XIANG SU v R [2020] NZCA 128

XIANG SU v R [2020] NZCA 128 [30 April 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA105/2019[2020] NZCA 128BETWEEN XIANG SUAppellantAND THE QUEENRespondentHearing: 26 February 2020Court: Miller, Dobson and Moore JJCounsel: R J Hooker for AppellantJEL Carruthers for RespondentJudgment: 30 April 2020 at 9.00amJUDGMENT OF THE COURTA Application for extension of time to appeal granted.B Appeal allowed.C The sentence of five years and 10 months imprisonment is quashed.D A sentence of five years imprisonment is substituted.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] Mr Su was convicted after a jury trial on one count of possessing 233 g ofmethamphetamine for supply. He appeals his sentence of five years, 10 monthsimprisonment,1 relying on this Court's guideline judgment in Zhang v R.2 He contendsthat his was a lesser role and he ought to receive a discount for addiction.Extension of time[2] Mr Su was sentenced by the trial Judge, Gordon J, on 30 May 2017. He didnot take steps to appeal his sentence until 18 March 2019, when he filed whatpurported to be an application for leave to appeal. He was 408 working days late.He requires an extension of time to bring his appeal. This raises two questions.The first is whether Zhang, which was delivered on 21 October 2019, governs thiscase. The second is whether an extension is warranted on the facts.[3] In Zhang the Court held that the guidelines apply to sentences passed after21 October 2019 regardless of when the offending took place. The Court adopted thetraditional view that Zhang applies to sentences that had already been passed "if andonly if two conditions are satisfied: (a) that an appeal against the sentence has beenfiled before the date the judgment is delivered; and (b) the application of the judgmentwould result in a more favourable outcome to the appellant".3[4] Both parties contended that Zhang should apply here. As Mr Carrutherspointed out, it was not necessary for Mr Su to apply for leave to appeal.The procedurally correct course was to file a notice of appeal in which he sought anextension of time.4 We accept that Mr Su's application for leave is appropriatelytreated as a notice of appeal with a request for an extension of time. As Mr Hookerobserved, some of the appeals decided in Zhang also required extensions of time andwhen holding that the new guidelines apply to 'appeals filed' before 21 October 2019the Court did not distinguish those appeals that require an extension from those thatdo not. A literal approach is appropriate. The appeal was filed before 21 October2019, and Zhang accordingly applies.1 R v Su [2017] NZHC 1147.2 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.3 At [188].4 Criminal Procedure Act 2011, s 248(1)(a) and (4)(a); and Court of Appeal (Criminal) Rules 2001,rr 11 and 12.[5] Mr Su belatedly filed an affidavit seeking to explain his delay. He deposes thathe was unaware of the sentences passed on his co-offenders, who pleaded guilty andwere sentenced separately, and did not appreciate that he might be able to claimdisparity. Neither his trial counsel nor counsel whom he consulted subsequentlyadvised him that he might be able to challenge his sentence.[6] The Crown's position is that an extension of time ought to be granted if theappeal is thought to have merit. The delay here is very long. But Mr Su has explainedhis failure to act, and his evidence is not challenged. In the absence of opposition wewill grant the extension.Approach to the appeal[7] Mr Su was sentenced under the former methamphetamine guideline judgment,R v Fatu,5 and his is one of a number of appeals the disposition of which has beendelayed pending the updated guidelines issued in Zhang. For this reason we approachthe appeal not as a search for error in the sentence passed below but by assessing theoutcome against the new guidelines.The facts[8] We accept the bare facts that Mr Su participated in a methamphetamine-dealingorganisation by acting as a driver and storing the drug at his home. Gordon J recordedthe circumstances in which the 233 g were found:[7] On 16 July 2015 the police executed a search warrant at your homeon the North Shore where you lived with your wife and her mother. In abedroom on the ground floor, which you had been occupying, the police found233 grams of methamphetamine hidden in a computer tower under a desk.The methamphetamine was packaged in small self-sealing bags. Seven ofthose bags contained between 27.5 and 27.7 grams of methamphetamine.The other bags contained smaller amounts. The methamphetamine that wasfound in your bedroom was estimated to have a street value of between$77,000 and $140,000 depending on how it was sold.