uplift for aseparate charge that makes up part of the overall offending.(e) A 15 per cent discount was warranted for a guilty plea, given thereduction in trial time, and a six month allowance for personal factorswas insufficient, particularly given Ms Gao's good background.[11] Ms Maxwell adopts these submissions for Mr Hsu and raises a further point.She submits the starting point for Mr Hsu on the conspiracy charge is inexplicablyhigher than the sentence handed down to Mr Wu, even though they have similar levelsof culpability. This, she says, violates the parity principle.5Assessment[12] The Judge did not err and the sentences handed down were available to him.First, the Judge was correct to place the conspiracy offending within band four of Fatu.The recorded communications reveal they spoke about importing 10 kilograms,3 R v Naupoto [2012] NZHC 3138.4 R v Briaturi [2008] NZCA 412.5 R v Lawson [1982] 2 NZLR 219 (CA) at 222–223.making profits of $200,000 a week, "dozens of kilos", and a net profit of $2 million.Furthermore, it was available to the Judge to find that:6I am satisfied that on an overview of the evidence that all that stopped youfrom actually importing, in other words proceeding from a plan to actualimportation, was a hold up in the exportation of the methamphetamine fromTaiwan and the termination of the operation and your arrest.[13] Second, as Ms Sellars noted, there is no direct evidence of methamphetaminehaving been obtained for the conspiracy. But the absence of methamphetamine was afactor considered by the Judge.7 Furthermore, it was available to him to find that theprospect of importation was not a daydream or a fantasy, given that one of the membersof the conspiracy successfully imported methamphetamine only a few months prior tothe period of the conspiracy. Ms Gao and Mr Hsu must have known about this giventhe evidence, highlighted by the Judge, of their close association with Mr Wu at thetime of the importation. In this regard, the challenge by Ms Sellars to the linkagedrawn by the Judge between Mr Hsu and Ms Gao, and Mr Wu's importation, ismisplaced. The Judge simply identified specified instances of their connection withaspects of Mr Wu's importation activities. In doing so, he was not making findings ofculpability for the importation that were inconsistent with the jury verdicts.8[14] Third, the facts of the present offending are distinguishable from the facts in Rv Naupoto and in R v Briaturi.9 In those cases, substantial discounts were afforded toreflect the improbability of the importation ever occurring. In Naupoto, the appellanthad clearly been duped and there was never any prospect of any methamphetamineimportation. In Briaturi, the sentencing Judge was satisfied the appellants wereunlikely to be able to achieve the importation "because they were never going to beable to source the necessary chemicals".10 By contrast, in the present case, Ms Gaoand Mr Hsu were conspiring with a person of proven ability to importmethamphetamine.6 R v Gao, above n 1, at [29].7 At [30].8 Acts following the importation cannot themselves be the basis for liability. See R v Hancox [1989]3 NZLR 60 (CA).9 R v Naupoto, above n 3, at [9] and [16]; and R v Briaturi, above n 4, at [46].10 R v Briaturi, above n 4, at [46].[15] Fourth, the uplift for the conspiracy to supply was not excessive. While thesupply formed an inherent part of a wider enterprise, it was separate offending byMs Gao and Mr Hsu warranting a distinct sentence. A relatively modest uplift of twoyears was not out of range. Furthermore, there was nothing wrong in the discounts of10 per cent for a guilty plea and of five per cent for personal factors. They were plainlyavailable to the Judge as part of his overall discretion.[16] Fifth, the parity principle is not engaged by the facts of the present sentences.Mr Wu's lead charge was the importation. Any apparent disparity between hissentence for the conspiracy to import and the sentences handed down to Ms Gao andMr Hsu was simply a function of the different charges faced by him and the totality ofoffending underpinning his sentence.