GAN v R [2017] NZCA 569

GAN v R [2017] NZCA 569 [7 December 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA562/2016[2017] NZCA 569BETWEEN YIXIN GANAppellantAND THE QUEENRespondentHearing: 27 November 2017Court: Winkelmann, Venning and Duffy JJCounsel: T Cooper and I Archibald for AppellantE Hoskin for RespondentJudgment: 7 December 2017 at 10 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal against sentence is allowed.C The minimum period of imprisonment of eight years and four months isquashed and replaced with a minimum period of seven years.____________________________________________________________________REASONS OF THE COURT(Given by Venning J)[1] Following a trial before Downs J and a jury in the High Court at Auckland,Ms Gan was convicted of two charges of importing pseudoephedrine and one chargeof possessing pseudoephedrine for the purpose of supply. Downs J sentenced her to14 years' imprisonment with a minimum period of imprisonment (MPI) of eight yearsand four months' imprisonment.1[2] Ms Gan does not challenge the end sentence nor the imposition of an MPI. Shechallenges the length of the MPI. At eight years and four months it was 60 per cent ofthe end sentence. Ms Gan submits the length of the MPI was manifestly excessiveand the appropriate MPI in the present case was 50 per cent or seven years.[3] The appeal was filed out of time. No issue is taken with that by the Crown.There is no prejudice. The application for an extension of time to appeal is granted.Ms Gan's offending[4] The first two charges (importation of pseudoephedrine and possession ofpseudoephedrine for supply) related to the importation by Ms Gan of at least250 kilograms of ContacNT from China to New Zealand in October 2013.[5] Ms Gan disguised the importation through the use of her legitimate business inthe course of which she imported goods, largely foodstuffs, to New Zealand fromChina. The goods were ultimately destined for Tonga. While in transit inNew Zealand the ContacNT, falsely labelled as potato starch or corn starch, wasremoved and replaced with packages of actual potato starch or corn starch.The replaced goods were then forwarded to Tonga while the drugs remained inNew Zealand. The Judge assessed the value of the ContacNT converted topseudoephedrine at approximately $8,900,000.2[6] The third charge (importation of pseudoephedrine) was a representativecharge. Earlier, between 21 May 2012 and 11 June 2013, Ms Gan had arranged fourshipments from China to New Zealand. The Judge was unable to ascertain how muchContacNT had been brought in or whether it was brought in on more than oneoccasion. However, he found Ms Gan had imported a "not inconsiderable commercial1 R v Gan [2016] NZHC 2349.2 At [7].quantity".3 That conclusion was supported by the fact that during that period not lessthan $3,201,000 in cash was deposited to Ms Gan's bank accounts.Sentencing decision[7] In sentencing Ms Gan the Judge said that she was the primary architect, at leastin New Zealand, of the October 2013 importation.4 Taking a starting point of 13 years'imprisonment on the October 2013 importation, the Judge then uplifted that bythree years to reflect the totality of her offending.5 In mitigation he deductedsix months for the fact Ms Gan was a first-time offender, 12 months because she hadvoluntarily returned to New Zealand from China to face the charges, and six monthsfor her personal circumstances, particularly that her family (including three youngchildren) remained in China.6 He did note, however, that she was fluent in Englishand well-adjusted to western life.[8] The Judge then found that the criteria for the imposition of an MPI were madeout. He accepted that Ms Gan was at a low risk of reoffending but considered thatparole eligibility after only one-third of her sentence would be inconsistent with theimperatives of denunciation and deterrence, particularly general deterrence in thecontext of large-scale commercial drug trafficking.7[9] The Crown had suggested an MPI of 50 per cent should be imposed, consistentwith the MPI imposed in relation to Mr Shao and Mr Tran, who dealt in the drugs oncethey had been imported. But the Judge concluded that Ms Gan's role was greater thantheirs and that, but for her, the drugs may not have arrived in New Zealand at all. Forthose reasons he imposed an MPI of 60 per cent.8Appeal grounds[10] In support of the appeal Ms Cooper submitted the MPI of 60 per cent wasmanifestly excessive and the Judge erred by failing to have regard to Ms Gan's3 At [11].4 At [12].5 At [23].6 At [24]–[26].7 At [30].8 At [31].personal circumstances when fixing the length of the MPI. Ms Cooper submitted thecorrect MPI was seven years, which was 50 per cent of the sentence.[11] Counsel for the Crown, Ms Hoskin, accepted the Crown had suggested an MPIof 50 per cent at sentencing but submitted that an MPI of 60 per cent was available tothe Judge.Discussion[12] In an appeal against sentence the appellant must show that there was an errorin the sentence, and that a different sentence should be imposed.9 That can be shownwhere the sentence is manifestly excessive.10[13] Ms Cooper submitted that the criteria for imposition of an MPI of more than50 per cent had not been made out. She noted that an MPI of more than 50 per centhas only been imposed in a limited number of cases. As this Court observed in Choi vR, cases where the MPI has exceeded 50 per cent tend to exhibit notable features suchas a high level of responsibility in the operation, offending whilst in jail, or thepresence of associated offending.11 In the present case the Judge identified thatMs Gan was the primary architect of the importation. Her level of responsibility inthe operation and the extensive and continuing nature of the offending supportedthe Judge's view that an MPI of more than 50 per cent was required in Ms Gan's case.[14] Next Ms Cooper submitted that the Judge had failed to consider Ms Gan'spersonal circumstances when determining the MPI, as is required.12 She notedthe Judge had not referred expressly to Ms Gan's personal circumstances.[15] But as this Court accepted in Choi v R, when fixing an MPI a Judge is notrequired to refer specifically to the factors already canvassed in setting a determinate9 Criminal Procedure Act 2011, s 250.10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].11 Choi v R [2011] NZCA 237, (2011) 25 CRNZ 262 at [18].12 R v Gordon [2009] NZCA 145 at [46]; Choi v R, above n 11, at [5]; and Carpenter v R [2013]NZCA 395 at [22].sentence.13 The issue is whether the reasoning behind the decision for the MPI isapparent.[16] While Downs J did not expressly refer again to Ms Gan's mitigatingcircumstances when dealing with the imposition of the MPI, he had referred tomitigating circumstances in the three paragraphs immediately before beginning hisconsideration of the MPI. Ms Gan's personal circumstances would have been withinhis contemplation when fixing the appropriate minimum term. The Judge alsorecorded that the pre-sentence report noted an additional personal factor, namely thatMs Gan was at low risk of reoffending, before he directed himself to the relevantstatutory considerations set out in s 86 of the Sentencing Act 2002.[17] The last point Ms Cooper identified was Ms Gan's return to New Zealand toface the charges. In fixing the finite sentence the Judge had referred to the fact Ms Ganhad voluntarily returned to New Zealand from China to face the charges, and therebyavoided the need for potentially protracted extradition proceedings. We consider thatfeature, in addition to Ms Gan's personal circumstances, was also particularly relevantto the term of the MPI. Ms Gan's voluntary surrender to New Zealand for trial was anespecially significant feature of her case and deserved more weight than the Judgeapparently gave it at the stage of the imposition of the MPI. It warranted a reductionfrom what otherwise would have been an appropriate MPI of 60 per cent.[18] For that reason the appeal must be allowed.Result[19] The application for an extension of time to appeal is granted. The appealagainst sentence is allowed. The MPI of eight years and four months is quashed andreplaced with an MPI of seven years.Solicitors:Crown Law Office, Wellington for Respondent13 Choi v R, above n 11, at [13].