[8] Other items found in a desk in the bedroom included a piece of paperon which was recorded, amongst other things, a series of numbers withdecimal points, which were either just over or just under the number 28.There were also other associated documents. You accepted in your evidence5 R v Fatu [2006] 2 NZLR 72 (CA).that the documents were in your handwriting but said you did not know whatthe numbers related to.[9] Also in the desk drawer the police located electronic scales of a kindthat were able to weigh very small amounts of methamphetamine and anumber of empty and unused self-sealing bags.[9] The Judge explained that Mr Su gave evidence and denied knowledge of themethamphetamine hidden in the computer tower. Plainly the jury rejected thataccount.[10] The Judge recorded the Crown submission that the quantity ofmethamphetamine and the presence of snap-lock bags, electronic scales and a tick listtogether demonstrated that there was a significant degree of commerciality to Mr Su'soffending. He had accounted for the latter items in evidence by saying he was addictedto the drug and the empty and unused plastic bags and scales related to his own use;he was in the habit of dividing the methamphetamine that he obtained from others intosmaller bags. The Crown invited the Judge to reject those claims.[11] The Judge did not make the factual findings necessary to settle these competingclaims. She did conclude that Mr Su's involvement in the operation was "relativelyminor",6 noting an absence of intercepted communications between him and hisco-offenders, and she accepted that his offending "may well have been driven" byaddiction rather than monetary gain.7 She also considered the starting point that sheadopted, six and a half years imprisonment, to be consistent with those adopted for hisco-offenders, each of whom had played a more significant role.The sentence[12] The Judge identified no personal aggravating factors that would increase thestarting point.8 In mitigation, she allowed five per cent for previous good characterand five per cent for remorse.9 She declined any allowance for restrictive bailconditions.10 The end sentence was five years, ten months imprisonment.116 R v Su, above n 1, at [22].7 At [22].8 At [23].9 At [24]–[25].10 At [26].11 At [30].The appeal[13] Mr Hooker submitted that the starting point of six and a half years was toolong. That figure ought to be reduced for Mr Su's role, which he characterised as"lesser". He emphasised the absence of evidence that Mr Su had any operational roleor issued directions or participated for financial gain. He urged us to adopt a startingpoint of four years imprisonment. He did not pursue the issue of disparity.[14] Counsel also asked us to make an allowance for addiction at the second stageof the sentencing analysis. He suggested a discount of six months, including remorse.That would result in an end sentence of three years, six months imprisonment.[15] For the Crown, Mr Carruthers submitted that following Zhang the startingpoint and end sentence remain within the available range and the sentence ought notbe disturbed.The starting point[16] The quantity is the first determinant of sentencing. The 233 g places Mr Suvery near the top of Zhang Band two, which attracts a starting point of 2–9 years.He must be taken to have had possession of that quantity for the purpose of supply.[17] Role is an important consideration, and the question is to what extent Mr Su'srole as storeman and driver calls for a reduction. The Judge characterised his role asminor, relative to others, and she reflected that in the starting point, but of course shewas not considering the role indicia to which the Court drew attention in Zhang.12[18] Mr Carruthers submitted that the facts engage several of the "significant" roleindicia. Specifically, Mr Su's role was operational. That is demonstrated by thequantity of the drugs and the presence of items consistent with methamphetaminedealing. He submitted that the tick list was written by Mr Su and recorded amountscorresponding to the weight of the bags of methamphetamine found, suggesting thathe weighed and packaged the methamphetamine for onward sale. Further, the quantityinvites an inference that he had some awareness and understanding of the scale of the12 Zhang v R, above n 2, at [126].operation. The absence of intercepted communications does not suggest otherwise.By his own evidence Mr Su saw his co-offenders frequently in person.[19] Mr Hooker resisted these submissions, pointing to the absence of factualfindings by the Judge and suggesting the prosecutor may not have challenged Mr Suabout the tick list, bags and scales. If that latter submission were correct, we wouldconsider ourselves bound to accept Mr Su's evidence.