CHAN v R [2020] NZCA 486

CHAN v R [2020] NZCA 486 [15 October 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA587/2019[2020] NZCA 486BETWEEN YUEN CHEUNG CHANAppellantAND THE QUEENRespondentHearing: 7 October 2020Court: Gilbert, Mallon and Ellis JJCounsel: P K Hamlin for AppellantC Ure for RespondentJudgment: 15 October 2020 at 9.30 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The application to adduce further evidence is granted.C The appeal against sentence is allowed.D The sentence of 10 years and 11 months' imprisonment with a minimumperiod of imprisonment of 50 per cent is set aside. A sentence of nine yearsand eight months' imprisonment with a minimum period of imprisonment of50 per cent is substituted.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] Mr Chan pleaded guilty to conspiring to manufacture methamphetamine,possession of material with intent to manufacture methamphetamine and possessionof equipment with intent to manufacture methamphetamine. He was sentenced byGordon J to 10 years and 11 months' imprisonment and ordered to serve a minimumperiod of imprisonment of 50 per cent.1 This sentence was constructed by takinga starting point of 13 years and 10 months' imprisonment, allowing a two-monthdiscount to recognise the difficulties Mr Chan would face as a foreign national servinga prison sentence in New Zealand and allowing a 20 per cent discount for his guiltypleas.2[2] Mr Chan now appeals against his sentence. He contends that a discount oughtto have been allowed for his previous good character and the discount to recognise hisdifficulties as a foreign national was inadequate.[3] Mr Chan's appeal was filed well out of time. However, the delay has beenexplained. There is no prejudice to the Crown and it does not oppose the applicationto extend time for the appeal. We are satisfied that it is in the interests of justice forthe appeal to be determined on its merits. An extension of time is granted accordingly.[4] Mr Chan applies for leave to adduce further evidence in support of his appeal,being affidavits sworn by his wife and mother. This evidence provides furtherinformation about Mr Chan's personal circumstances in support of his contention thata good character discount ought to have been allowed. We did not apprehend there tobe any objection from the Crown to the receipt of this additional material.The evidence appears to be credible and cogent. We accept there would have beendifficulty obtaining the evidence from Laos and Hong Kong and arranging for it to betranslated in time for sentencing. Even if the evidence is not strictly fresh, we areprepared to receive it in the circumstances.The facts[5] While there is no challenge to the starting point adopted by the Judge, wecommence by summarising the facts of the offending. This is necessary because1 R v Chan [2017] NZHC 2924 [Sentencing judgment].2 At [12].the ultimate question on appeal is whether the end sentence was appropriate in allthe circumstances, not how it was constructed.[6] In brief, Mr Chan and two others made preparatory arrangements forthe manufacture of a very large quantity of methamphetamine. They took delivery of160 litres of t-BOC methamphetamine3 imported from Hong Kong. This quantity wassufficient to enable the extraction of approximately 46 kilograms of puremethamphetamine. They also took delivery of various items of equipment needed forthe extraction process. Mr Chan and his co-offenders arranged for the t-BOCmethamphetamine and equipment to be taken to a garage at the property where one ofMr Chan's co-offenders was living. The operation did not progress further becausethe police, who had been keeping Mr Chan and his co-offenders under surveillance,intervened and arrested them.[7] The following, more detailed, summary is drawn from the agreed summary offacts to which Mr Chan pleaded guilty.[8] On 28 January 2017, a consignment labelled "dishwashing liquid" arrived inNew Zealand from Hong Kong. On analysis by the New Zealand Customs Service on8 February 2017, a number of the boxes in the consignment were found to containt-BOC methamphetamine. t-BOC methamphetamine was not classified as acontrolled drug under the Misuse of Drugs Act 1975, nor was it controlled underthe Medicines Regulations 1984.[9] The police arranged delivery of the consignment on 15 February 2017.Three days later, Mr Chan's two co-offenders, Thammanoun Mingsisouphanh andShui Tong Wong, arranged for the consignment to be uplifted and put into storage ata storage unit in New Lynn. Mr Mingsisouphanh had rented this storage unit inMr Wong's name the previous day.[10] Mr Chan flew to Auckland from Hong Kong on 19 February 2017.On 22 February 2017, he and Mr Wong went to the storage unit, removed the contents3 t-BOC stands for tert-butoxycarbonyl. It is used to chemically camouflage methamphetamine toavoid detection on importation.of the boxes and moved the boxes around. The following day, Mr Chan and Mr Wongtravelled in Mr Wong's vehicle to visit several properties advertised for rent aroundAuckland.[11] Mr Chan flew from Auckland to Hong Kong at 9.50 am on 27 February 2017.That same day, a package arrived by air into New Zealand. This was found to containa rotary evaporator used for the conversion of t-BOC methamphetamine intomethamphetamine. Mr Chan's co-offenders took this package to the same storage uniton 2 March 2017, the day it was delivered. The police conducted two separate covertsearches of the storage unit later that day and found significant quantities ofhydrochloric acid and methanol required for the conversion process.