TANG v R [2021] NZCA 266

TANG v R [2021] NZCA 266 [23 June 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA657/2020[2021] NZCA 266BETWEEN XIAO YAN TANGAppellantAND THE QUEENRespondentHearing: 12 May 2021Court: Clifford, Simon France and Edwards JJCounsel: H G de Groot and T W R Lynskey for AppellantM H Cooke for RespondentJudgment: 23 June 2021 at 11 amJUDGMENT OF THE COURTA The application for leave to admit the report of Ms Howarth dated15 March 2021 is granted.B The appeal against sentence is allowed. It is substituted for a sentence of12 years' imprisonment.C The District Court's order imposing the MPI is quashed.____________________________________________________________________REASONS OF THE COURT(Given by Edwards J)[1] Mr Tang pleaded guilty to 41 charges1 of supplying a total of 1.6 kg ofmethamphetamine;2 four charges of possessing a total of 161 g of methamphetaminefor supply;3 and one charge each of supplying 500 g of ephedrine,4 possessingmethamphetamine5 and possessing utensils.6 The latter two charges were committedwhile on bail.[2] Judge Dawson, at the District Court at Auckland, imposed a sentence of13 years and seven months' imprisonment with a 50 per cent minimum period ofimprisonment on 18 May 2017 for all but the offences committed while on bail.Concurrent sentences of one month's imprisonment were imposed for thosetwo offences.7[3] Mr Tang was granted leave to appeal his sentence out of time. He appeals hissentence as-of right on the following grounds:8(a) the starting point of 16 years' imprisonment was too high;(b) a two year uplift for the ephedrine charge was excessive;(c) a higher discount for personal factors including addiction, goodcharacter, youth, remorse and the burden of isolation was warranted;and(d) the MPI was unnecessary.The offending[4] In early 2015, police began an investigation into the drug dealing activities ofan Auckland based group, including Mr Tang. The investigation included the use of1 There are differences as to the number of charges in the summary of facts, Crown Charge Noticeand sentencing notes. We have relied on the summary of facts to which Mr Tang pleaded guilty.Counsel for Mr Tang accepts that any differences are immaterial.2 Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a).3 Section 6(1)(f) and (2)(a).4 Section 6(1)(c) and (2)(b).5 Section 7(1)(a) and (2).6 Section 13(1)(a) and (3).7 R v Tang [2017] NZDC 10379.8 Criminal Procedure Act 2011, s 244.interception, visual surveillance, and tracking devices in relation to Mr Tang andanother individual.[5] The supply of methamphetamine occurred on 41 occasions over a three-monthperiod from 12 June to 18 September 2015. The total supplied was 1.6 kg.The offending involved Mr Tang obtaining methamphetamine and supplying it toa co-offender who on-supplied it to his own customers. Another co-offender wouldboth supply Mr Tang with methamphetamine and receive methamphetamine from him.[6] Mr Tang was generally supplying half, one, two, or three ounces (14, 28, 56,and 84 grams respectively) at a time. He charged between $10,000 and $15,000an ounce. The dealing was conducted out of his inner-city apartment or at agreedmeeting places at storage facilities, hotels and residential properties across Auckland.[7] The four possession for supply charges cover the same period. Three ofthe charges involved transactions between Mr Tang and one of his co-offenders.The fourth charge was for methamphetamine found by police when they executeda search warrant at Mr Tang's address. Mr Tang admitted this methamphetamine wasfor supply.[8] On 18 September 2015, Mr Tang received 500 g of ephedrine as he waswaiting in a parked car. He then drove to another location, handed over the drugs,and collected payment. The original supplier met him at a third location, whereMr Tang handed over the money, less his share.[9] Police executed the search warrant later that night. In addition to themethamphetamine, they also found approximately $50,000 in cash, which Mr Tangadmitted was the proceeds of drug dealing.[10] Mr Tang was granted bail simpliciter on 8 October 2015. On 12 November2015, he was arrested and found in possession of a utensil and a quantity ofmethamphetamine.99 The quantity is not specified in the documents before the Court.District Court sentence[11] Mr Tang appeared for sentence on 18 May 2017. The guideline judgment ofthis Court in R v Fatu still applied.10 The total quantity of the methamphetaminesupplied put the offending in band four of those guidelines, attracting a starting pointof 10 years to life imprisonment.11[12] The Judge regarded the gravity of the offending as high.12 The quantitiesinvolved (a total of 1.6 kg of methamphetamine and 500 g of ephedrine), the fact thatsome of the offences were committed on bail, the extent of the harm, and the high levelof commerciality were identified as aggravating features of the offending.13 The Judgecharacterised Mr Tang's role as a "lead offender",14 and adopted a starting point of16 years' imprisonment for the supply-related methamphetamine charges.15[13] An uplift of two years was imposed for the "co-offending", which we taketo relate to the ephedrine offending. The global starting point adopted was accordingly18 years' imprisonment.16[14] From that starting point, a deduction of 20 months (approximately nineper cent) was made for "good record" and remorse. A deduction of four months wasapplied for the 10 months spent on electronically monitored ("EM") bail.That discount took into account the offending while on bail simpliciter. A deductionof 15 per cent (amounting to 29 months) for the guilty plea was then applied, reducingthe end sentence to 13 years and seven months' imprisonment.17 Concurrent sentencesof one month's imprisonment were imposed for the charges of possession of a utensiland possession of methamphetamine while on bail.1810 R v Fatu [2006] 2 NZLR 72 (CA).11 At [34].12 R v Tang, above n 7, at [6].13 At [6]–[7].14 At [7].15 At [10].16 At [10].17 At [12].18 At [14].