[20] We have reviewed the evidence. Contrary to Mr Hooker's understanding, theprosecutor did challenge Mr Su's claim that he had been dividing up themethamphetamine for his own use. In his evidence in chief Mr Su claimed that hedid so to ensure he did not overdose and also to keep his expenses under control.He explained that he had written the tick list but in evidence in chief was unable to saywhat the numbers meant. He denied that he had ever weighed out large quantities ofdrugs for his co-offenders. In cross-examination he was taken to what would be aremarkable co-incidence if the numbers were unrelated to the drugs. The numbersroughly corresponded to the weight of the seven bags found, each of which was veryclose to 28 g or one ounce. Mr Su denied that he wrote the numbers down because hewas keeping a record of methamphetamine he was weighing. There were alsohandwritten notations that suggested he had paid for some but not all of themethamphetamine. The cross-examination also focused on his close and regularconnection with some of the co-offenders at their premises.[21] Mr Su evidently was not a credible witness. The jury rejected his claim thathe knew nothing of the methamphetamine in the computer tower. We do not find hisexplanation for the tick list in the least credible either. The evidence compels theinference that he was weighing the bags to ensure he placed an ounce of the drug intoeach, and he must have been doing that for on-sale.[22] Mr Carruthers submitted that a sentencing court should focus on the offender'sconduct when determining their role and position within a band. Addiction is relevantat that stage to show, for example, the offender's knowledge of the operation andmotivations for participating. He accepted that Mr Su may have received littlefinancial gain over and above a steady supply of free methamphetamine, but the factremains that his was a significant role in a substantial operation. He compared thecircumstances of this case with those of Ms Phillips, whose appeal was decided inZhang.13 She was a low-level supplier in her own right, dealing to feed her ownaddiction, and she accompanied her partner on two trips to supply at least 6 kg ofmethamphetamine. This Court considered that the five-year starting point adopted bythe sentencing judge properly reflected her culpability given her minimal input intothe offending and small personal commercial benefit. Overall, Mr Carrutherssubmitted, Mr Su was fortunate to receive the starting point that he did. A startingpoint of four years for such a quantity would be manifestly inadequate.[23] We accept Mr Carruthers' submission that Mr Su was a little more than a merecourier and storeman; he was involved in preparing methamphetamine for onwardsale. He must have had some knowledge of the scale of the operation in which he wasinvolved. We consider that his role was nonetheless a lesser one; we think it likelythat he acted under direction and we accept that he did not share in the monetary gains,beyond receiving enough methamphetamine to feed his habit. We infer from theJudge's findings that she accepted his evidence that he was addicted. The risk he tookwas outsized when compared to his reward.[24] Based on quantity, which is the primary determinant, Mr Su would sit near thetop of Band two with a starting point of about eight years, but the lesser nature of hisrole in the operation reduces the seriousness of his offending substantially. Taking allthese considerations into account, we would adopt a starting point at the mid-point ofthe band, five and a half years imprisonment.Addiction as a personal mitigating factor[25] We do not accept that a further discount ought to be given for addiction in thiscase. As noted above, we accept, given the trial Judge's findings, that Mr Su is anaddict and was paid in methamphetamine which he consumed. But we do not inferthat addiction played a causal role in the offending. As the Court explained in Zhang,addiction mitigates culpability where it impairs the rational decision to commit the13 At [204]–[228].offence.14 Perhaps because the evidence of addiction ultimately rests on Mr Su's ownaccount at trial, there is not sufficient evidence that addiction had that effect here.Nor is there any evidence that his rehabilitative prospects justify a discount.The discount of ten per cent given by the sentencing Judge adequately recognised themitigating circumstances in this case and is upheld.Disposition[26] We grant an extension of time.[27] The appeal is allowed.[28] We quash the sentence imposed and substitute a sentence of five yearsimprisonment.Solicitors:Vallant Hooker & Partners, Auckland for AppellantCrown Law Office, Wellington for Respondent14 At [137]–[138].