[12] On 11 March 2017, Mr Chan returned to New Zealand, this time travellingfrom Kuala Lumpur. That same day, a second package arrived by air intoNew Zealand. Contrary to the description on the invoice, this package contained anagitator, also intended to be used in the conversion process. Two days later, on13 March 2017, a third package arrived by air into New Zealand containing varioustypes of glassware and other equipment to be used in the conversion process.[13] On 14 March 2017, Mr Chan and Mr Mingsisouphanh took delivery ofthe agitator and loaded it into Mr Mingsisouphanh's vehicle. About an hour later,Mr Wong took delivery of the third package containing the glassware and otherequipment. All of these items were then placed in a rental van and taken to an addressin Lynfield, Auckland where they were unloaded into a garage. The three of them thenwent to the storage unit in New Lynn and loaded the consignment of t-BOCmethamphetamine into the rental van and transported it back to the garage in Lynfield.[14] The defendants were arrested later that day. Approximately $250,000 in cashwas found at Mr Wong's home address together with one ounce of methamphetamineand drug utensils. Mr Wong pleaded guilty to additional charges (beyond those facedby Mr Chan) arising out of this offending. Six grams of methamphetamine were foundon Mr Mingsisouphanh's person. Various substances used for producingmethamphetamine were found at Mr Mingsisouphanh's address when searched.He also faced additional charges for this offending.[15] There is no challenge to the starting point adopted of 13 years and 10 months'imprisonment for Mr Chan's involvement in this enterprise. By comparison, insentencing Mr Mingsisouphanh, Venning J considered that a starting point of 12 yearsand six months' imprisonment would be appropriate for his role in the samemethamphetamine offending.4 Mr Chan was considered to have played a moresignificant role because of his repeated travel to and from Hong Kong wherethe t-BOC methamphetamine originated.5 Lang J adopted the same starting point forMr Wong of 12 years and six months' imprisonment on the charge of conspiring tomanufacture methamphetamine.6Should there have been a discount for Mr Chan's previous good character?[16] Mr Chan was born in Hong Kong in March 1975. He relocated with his parentsand brother to Canada in 1992, when he was 17. He lived in Canada from that timeuntil his arrest in 2017. Mr Chan is now aged 45. He was 42 at the time ofthe offending.7[17] Apart from a conviction for petty theft (under CAD 1,000) in Canada when hewas aged 18, Mr Chan has no previous convictions of any kind. It appears fromthe affidavits that have been filed that Mr Chan has otherwise been of good characterand supportive of his wife and family.[18] Modest discounts were given to both Mr Mingsisouphanh and Mr Wong atsentencing to reflect that they were first offenders. Lang J described this asthe principal mitigating factor justifying a global discount of nine months forMr Wong.8 Because Mr Wong was sentenced for additional offending, his overallstarting point before adjustment for personal mitigating factors was 13 years'imprisonment.9 The nine month global discount therefore equated to a little less than4 R v Mingsisouphanh [2018] NZHC 532 at [22].5 At [20].6 R v Wong [2018] NZHC 1973 at [19].7 Mr Chan was 12 days shy of his 42nd birthday at the date of the conspiracy. He turned 42 beforethe other offences occurred.8 R v Wong, above n 6, at [24].9 At [21].six per cent. Mr Mingsisouphanh received a lesser global discount of six months forpersonal mitigating factors, including that he was a first-time offender.10[19] Gordon J allowed no discount for the fact that Mr Chan was effectivelya first-time offender. Two reasons were given. First, the Court did not have anyofficial record of Mr Chan's criminal history in Hong Kong and Canada.Secondly, and more importantly, the Judge stated that a mere absence of previousconvictions does not necessarily justify a discount for previous good character.The Judge said that more is required, particularly in the context of commercial drugoffending, where the principle of deterrence carries significant weight.11[20] However, as this Court has now clarified in Zhang v R, personal mitigatingcircumstances must be given due regard at stage two of the sentencing exercise in allinstances of serious drug offending, as in any other offending.12 Mr Chan's prior goodrecord is not in dispute. In our view, this factor required some recognition inthe sentencing analysis. We consider a modest discount ought to have been allowed,similar to the discount Mr Wong received, in the order of five per cent.Was the foreign national discount inadequate?[21] The Judge said there was no evidence that Mr Chan suffered from anyparticular language difficulties. In any event, the prison authorities would be able tomake adequate arrangements to ensure he could understand what he needed to.Nor did the Judge consider that separation from his wife and children was a factorcarrying any significant weight. The Judge did, however, accept that his family maybe unable to visit him in prison and recognised this by allowing what she described as"small discount", of two months.13 This equated to a 1.2 per cent discount. Ms Ure,for the Crown, responsibly acknowledges that this discount may warrant furtherconsideration by the Court.10 R v Mingsisouphanh, above n 4, at [30]; upheld on appeal in Mingsisouphanh v R [2018] NZCA571.11 Sentencing judgment, above n 1, at [5].12 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [135]–[136].13 Sentencing judgment, above n 1, at [11].