WANG v R [2021] NZCA 79

WANG v R [2021] NZCA 79 [19 March 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA480/2020[2021] NZCA 79BETWEEN YANG WANGAppellantAND THE QUEENRespondentHearing: 15 February 2021Court: Cooper, Wylie and Katz JJCounsel: S N B Wimsett for AppellantJ E Mildenhall for RespondentJudgment: 19 March 2021 at 11 amJUDGMENT OF THE COURTA The appeal against sentence is allowed.B The sentence of five years and six months' imprisonment is quashed andsubstituted with a sentence of four years' imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Katz J)[1] Mr Wang pleaded guilty to importing 430.1 grams of the Class A drugmethamphetamine,1 and 4,916 grams of the Class B drug MDMA.2 He was sentencedby Judge P Winter to five years and six months' imprisonment.3[2] Mr Wang now appeals his sentence on the basis that it is manifestly excessive.Mr Wimsett, counsel for Mr Wang, submitted that the starting point was too high, theuplift applied in respect of the MDMA offending was also too high and that insufficientdiscount was given for Mr Wang's youth.The offending[3] On 13 February 2019, the New Zealand Customs Service examined a packagecontaining 4,916 grams of MDMA (with a purity of 75 per cent). The package wasaddressed to a "James Bell" at an address on Remuera Road, Auckland. In January2019, Mr Wang had rented a room at that address. He provided the landlord with thesame cell phone number as the contact number specified on the package. Mr Wang'srole was to collect the package from the delivery address and pass it on to a third party.[4] On 1 May 2019, Customs examined a further package. It contained430.1 grams of powder containing methamphetamine (with a purity of 77 per cent).This time the package was addressed to Andy Kun at an address on St Johns Road,Auckland. The package was not, however, for an Andy Kun. Rather, the specifiedcontact phone number belonged to Mr Wang. Prior to customs seizing the parcel,Mr Wang had agreed to collect it and deliver it to a third party. In addition, Mr Wang'sphone was used to pay the Customs duties, had the consignment details recorded onit, contained Uber records showing him at the address at the time of importation andcontained discussions with a member of an Asian crime syndicate about the package.[5] On 18 July 2019, Customs conducted a search at Mr Wang's home address inthe Auckland CBD. A variety of evidential material was located including two emptySpark SIM packs, a black backpack containing zip lock bags and rubber gloves,1 Misuse of Drugs Act 1975, s 6(1)(a) and (2)(a). The maximum penalty for this offence is lifeimprisonment.2 Section 6(1)(a) and (2)(b). The maximum penalty for this offence is 14 years' imprisonment.3 R v Wang [2020] NZDC 17142 [District Court sentencing notes].a black Huawei phone, a shipping document and a rented room key to an unknownlocation. Mr Wang was interviewed by Customs officers. He confirmed that thecell phone numbers referred to in [3] and [4] above belonged to him.The District Court decision[6] The Judge sentenced Mr Wang to five years and six months' imprisonment.The Judge took the importation of methamphetamine as the lead offence. He foundthat Mr Wang played a "lesser role" in the importation and that he "performed a limitedfunction under direction".4 His involvement was as a result of naivety. The Judgenoted that 430.1 grams of methamphetamine is near the top end of band 3 in theguideline judgment of Zhang v R.5 He then stated that "[b]and 3 in Zhang stipulates astarting point sentence of eight to 15 years," before concluding that Mr Wang'sinvolvement justified a starting point of eight years' imprisonment in respect of theimportation of methamphetamine.6 The Judge further explained that:7The starting point sentence I have imposed is based on Mr Wang's lesserrole. That is why I have imposed a starting point sentence of eight years whichis at the bottom end of band 3 for the methamphetamine [7] The Judge's understanding that eight years' imprisonment was at the bottomend of band 3 in Zhang is incorrect. Band 3 in the predecessor guideline judgment ofR v Fatu was from eight to 15 years' imprisonment.8 Band 3 in Zhang, however, isfrom six to 12 years' imprisonment.9 The Crown sentencing submissions in theDistrict Court included a table which had the Fatu bands in one column and the Zhangbands in the adjacent column. It seems that the Judge may have inadvertently readfrom the wrong column.