CHAI v R [2020] NZCA 202

CHAI v R [2020] NZCA 202 [2 June 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA50/2019[2020] NZCA 202BETWEEN WAI YEW CHAIAppellantAND THE QUEENRespondentHearing: 13 May 2020Court: Kós P, Venning and Mallon JJCounsel: S Brickell for AppellantE J Hoskin for RespondentJudgment: 2 June 2020 at 10 amJUDGMENT OF THE COURTA The appeal against sentence is allowed.B The sentence of 13 years and six months' imprisonment is quashed andsubstituted with a sentence of nine years and seven months'imprisonment.C The minimum period of five years and six months' imprisonment imposedby the District Court is quashed and substituted with a minimum periodof three years and 10 months' imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)[1] Mr Chai travelled to New Zealand from Malaysia for the sole purpose ofdealing in drugs. He posed as a tourist, staying for six months. Later he was joinedby two compatriots using the same cover. Their role was to receive packages ofephedrine, a precursor substance for methamphetamine, sent from overseas exportersand supply it to others further along the dealing chain. Mr Chai had the additionalresponsibility of renting residential delivery addresses around Auckland.Most transmissions went undetected, but those intercepted contained some60 kilograms of ephedrine.[2] On 10 January 2018 a further package arrived which contained not ephedrinebut two kilograms of methamphetamine. Mr Chai intercepted the (legitimate) courierdriver at the delivery address and attempted to persuade him to release the package.The courier driver was suspicious and would not do so. Mr Chai made repeated effortsto obtain release of the package. The courier company contacted the New ZealandCustoms Service. Mr Chai says that he agreed only to receive ephedrine, andthe supply of methamphetamine was a surprise to him. The summary of facts onwhich Mr Chai was sentenced proceeded on that basis.[3] Mr Chai was charged with and pleaded guilty to importing methamphetamine(a Class A drug),1 a representative charge of importing ephedrine (a Class B drug) and10 specific charges of importing the same drug.2[4] Judge Collins sentenced Mr Chai to 13 years and six months' imprisonment,with concurrent sentences of four years' imprisonment on the other charges,and a 40 per cent minimum period of imprisonment, equating to five years andsix months.3 Mr Chai appeals his sentence.Sentencing[5] The Judge first assessed the appropriate sentence starting point. He tookthe methamphetamine charge as the lead offence and applied a 15 year starting point1 Misuse of Drugs Act 1975, s 6(1)(a) and 6(2)(a).2 Section 6(1)(a) and 6(2)(b).3 R v Chai [2019] NZDC 1215 [Sentencing notes].to that. He then uplifted that starting point by three years for the ephedrine charges,having regard to the totality of the offending.4[6] Turning then to Mr Chai's personal circumstances, the Judge declined todiscount the sentence for remorse, concluding that the indications of remorse reflectedself-pity rather than real remorse for the harm that the offending would cause toNew Zealanders.5 Nor did the Judge give a discount for Mr Chai's status as a foreignnational in prison. The Judge noted that he was a mature man (40 years of age atthe time of sentencing) and that nothing before the Judge would suggest that he wasparticularly vulnerable or had been manipulated, threatened or coerced to come toNew Zealand to perform the role that he did.6 However, Mr Chai pleaded guilty at anearly stage and deserved the full 25 per cent discount available for the guilty plea.7[7] The end result was an end sentence of 13 years and six months' imprisonment,with a 40 per cent minimum period of imprisonment, equating to five years andsix months.8Appeal[8] Mr Brickell (for Mr Chai) challenges the sentence imposed by the Judge onfour bases: first, the starting point was too high; secondly, insufficient credit was givenfor personal mitigating factors; thirdly, the sentence lacked parity with Mr Chai'sco-offenders; and fourthly, a minimum period of imprisonment should not have beenimposed. We consider each submission in turn.Starting point[9] In Zhang v R this Court revised the R v Fatu sentencing guidelines formethamphetamine offending.9 This appeal was filed before Zhang was delivered and4 At [19]–[30]. The Judge took the view that had the ephedrine offending stood on its own, a startingpoint of 10 years' imprisonment for that would have been appropriate: at [30].5 At [31]–[32].6 At [39]–[40].7 At [17].8 At [41].9 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648; and R v Fatu [2006] 2 NZLR 72 (CA).it is accepted that the revised guidelines apply here. Some significant changes weremade to how starting points for methamphetamine offending should be calculated.