[17] Finally, stepping back from the finer grain, an effective 10 years six monthsstarting point for conspiracy to import and supply very large quantities ofmethamphetamine was not out of range. In Banaba v R, this Court adopted a 13 yearstarting point for three charges of conspiracy to import, involving about 10 kilogramsof methamphetamine.11 Like the present case, this was based on the fact that theconspiracies involved very large commercial quantities of methamphetamine, theenterprises were at an advanced stage, and Mr Banaba played an important role in theoperation.12Mr Wu[18] Mr Chisnall, for Mr Wu, contends that the Judge failed to properly considerMr Wu's foreign national status when fixing the sentence. He refers, in particular, tothe following paragraph of the Judge's decision:13[50] Nothing has changed since that decision [R v Alquist] weakening the need for theCourts to sufficiently discourage persons from bringing drugs into New Zealand. Theonly thing that has changed is that there is perhaps an even firmer resolve to detersuch offending. There may well be classes of cases where a discount might beavailable to a foreign national on a sentence of imprisonment for such things as baddriving causing death. That might be something never contemplated upon arrival but11 Banaba v R [2016] NZCA 122 at [38].12 At [34]-[38].13 R v Gao, above n 1, at [50].for you, Mr Wu and Mr Wang, the position is different. So in my view drugimportation is not one of the class of cases where I should make a differentiation so Idecline to give any discount to reflect your citizenship and all [that] comes with that.[19] This passage is said to reveal that Judge Ronayne adopted a fixed rule approachto serious drug offending, rather than an orthodox application of sentencing principles,including having regard to the personal circumstances of each offender. We are invitedto consider whether this is treated as a presumption and thus too rigidly applied, whichrisks causing undue hardship to foreign offenders. Mr Chisnall referred to UKresearch which shows that the welfare of the prisoner is linked to his or her nationality,immigration status and maintenance of family ties.[20] We agree with Mr Chisnall that it would not be appropriate to apply a fixedrule that discounts for foreign nationality will never be available for offending of thepresent kind. The Sentencing Act 2002 requires a sentencing Judge to consider, amongother things, whether a sentence of imprisonment would be disproportionately severeon the prisoner.14[21] We also accept that the effects of dislocation from family and culture mayresult in a sentence being disproportionately severe on a foreign national.The UK reports cited by Mr Chisnall identify the types of dislocation effects onforeign prisoners that might be relevant to the assessment of the severity of asentence.15 Relevantly, one reason for the increased number of foreign nationals inUK prisons is the increased sentence lengths for drug importation offences.16Anne Owers, HM Chief Inspector of Prisons, noted in 2006:17As the report makes clear, foreign nationals, though a divergent group, have arecognisable cluster of specific needs. Our research identified three that areboth serious and prevalent, across all groups. They are: language, family linksand immigration. The three are interlinked, and can result in isolation,depression and confusion. Family links were particularly important forwomen prisoners, many serving long sentences for drug importation; whileyoung prisoners tended to be unaware of the serious potential consequencesof their sentences.14 Sentencing Act 2002, s 8(h).15 Magali Barnoux and Jane Wood "The specific needs of foreign national prisoners and the threatto their mental health from being imprisoned in a foreign country" (2013) 18 Aggress.ViolentBehav. 240, at [3.1]–[3.2].16 HM Inspectorate of Prisons Foreign national prisoners: a thematic review (July 2006) at 3.17 At 1.[22] Simple things also impact more severely on a foreign prisoner, including diet,religious needs and telephone costs. Cultural indifference or, worse, racism is anotherproblem.18[23] But without in any way criticising Mr Chisnall's helpful submissions, this isnot the proper case for formulating general guidance on discounts for dislocationeffects. There is no evidence before us on the effects of dislocation on foreignnationals in New Zealand and there is scant evidence to show that imprisonment willbe disproportionately severe for Mr Wu because of dislocation effects.[24] Another difficulty is that Mr Wu, more than most, engages the need fordeterrence. He has come to New Zealand for the sole purpose of importingmethamphetamine and has recruited others in New Zealand to do the same.[25] In any event, we consider that the Judge took a generous approach to Mr Wu'sminimum sentence by calculating it by reference to the sentence for the lead chargerather than the end sentence for all charges. Given that he was also afforded a five percent discount on the conspiracy charge, we are satisfied that the sentence imposedoverall was fair to Mr Wu.Result[26] The appeals against sentence are dismissed.Solicitors:Crown Law Office, Wellington for Respondent18 At 9–10.