[22] Mr Chan's wife and two young children, aged five and three, now live in Laos.Prior to Mr Chan's arrest, his wife said he worked hard to support them as an employedmotor mechanic while she raised their children at home. She says he was a good fatherand was regarded as a good employee at his place of work. She says she is now ina very difficult position, having to support herself and raise the two children alone.Mr Chan's father died earlier this year. His mother and sister remain in Hong Kong.[23] Mr Chan has no family or friends in New Zealand. Apart from his offending,he has no connection with New Zealand. It appears that his grasp of English is limited.We accept that serving a lengthy term of imprisonment will be particularly hard forMr Chan because he will be isolated from his family. It appears there is no realisticprospect of him being able to see his wife or children until he is released. He maynever see his mother again and his father has died since he was imprisoned.We consider the combination of these circumstances — language difficulty, social andcultural isolation and almost complete lack of family contact and support — mean thata lengthy sentence of imprisonment will be disproportionately severe in Mr Chan'scase. The significant hardship that can be caused to foreign national prisoners whoface these types of difficulties is well-recognised and documented.14[24] We therefore agree that the Judge was right to allow a discount to recognisethis personal mitigating factor. However, we consider the discount allowed for it wastoken and inadequate. We agree with Mr Hamlin, for Mr Chan, that a discount of notless than five per cent was required for this factor.[25] We note for completeness that Mr Hamlin placed some reliance on Mr Chan'ssecurity classification which takes account of the fact he is subject to a deportationorder. Mr Hamlin says the security classification limits the range of programmes andwork opportunities available to Mr Chan in prison and a sentencing discount shouldbe allowed for this. We do not consider this is a personal mitigating factor and wehave not taken it into account.14 See for example HM Inspectorate of Prisons Foreign national prisoners: a thematic review(July 2006) and Magali Barnoux and Jane Wood, "The Specific Needs of Foreign NationalPrisoners and the Threat to Their Mental Health from being Imprisoned in a Foreign Country"(2013) 18 Aggression and Violent Behaviour 240.[26] The chief executive of the Department of Corrections has the responsibility ofensuring that every prisoner subject to a sentence of imprisonment for a termexceeding three months is assigned a security classification reflecting the risk posedby that prisoner. The assessment must reflect the level of risk posed by the prisonerinside or outside the prison, including the risk of escape and the consequent risk tothe public.15 The classification is not static and must be reviewed every six months orwhenever there is a significant change in the prisoner's circumstances.16 Any prisonerwho is dissatisfied with his or her classification may apply to the chief executive tohave the classification reconsidered. Any such application must be reconsideredpromptly.17 This process appears to be operating correctly in Mr Chan's case.His preliminary security classification based on internal and external risk scores wasassessed as "high". However, this was overridden and is currently set at "lowmedium". The plan for Mr Chan records that he is working towards achieving asecurity rating of "low".[27] Security classifications concern the safe management of prisoners and are notrelevant to sentencing. To illustrate this, it would be incongruous if a maximumsecurity prisoner, so assessed because he or she poses great danger to other prisonersand the community, would be entitled to a sentencing discount to reflect the greaterrestrictions that follow the consequently high classification whereas a prisoner atthe other end of the spectrum would receive no such discount.Conclusion[28] In summary, we accept there was an error in the sentence and a differentsentence should be imposed.18 The appeal against sentence must therefore be allowed.The total discount for personal mitigating factors should be 30 per cent, being five percent for previous good character, five per cent for the difficulties Mr Chan will faceserving a lengthy period of imprisonment as a foreign national and 20 per cent for his15 Corrections Act 2004, s 47(1).16 Section 47(3).17 Section 48(2).18 Criminal Procedure Act 2011, s 250(2).guilty pleas. Applying the two-step methodology approved in Moses v R, the endsentence should therefore be one of nine years and eight months' imprisonment.19Result[29] The application for an extension of time to appeal is granted.[30] The application to adduce further evidence is granted.[31] The appeal against sentence is allowed.[32] The sentence of 10 years and 11 months imprisonment with a minimum periodof imprisonment of 50 per cent is set aside. A sentence of nine years and eight months'imprisonment with a minimum period of imprisonment of 50 per cent is substituted.Solicitors:Crown Law Office, Wellington for Respondent19 Moses v R [2020] NZCA 296.