[10] First, the new Zhang sentencing bands no longer differentiate between supply,importation and manufacture. Instead, knowing participation in importation ormanufacture may be indicative of a more significant role, attracting a higher startingpoint.10 Zhang reduces the entry points for the former Fatu bands one to four.The Court did so to permit lower sentences for offenders at the bottom of each band"whose role is found to be lesser in degree, and where quantities are at the lower endof the relevant range".11 The final Fatu band was divided into two bands, now knownas bands four and five.12[11] Secondly, the role played by an offender is a very important consideration insetting the starting point. In Zhang the Court provided a table of indicia fordifferentiating degrees of role between "lesser", "significant" and "leading"participation in the offending.13 We agree with the submission made to us byMs Hoskin that the list is not exhaustive, and that determining an offender'sculpability requires attention not only to seniority but also the nature of the offendingand the scale of the offending (such as temporal duration and number and frequencyof transactions). We also observe that an offender may strike indicia within differentdegrees of role — some suggesting "lesser", some a more "significant" role.The sentencing judge's task is to make an overall assessment of functionalresponsibility, recognising that quantity alone is insufficient to determine culpability.Submissions[12] Mr Brickell submits that the importation of two kilograms ofmethamphetamine falls at the lowest end of band five, providing a sentencing rangebetween 10 years and life imprisonment. He accepts that the role played by Mr Chaiwas significant, but at the lower end of significant. It is said that Mr Chai was merelya catcher, with no role in the supply stage of the operation. He received $2,000 to10 At [122].11 At [123].12 At [121].13 At [126].$3,000 per package, which was modest relative to the value of two kilograms ofmethamphetamine. There was no evidence he was involved in directing others inthe operation, and he was instructed by persons unknown higher up in the chain ofcommand. Mr Brickell likened the role performed by Mr Chai to that performed byMr Zhang in that nominate appeal, save that Mr Zhang had of course received17.9 kilograms of methamphetamine. This Court would have reduced the startingpoint for Mr Zhang from 17 to 15 years' imprisonment.14 Mr Brickell submits thatMr Chai is less culpable than Mr Zhang. First, the quantity was far less.Secondly, whereas Mr Zhang was cognisant that he was importing methamphetamine,Mr Chai had agreed only to be involved in the importation of ephedrine. As we haveobserved, the statement of facts proceeds on the basis that that assertion is true.[13] Mr Brickell submits that while rightly there should be no sympathy forMr Chai given that he had chosen to import drugs in the first place, his lack ofknowledge that the importation was of methamphetamine was relevant to hisculpability and ought to attract a lower starting point than a person who knowinglyimported that substance. Accordingly Mr Brickell submitted a starting point closer tothe bottom of band five, of 10 years' imprisonment, was appropriate.[14] Turning to the ephedrine offending, Mr Brickell submits that having regard tothe sentence imposed on Mr Chai's co-offender, Mr Neow, a starting point of 11 yearswould have been appropriate had Mr Chai been sentenced on the 11 ephedrine chargesalone. A cumulative sentence of 21 years would be out of all proportion to the totaloffending. An overall starting point of 15 years would be in proportion to the overallgravity of Mr Chai's offending "as a catcher at the bottom of the importation chain".Eighteen years, on the other hand, was excessive and crushing.