[15] The Judge imposed an MPI of 50 per cent, simply noting that it was "requiredto hold [Mr Tang] accountable for the harm caused to the community by this type ofoffending and to reflect the sentencing factors of deterrence and denunciation".19Was the starting point of 16 years' imprisonment too high?[16] Mr de Groot, for Mr Tang, submits that the starting point of 16 years'imprisonment for the supply of methamphetamine offences was excessive.[17] There is no dispute that the quantity of methamphetamine at issue (1.6 kg)put this offending well into band four of R v Fatu which covers supply of 500 gor more. Mr de Groot submits a starting point of 14 years was appropriate givenMr Tang's role in the offending, the level of commerciality involved, and the natureof the offending while on bail.[18] Specifically, Mr de Groot submits there was no support for the Judge'scharacterisation of Mr Tang as a "lead offender". He says that the offending describedin the summary of facts suggests that Mr Tang was operating independently, more likea wholesaler, rather than as part of a larger syndicate. He also submits the levelof commerciality needs to be kept in perspective, pointing to the absence of evidenceregarding large profits or an extravagant lifestyle. Mr de Groot says that the offencescommitted on bail were also low level and predictable given Mr Tang's addiction.Finally, he submits that there is a lack of sophistication in Mr Tang's offending, evidentin the "unthoughtful" way Mr Tang communicated with co-offenders, the lack ofevidence regarding money laundering, and the "naive" way Mr Tang simply took overthe operation after the arrest of his friend.[19] We agree that the "wholesaler" label is apt to describe Mr Tang's role. But thatis not necessarily inconsistent with the Judge's description of Mr Tang as alead offender. Mr Tang was essentially a sole trader, operating independently and witheffective decision-making control. In that sense, he was the lead offender in hisown operation. It is also true that there were aspects of his offending that appearunsophisticated and naive, and there was nothing to suggest he was generating large19 At [13].profits. Nevertheless, the quantities supplied, and the prices commanded, indicate thatMr Tang was running a significant commercial enterprise. We do not consider thecharacterisation of Mr Tang's role as a lead offender in those circumstances ledthe Judge into error.[20] We have considered the cases referred to us by counsel for both parties.The 41 supply charges over a relatively short period, the quantities involved, andMr Tang's role, make his offending significantly more serious than those referred to usby Mr de Groot.20 At the other end of the scale, those cases relied on by the Crowninvolve offending generally more serious than the present case due to additionalcharges, higher quantities, or the presence of weapons.21[21] On balance, we consider the starting point of 16 years' imprisonment wasat the upper end, but not outside, the available range.Was the two year uplift for the ephedrine offending excessive?[22] The second ground of challenge relates to the two-year uplift applied bythe Judge for the supply of ephedrine.[23] We agree with Mr de Groot that this offending formed part of a connectedseries of events, with the only difference being the nature of the illegalsubstance supplied.[24] Nevertheless, it was appropriate for this offending to be marked by an uplift.Ephedrine is a pre-cursor substance for the manufacture of methamphetamine.Under R v Fatu, the manufacture of methamphetamine attracted higher startingpoints.22 The large quantity involved in this case, being 500 g, also warrantedan uplift.20 R v Norton [2016] NZHC 1035; R v Nguyen HC Auckland CRI-2008-092-2364, 1 December 2009;and R v Wellington [2018] NZHC 2196.21 R v Zhou HC Auckland CRI-2006-019-8458, 10 March 2009; R v McQuade HC Auckland CRI-2006-019-8458, 10 September 2008; R v Huang HC Auckland CRI-2006-019-8458, 8 May 2009;and R v C HC Auckland CRI-2006-004-25638, 17 August 2007.22 R v Fatu, above n 10, at [43].[25] However, the gravity of this offending had to be assessed in context. Mr Tang'shandling of the ephedrine involved passing it from one offender to the other. He wasthe middleman in the transaction and his involvement in the supply was somewhatfleeting. There is no suggestion he had any other connection to the manufacturingoperation.