[8] As for the MDMA charge, the Judge noted that 4,916 grams fell withincategory 2 of R v Wallace, which suggests a starting point of between five and eightyears' imprisonment.10 He found that the commercial importation of MDMA on a4 At [36].5 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].6 District Court sentencing note, above n 3, at [34].7 At [37].8 R v Fatu [2006] 2 NZLR 72 (CA).9 Zhang v R, above n 5, at [125].10 District Court sentencing notes, above n 3, at [35] citing R v Wallace [1999] 3 NZLR 159 (CA).substantial scale warranted an uplift of three years to the starting point.11 This broughtthe total starting point to 11 years' imprisonment. This starting point took into accountMr Wang's limited role in the operation.12[9] The Judge then applied the following discounts for Mr Wang's personalmitigating factors:(a) a five per cent discount for remorse;13(b) a 10 per cent discount for having no prior convictions;14(c) a 10 per cent discount for youth;15(d) a 20 per cent discount for his guilty plea;16 and(e) a deduction of six months for the period of time spent on electronicallymonitored bail.17[10] This resulted in an end sentence of five years and six months' imprisonment.18Was the starting point for the methamphetamine offending too high?[11] Mr Wimsett submitted that, given Mr Wang's lesser role in the offending andhis youth, the Judge should have shifted between bands and adopted a starting pointtowards the lower end of band 2 of Zhang (two to nine years' imprisonment).19He suggested that, if this approach were taken, an appropriate starting point for themethamphetamine offending would be four years' imprisonment.11 At [35].12 At [36].13 At [40].14 At [40].15 At [40].16 At [45].17 At [46].18 At [47].19 Zhang v R, above n 5, at [125].[12] In Zhang, this Court described three broad categories of role inmethamphetamine offending:20First (and attracting a more substantial scale) there is the "leading role".This applies where the offender is directing or organising buying and sellingon a commercial scale and/or is closely connected to product source and/orhas an expectation of substantial financial gain. The second is the "significantrole". That is where the offender has an operational or management functionwithin a chain, has subordinates (who may have been recruited or intimidatedby the offender) and/or is motivated by financial or other advantage. The thirdtier is the "lesser role". Here the offender will probably have performed alimited function under direction and/or may have been engaged by duress,naivety or other vulnerability.[13] Mr Wimsett submitted that Mr Wang's role was a lesser, or "third tier" role.He submitted that R v Fangupo was broadly analogous.21 In that case, Downs Jadopted "a generous approach" in respect of two defendants, Mr Ikuia and Mr Finau,to recognise "the striking differences" between them and the leaders of the operation.22[14] Mr Ikuia helped import 449 grams of methamphetamine by providing abusiness address for a package in exchange for $5,000.23 He was described as"nothing more than a pawn".24 Given Mr Ikuia's "very modest role and naivete",Downs J adopted a starting point of five years' imprisonment.25[15] Mr Finau helped import at least 5.1 kilograms of methamphetamine byproviding addresses for packages to be sent.26 Those addresses were his own addressand the address of a family member. Mr Finau was "barely competent".27 Downs Jadopted a starting point of eight years' imprisonment, recognising that but for theinfluence of others, Mr Finau would never have been drawn into the offending.2820 At [115].21 R v Fangupo [2019] NZHC 2896. The decision was partially overturned on appeal in Fangupo vR [2020] NZCA 484, but not with respect to the defendants' sentences that are relevant to thepresent case.22 At [33].23 At [23].24 At [23].25 At [32].26 At [22].27 At [22].28 At [31].[16] Another defendant in related proceedings, Mr Singh, successfully appealed hissentence.29 Mr Singh had been sentenced earlier than his co-offenders, when the Fatuguidelines applied.30 He subsequently appealed his sentence on the basis of disparitywith Mr Finau's sentence.31 Mr Singh had a similar role in importing packages to hishome address containing a total of 4.45 kilograms of methamphetamine, in exchangefor $10,000.32 He was naive and did not know of the quantity of methamphetamineinvolved.33 This Court allowed the appeal and adopted a starting point of eight years'imprisonment.34[17] Mr Wang's role in the present offending is arguably somewhat greater than theoffenders in Fangupo, given that his phone was used to pay the Customs duties, hadthe consignment details recorded on it and contained discussions with a member of anAsian crime syndicate about the package. Nevertheless, Mr Wang's role in theoperation was still fairly limited, having regard to the indicia set out in Zhang.35He was to receive little financial reward. His involvement stemmed from naivety andexploitation, and he was afraid of those who spurred his involvement because oftheir gang background. While Mr Wang had some logistical role in importing thepackage, it remained at the direction of those in the crime syndicate. Mr Wang's roleclearly still fits within the lesser role category of Zhang.