[15] For the Crown, Ms Hoskin supports the Judge's starting point, thoughconcedes that it is "stern" in light of Zhang. A 15 year starting point is consistent withpre-Zhang authorities concerning importations of around two kilograms ofmethamphetamine.15 But if too stern post-Zhang, any excess is cancelled out by alenient uplift of only three years for the ephedrine offending.14 At [255]–[257].15 Nguyen v R [2009] NZCA 239 (1.7 kilograms, 16 years); and Man v R [2017] NZCA 525[16] If instead the ephedrine importing was taken as the lead offending, a startingpoint of more than 12 years would have been justified, having regard to the 11 and10 years adopted for Mr Chai's co-offenders Mr Neow and Ms Aloysius (for fewerimportations over a shorter duration), and to earlier authority.16 An uplift of six yearswould then be appropriate for the methamphetamine offending.Discussion[17] In terms of quantity it is correct that Mr Chai is at the bottom end of band five.But he rises through that band by reason of the role that he played. Mr Brickell'ssubmission that Mr Chai's role was "at the bottom of the importation chain" does notentirely square with the concession that his role was "significant but at the lower end".We would assess his role as a significant one in terms of the Zhang indicia.17 He heldan organising, operational role within New Zealand, he would have had someappreciation of the operational scale, and he was solely motivated by financial andrelated advantage.[18] Mr Chai entered into this activity with his eyes entirely open, and withthe purpose of both profit and pleasure. He said to the probation officer "every timeI signed for a package I would receive anywhere between $2,000 to $3,000". Mr Chaisaid he spent most of the money, but a little remained. The probation officer askedMr Chai why he agreed to the job and he replied, "I should not [have] done it inthe first place, but I like the idea of going overseas". The three co-offenders travelledfrom Malaysia posing as tourists. Mr Chai's role was the most significant one of thethree, and he was here for a longer period. Using his cover posing as a tourist he wasresponsible for obtaining the addresses to which the parcels would be sent.Further, although Mr Chai can to an extent distance himself from the importation ofmethamphetamine, he must have appreciated that ephedrine was imported only forthe purpose of conversion to methamphetamine. It served no useful function in itsown terms, and he would not have been receiving $2,000 to $3,000 per package fromsomeone who simply wanted ephedrine. He was receiving ephedrine as a precursorto methamphetamine production, and he would have been well aware of that fact.(2.18 kilograms, 17 years).16 R v Wang [2014] NZCA 409; and Yuen v R [2015] NZCA 555.17 Zhang v R, above n 9, at [126].[19] Ms Hoskin is right to say the sentence imposed, pre-dating Zhang, is stern.In light of Zhang and subsequent appellate decisions, too stern in our view.Approaching the methamphetamine charge alone, we are dealing with two kilogramsand a significant role. Mr Zhang had 17.9 kilograms and a significant but lower endrole in his supply chain — which would have attracted a starting point of 15 years.In this Court's recent decision in Miller v R, 905 g and a significant role in a largecommercial drug operation attracted a starting point of 11 years and six months'imprisonment.18[20] Another, useful way of analysing the appropriate starting point for Mr Chai isby reference to the bands denoted by Zhang. That is because the quantity here,two kilograms, is right on the cusp of bands four and five. So that means, for instance,that the ringleader of a supply chain concerned with say 1.95 kilograms might expecta starting point near the band four top of 16 years. A person in the chain with anunequivocally lesser role (but the same 1.95 kilograms) might expect 10 years(up from the eight year starting point, because the band starts at only 500 grams).Logically, someone in between (i.e. significant role and 1.95 kilograms) might expectbetween 12 and 14 years. A further 50 grams, taking the offender into band five,should make no very appreciable difference to those numbers.[21] Bearing those authorities and that analysis in mind, we consider the appropriatestarting point for Mr Chai was 13 years' imprisonment on the methamphetaminecharge.