MAN V R [2017] NZCA 525

MAN V R [2017] NZCA 525 [16 November 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA352/2017[2017] NZCA 525BETWEEN TSZ HO MANAppellantAND THE QUEENRespondentHearing: 16 November 2017Court: Harrison, Lang and Ellis JJCounsel: P J Kaye for AppellantE J Hoskin for RespondentJudgment: 16 November 2017ORAL JUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Harrison J)Introduction[1] Following trial before Duffy J and a jury in the High Court at Auckland theappellant, Tsz Ho Man, was found guilty on one charge of importing 2.18 kilogramsof methamphetamine. He was convicted and sentenced to 16 and a half years'imprisonment with a minimum period of eight years and three months' imprisonment.11 R v Man [2017] NZHC 1197.He now appeals against his finite sentence on the ground that it was manifestlyexcessive.Background[2] The relevant facts are not in dispute. Mr Man is a national of Hong Kong. Hearrived in New Zealand from that country some two weeks before the importation ofa package containing 2.81 kilograms of methamphetamine. Within the consignmentwas 2.3 kilograms in liquid form concealed within boxes of face masks. The balancewas in powdered form concealed within marker pens.[3] In preparation for the operation Mr Man had rented a room in an Aucklandbackpackers' hostel. The consignment was sent to him there. He and his co-offender,Mr Yung, were arrested when the police conducted a surveillance operation. Mr Yungpleaded guilty before trial. He accepted a sentencing indication.2 On that basis hewas sentenced to 10 and a half years' imprisonment with a minimum period of 40 percent.3[4] Duffy J adopted a starting point of 17 years in sentencing Mr Man.4 She wasconscious of the starting point of 14 years adopted for Mr Yung.5 She carefullyexplained her reasons for drawing a distinction in the roles played by each of the twomen. Having heard the evidence at trial, she was satisfied that Mr Man's participationwas significantly more culpable. He was more than a catcher. He was, as Ms Hoskinpoints out, responsible for processing the liquid form into methamphetamine powderinto New Zealand. The Judge took specific account of this difference in fixing thestarting point.Decision[5] Before us Mr Kaye submits that Duffy J erred in adopting a starting point of17 years' imprisonment. In his submission an appropriate period was 15 to 16 years.He focused primarily on the value of the imported drugs, drawing comparative2 R v Yung [2017] NZHC 608.3 R v Yung [2017] NZHC 895.4 R v Man, above n 1, at [8].5 At [5].references to the amounts involved in sentences imposed in other importations.6However, value is not the only determinant of culpability. The particular role playedby an offender is also critical. We are satisfied, based on other authorities of this Courtwhich Ms Hoskin cited for the Crown,7 that the starting point adopted by Duffy J whilestern was within range.[6] Mr Kaye also submits that the discount of some six months' imprisonmentallowed to Mr Man was insufficient. The Judge took into account his personalhardship in serving a sentence in a foreign country.8 He has no family here or contacts.Mr Kaye says that the Judge should have allowed additionally for Mr Man's goodcharacter. He is 30 years of age and has no previous convictions.[7] However, we are not satisfied that Duffy J erred. She had the benefit of seeingand hearing Mr Man give evidence and of the opportunity to evaluate his character.She concluded that he was an intelligent, well-educated man. He had an engineeringdegree and well-paid employment in Hong Kong. He had in her words "made a coldblooded rational decision to carry out this offending simply to obtain money".9 Shewas entitled to reach that robust view. And it is well settled that character plays little,if any, part in the sentencing process where a defendant is convicted of major drugimporting.10Result[8] Despite the spirited argument advanced by Mr Kaye, we dismiss the appeal.Solicitors:Crown Law Office, Auckland for Respondent6 R v Fatu [2006] 2 NZLR 72 (CA); O'Connor v R [2016] NZCA 414; R v Yung, above n 2; and R vYung, above n 3.7 R v Fatu above n 6; R v Nguyen [2009] NZCA 239; O'Connor v R above n 6; Hoang v R [2016]NZCA 335; Chen v R [2010] NZCA 552; R v Rameka [1973] 2 NZLR 592 (CA); and R v Jarden[2008] NZSC 69, [2008] 3 NZLR 612.8 R v Man, above n 1, at [16].9 At [13].10 See R v Jarden, above n 7.