[26] Viewed in light of his offending as a whole, we consider this particulartransaction adds little to the assessment of Mr Tang's overall culpability. It is unlikelythat a two year uplift would have been applied if the substance supplied had beenmethamphetamine, rather than ephedrine. We consider an uplift of no more thansix months was appropriate for this charge.[27] Taking the starting point of 16 years' imprisonment for the supply ofmethamphetamine, and applying an uplift of six months for the supply of ephedrine,leads to a global starting point of 16 years, six months' imprisonment. It follows thatthe global starting point of 18 years' imprisonment adopted by the Judge was too high.Should a higher discount have been applied for personal circumstances?[28] Mr Tang does not challenge the discounts applied by the Judge for"good record" and remorse (twenty months) and for the time spent on EM bail(four months). However, he says that the overall discount (including the discountsapplied by the Judge) should amount to 25 per cent when the role of addiction, youth,remorse, and the burden of isolation is taken into account.[29] Leave is sought to admit the report of a clinical psychologist, Ms Howarth,dated 15 March 2021. The report expands on information contained in thepre-sentence report regarding Mr Tang's background and provides independentconfirmation of a methamphetamine dependency. The report is not fresh, but it iscogent, and the Crown abides the Court' decision regarding its admissibility.We consider leave should be granted in these circumstances and order accordingly.[30] Mr Tang was around 24 years of age at the time of the offending. He is ofChinese descent, and his partner and two children now reside in China, leavingMr Tang without family support in New Zealand. Mr Tang reported to thepsychologist that he was first introduced to methamphetamine in 2014 by a friend.He began working as a driver for that friend who was dealing in methamphetamine.When his friend was arrested, he took over the supplier role. By 2015, Mr Tangestimated that he was using methamphetamine nearly every day and he describedbeing trapped into dealing by his addiction.[31] We accept that discounts for personal mitigating factors, including addiction,were available pre-Zhang.23 Another Judge may have given discounts for Mr Tang'saddiction issues, relatively young age, and for the additional burden in servinga sentence in New Zealand without family support. However, at the time Mr Tangwas sentenced, discounts were rarely applied for personal mitigating factors in casesof serious drug offending as the principles of denunciation and deterrencetook precedence.24 In light of this prevailing approach and the significant quantitiesinvolved, we do not consider the application of a limited discount for personalmitigating features was an error justifying appellate interference.[32] In any event, the application of the discounts applied by the Judge (20 monthsfor good record and remorse, four months for time spent on EM bail) to the lowerglobal starting point of 16 years, six months' imprisonment results in a slightly higherdiscount (12.12 per cent) than that applied by the Judge. Consistent with this Court'sjudgment in Cheung v R, we apply the two-step methodology described in Moses v Rin calculating the new sentence.25 That results in an end-sentence of 12 years'imprisonment. We are satisfied that such a sentence captures the overall gravityof Mr Tang's offending.[33] The sentences of one month's imprisonment imposed for possession of autensil and possession of methamphetamine, to be served concurrently, remainunaltered.23 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648. See R v Jarden [2008] NZSC 69, [2008]3 NZLR 612 at [12]–[15].24 Chen v R [2009] NZCA 445, [2010] 2 NZLR 158 at [174].25 Cheung v R [2021] NZCA 175 at [48]; and Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381 at[46].Should an MPI have been imposed?[34] The final ground of appeal concerns the 50 per cent MPI imposed by the Judge.[35] The Judge did not elaborate on the reasons for imposing a MPI in this case,other than to reflect the threshold and factors set out in s 86 of the Sentencing Act.26That left the impression that the MPI had been imposed mechanistically, withoutregard to the particular circumstances of Mr Tang's case. That was an error inour view.[36] There were several features of Mr Tang's case which suggested that an MPIwas not necessary. They included: the fact that Mr Tang was relatively young, had nocriminal history, and was previously of good character. The personal addiction issues,support from his family (albeit from afar), and the degree of insight into his offending,lessened the need for accountability, deterrence and denunciation. The psychologicalreport, which was not before the Judge, bolsters this assessment. We consider an MPIwas not required in this case, and the order imposing it should be quashed.Result[37] The application for leave to admit the report of Ms Howarth dated15 March 2021 is granted.[38] The appeal against sentence is allowed. It is substituted for a sentence of12 years' imprisonment.[39] The District Court's order imposing the MPI is quashed.Solicitors:Crown Law Office, Wellington26 R v Tang, above n 7, at [13].