[22] The question then becomes what uplift should be applied to that sentence forthe substantial quantity of ephedrine imported by Mr Chai. We accept the submissionby Ms Hoskin that he was a committed ephedrine importer on a large scale, and thathis offending falls within the uppermost category in R v Wallace, representingcommercial activity on a major scale.19 The applicable starting point for the ephedrineoffending therefore falls within the range of eight to 14 years. We also agree that basedon R v Wang the ephedrine offending in its own terms would have attracted a sentence18 Miller v R [2020] NZCA 131.19 R v Wallace [1999] 3 NZLR 159 (CA) at [30].starting point of 12 years.20 It may be noted that Mr Chai's co-offenders, Ms Aloysiusand Mr Neow, had starting points of 10 and 11 years applied for their participation,at a lesser scale, in the importation of ephedrine only.21 We would have adopteda starting point of 12 years' imprisonment on the ephedrine charges, had that been allMr Chai faced.[23] It is necessary now to look at the offending in totality and assess a combinedstarting point, which will set the relevant uplift for the ephedrine offending. In ourview the appropriate overall starting point would have been of 16 years' imprisonment,based on a starting point of 13 years for the methamphetamine offending and an upliftof three years for the substantial ephedrine offending. As it happens, that is the sameuplift applied by the Judge.[24] This analysis addresses also the second appeal ground of parity.Personal circumstances: mitigating factorsRemorse[25] Mr Brickell referred to the letter of remorse written to the Judge by Mr Chai,along with one from his brother. He submitted that it was difficult to envisage howMr Chai could have expressed more remorse for the community beyond stating thatfact and that he prays for forgiveness.[26] There is something in that, but the letter is formulaic, and contains no realinsight on Mr Chai's part as to the implications of the offending for the community.It is that which is indicative of real remorse. We do not think the brother's letter addsmuch to that assessment. We note that the probation officer recorded that Mr Chai hadexpressed no remorse in the interview they had. We agree with Ms Hoskin'ssubmission that a robust assessment is needed of remorse, and the Court will look for"hard evidence of genuine regret and remorse".22 We do not think the Judge erred inhis assessment.20 R v Wang, above n 16, at [24].21 R v Aloysius [2018] NZDC 22931 at [32]; and R v Neow [2019] NZDC 9734 at [69].22 Senior v Police (2000) 18 CRNZ 340 (HC) at [21].Previous good character[27] The Judge was prepared to proceed on the basis that Mr Chai had no knownconviction history, although he was of course only a temporary visitor to New Zealand.Mr Chai did not furnish the Judge with proof of his good standing in Malaysia.The Judge was not prepared to provide a credit for good character because of thatfact.23 Mr Brickell submits that was an error in principle and Mr Chai's absence ofprevious convictions should be treated as a mitigating feature. He was deserving of amodest discount because of his good character. He was 40 years old at the time ofsentencing and to that point had lived a law-abiding life.[28] Ms Hoskin accepts that Mr Chai was a first time offender, but makes the pointthat his offending had continued over a protracted period of time. On that basisthe Judge was not dealing with a first offender being sentenced for a single offence.Prolonged and premeditated offending diminished or eliminated the consideration ofgood character.24 Ms Hoskin also acknowledged that both of Mr Chai's co-offendersreceived discounts for previous good character, Ms Aloysius receiving 15 per cent,25and Mr Neow five per cent.26[29] We consider the Judge erred in not treating Mr Chai as essentially in the sameposition as Mr Neow. A modest measure of credit is applicable for an absence ofconvictions, given the Crown accepts that to be the case. That is diminished in thecase of both Mr Chai and Mr Neow by the relatively protracted nature of the offending,but it was conducted predominantly over a relatively short period of time betweenNovember 2017 and January 2018.[30] There was also evidence before the Judge of extensive efforts Mr Chai hasmade in undertaking numerous courses of self-insight and improvement, and of hisworking with some distinction in the prison kitchen system. That might be indicativeof rehabilitative effort and prospects, but can be considered as a general indicator also23 Sentencing notes, above n 3, at [14].24 Referring to R v Zhang (2004) 20 CRNZ 915 (CA) at [26].25 R v Aloysius, above n 21, at [34].26 R v Neow, above n 21, at [71].of good character and ability to contribute in a meaningful way to society beyondcriminality.