[18] In terms of the quantity of drugs imported, Mr Finau and Mr Singh eachimported over 10 times the quantity of methamphetamine (5.1 and 4.45 kilogramsrespectively) that Mr Wang did (430.1 grams). Zhang recognises that quantity"remains a reasonable proxy both for the social harm done by the drug and the illicitgains made from making, importing and selling it".3629 Singh v R [2020] NZCA 211.30 At [2].31 At [5]–[7].32 At [1].33 At [1].34 At [20].35 See Zhang v R, above n 5, at [126].36 At [103].[19] Mr Ikuia imported a similar quantity of methamphetamine to Mr Wang, thatbeing 449 grams (slightly greater than Mr Wang's 430.1 grams). However, Mr Wang'sgreater involvement must be recognised.[20] Taking these factors into account, together with the Judge's stated intention toadopt a starting point at the bottom of band 3 of Zhang, it is our view that a startingpoint of six years' imprisonment is appropriate.Was the uplift applied for the MDMA offending appropriate?[21] The Judge found that the commercial importation of MDMA on a substantialscale warranted an uplift of three years to the starting point.37 Mr Wimsett submittedthat an uplift of 12 months' imprisonment for the MDMA offending would have moreappropriately reflected the totality of the offending.[22] We accept the Crown's submission, however, that the Judge did not err inassessing the appropriate starting point as six years' imprisonment for the MDMAoffending, and then deducting three years for totality. A starting point of six years waswithin range, albeit given the quantity involved it was arguably towards the lower endof the available range.38[23] As for totality, the MDMA offending is similar in nature to themethamphetamine offending and Mr Wang's role in the operation was similar.However, the offending occurred at a separate time, involved the logisticalmanagement and importation of another package, and the quantity of MDMAimported was much greater than the quantity of methamphetamine imported. Giventhese factors, a three-year uplift was within range.Was the discount applied for youth inadequate?[24] The final issue raised by the appeal is whether the discount applied forMr Wang's youth was inadequate.37 District Court sentencing notes, above n 3, at [35].38 See R v Wallace, above n 10, at [31]; R v Dixon [2008] NZCA 52 at [72]–[75]; Winkels v Police[2017] NZHC 2944 at [7] and [41]; and R v Kavaleros HC Auckland CRI-2009-404-384,12 August 2011 at [8] and [12]–[14].[25] The MDMA offending occurred shortly before Mr Wang's 20th birthday. Themethamphetamine offending occurred approximately three months later. Mr Wimsettsubmitted that a 10 per cent discount for youth was inadequate. He noted that s 6(4)of the Misuse of Drugs Act 1975 expressly recognises that young people (under 20 atthe time of the offending) can be dealt with differently from older offenders and thata sentence of imprisonment is not always appropriate. He submitted that a discountof 20 per cent was appropriate.[26] In Churchward v R, this Court noted that adolescents often have a reducedability to make wise judgements, a greater propensity for risk, and a susceptibility tonegative influences.39 However, the effect of youth in sentencing can vary:40 the fact that an offender is a young person can sometimes be given radicaleffect on sentence, unconstrained by any normative percentage, even whereoffending is serious. In other cases that is not possible. The young age of theoffender cannot be accorded presumptive, let alone paramount, weight.The objective seriousness of the offending, the young person's part in it,anything aggravating and otherwise mitigating must also be weighed.[27] In this case, it is our view that Mr Wang's youth warranted a somewhat greaterdiscount. Mr Wang's age and immaturity appears to have played a significant factorin the offending. The observations made by this Court in Churchward clearly applyto Mr Wang's conduct in this case. In our view, the appropriate discount for Mr Wang'syouth is 15 per cent.[28] Reducing the starting point for the methamphetamine offending to six years'imprisonment and increasing the youth discount to 15 per cent results in an endsentence of four years' imprisonment.[29] Mr Wimsett submitted that s 6(4) of the Misuse of Drugs Act, correctlyinterpreted, permits the imposition of a home detention sentence on youth offenderseven where their sentence of imprisonment would normally be more than two years.However, even if that were so, such a sentence could not be justified in Mr Wang'scase, given the seriousness of his offending.39 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77]–[81].40 Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [96].Result[30] The appeal is allowed.[31] The sentence of five years and six months' imprisonment is quashed.A sentence of four years' imprisonment is substituted.Solicitors:Crown Law Office, Wellington for Respondent