[31] Taken together, we consider a 10 per cent discount for good character andrehabilitative effort and prospects should have been allowed.Foreign national[32] Mr Brickell submits that the isolation of and denial of family support to foreignnationals in prison for drug offending may be treated as a mitigating factor whichmakes the sentence harder than usual to bear.27 Both Ms Aloysius and Mr Neowreceived sentencing discounts for that factor.28 The refusal to apply that also toMr Chai was on the basis of his maturity, and the fact that there was an absence ofmanipulation. Mr Brickell submits that sort of analysis concerns starting point andculpability, rather than the relevant effect of imprisonment on a foreign person shornof support. That applied equally to Mr Chai as to the others. In a sense it was worsefor him because being older, his parents were older, now in their seventies, and he isgravely concerned that he will not see them again during their lifetime.[33] Ms Hoskin acknowledges that as with his co-offenders, Mr Chai is a foreignnational with no family support in New Zealand. While that was a discretionary ratherthan automatic consideration, the Crown acknowledges that the Court may wellconsider such a discount warranted in these circumstances.[34] We accept that the Crown submission in this context is correct, and that theemphasis of the discount available is not based on culpability by reason of coercion(which would in itself reduce the level of the starting point), but rather a circumstancemaking the term of imprisonment harder for the offender to endure. In this caseMr Chai's greater age has its own adverse implications in terms of his prospects ofseeing his aging parents again. On the other hand, that greater age and experience oflife has plainly assisted Mr Chai adjust to life within prison, participate in work in the27 Referring to Zhang v R, above n 9, at [163].28 R v Aloysius, above n 21, at [34]; and R v Neow, above n 211, at [72].prison kitchen system and assimilate effectively to his new environment. A relativelymodest five per cent discount is appropriate.[35] In sum therefore Mr Chai's personal mitigating circumstances deservea 15 per cent reduction from his sentence starting point of 16 years.[36] In addition, the 25 per cent discount on account of his early guilty pleas isconfirmed.[37] The net effect of these discounts is an end sentence of nine years and sevenmonths' imprisonment. As in our recent decision in Royal v R, we take both discountstogether rather than calculating them sequentially.29Minimum period of imprisonment[38] Mr Brickell argues the minimum period imposed should be quashed.Although Mr Chai was knowingly participating in a large scale commercial drugimportation and was solely motivated by profit, he was a first time offender whoaccepted responsibility and was remorseful.[39] A minimum period of imprisonment may be expected in cases of recidivist orcommercial methamphetamine dealing. That is because in such cases its impositionis not merely deserved, but necessary to hold the offender accountable, denounce drugdealing of this kind with the grievous social harm it causes the community, protect thatcommunity and to deter repetition.30[40] We take the view that Mr Chai's extended involvement in significantcommercial dealing, for profit and travel benefits but without regard to the societalharm his actions were causing, means a minimum period of imprisonment is requiredin this case. The minimum period here, at the relatively low level of 40 per cent,is lenient. It is confirmed. However, as a percentage of a now-reduced sentence, it toomust reduce and becomes three years and 10 months' imprisonment.29 Royal v R [2020] NZCA 129 at [29].30 Zhang v R, above n 9, at [171].Result[41] The appeal against sentence is allowed.[42] The sentence of 13 years and six months' imprisonment is quashed andsubstituted with a sentence of nine years and seven months' imprisonment.[43] The minimum period of five years and six months' imprisonment imposed bythe District Court is quashed and substituted with a minimum period of three yearsand 10 months' imprisonment.Solicitors:Crown Law Office, Wellington for Respondent