TAN & ORS v R [2023] NZCA 446

TAN & ORS v R [2023] NZCA 446 [14 September 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA14/2020[2023] NZCA 446BETWEEN ZHI ZHAO TANAppellantAND THE KINGRespondentCA15/2020BETWEEN CHI WA LEUNGAppellantAND THE KINGRespondentCA105/2020BETWEEN HAO LIAppellantAND THE KINGRespondentCA396/2020BETWEEN WAI FAT WONGAppellantAND THE KINGRespondentCA424/2020BETWEEN YIU WAI CHIANGAppellantAND THE KINGRespondentCA605/2020BETWEEN TAI FI CHIUAppellantAND THE KINGRespondentHearing: 26–27 October 2022 (further submissions received 13 March2023)Court: Cooper P, Venning and Palmer JJCounsel: L O Smith for Appellant in CA14/2020M Kan for Appellant in CA15/2020M W Ryan and J E Tullock for Appellant in CA105/2020D B Stevens for Appellant in CA396/2020M J Taylor-Cyphers for Appellant in CA424/2020A M Simperingham and K C Leung for Appellant in 605/2020B J Thompson and P R McNabb for RespondentJudgment: 14 September 2023 at 11.00 amJUDGMENT OF THE COURTA The applications by Hao Li, Yiu Wai Chiang and Tai Fi Chiu to extend thetime for appealing are granted.B The application by Hao Li to adduce further evidence is declined.C The conviction appeals by Hao Li and Tai Fi Chiu are dismissed.D The sentence appeal of Wai Fat Wong is allowed in part and the order thathe serve a minimum period of imprisonment is set aside.E All other sentence appeals are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Cooper P)Table of ContentsPara NoIntroduction [1]The offending [10]The conviction appeals [33]Hao Li [33]Tai Fi Chiu [51]The sentence appeals [66]Sentencing for methamphetamine offending [68]Sentencing Judge's approach [78]Ricky Leung [80]Wai Fat Wong [83]Tai Fi Chiu [113]Hao Li [125]Yiu Wai Chiang [140]Zhi Zhao Tan [154]Chi Leung [171]Result [183]Introduction[1] The six appellants were each convicted of charges connected to their respectiveroles in offending relating to the importation of significant amounts ofmethamphetamine.[2] On 30 January 2019, Tai Fi Chiu pleaded guilty to one charge of importingmethamphetamine,1 and two charges of possession of methamphetamine for supply.2On 8 February 2019, Yiu Wai Chiang pleaded guilty to one charge of possession ofmethamphetamine for supply.3 Wai Fat Wong pleaded guilty to three charges ofimporting methamphetamine,4 and two of possession of methamphetamine for supplyon the morning of the trial, 11 February 2019.51 Misuse of Drugs Act 1975, s 6(1)(a) and (2)(a).2 Section 6(1)(f) and (2)(a).3 Section 6(1)(f) and (2)(a).4 Section 6(1)(a) and (2)(a).5 Section 6(1)(f) and (2)(a).[3] The other defendants were found guilty by the jury. Hao Li, Zhi Zhao Tan andChi Wa Leung were each convicted of one charge of possession of methamphetaminefor supply.6 Chi Leung shares a surname with a co-offender,Mr Ricky Tat Choi Leung, and will be referred to by his first name for clarity.[4] The trial Judge, Moore J sentenced the appellants to terms of imprisonmentranging from 16 years and two months to 25 years and six months (the principalsentencing judgment).7 One of the appellants, Mr Wong, was sentenced separatelyfrom the others.8 Ricky Leung, who was sentenced to 27 years six months'imprisonment, has not appealed.[5] Ms Li and Mr Chiu appeal against both their conviction and sentence.Chi Leung originally appealed his conviction but abandoned his conviction appeal on26 November 2020. The remaining appellants appeal against sentence only.[6] The appeals of Ms Li, Mr Chiang and Mr Chiu were filed out of time by19 working days, seven and a half months, and ten months respectively. Theirapplications to extend the time for appealing have been explained and relate primarilyto difficulties they experienced in arranging legal representation while in custody,given language difficulties they encountered. Extensions of time are not opposed andin the circumstances the applications are granted.[7] This appeal was heard on 26 and 27 October 2022. At the time of sentencing,and also when the appeals were heard, this Court's decision in Zhang v R was theguiding authority on sentencing for methamphetamine-related offending.9[8] While our decision remained reserved, the Supreme Court issued its judgmentin Berkland v R.10 The Supreme Court judgment stated that the application of itsdecision amended the "significant" role profile described by this Court in Zhang.11The Supreme Court said the amended significant role profile should apply not only to6 Section 6(1)(f) and (2)(a).7 R v Leung [2019] NZHC 3299 [principal sentencing judgment].8 R v Wong [2020] NZHC 1654 [Wong sentencing judgment].9 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.10 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.11 At [72].sentences imposed after the issue of the judgment, but also to all sentencing appeals"currently on foot".12 As the present appeals were clearly "on foot", we gave theparties the opportunity to make further written submissions on any implications of thesubstantive changes effected by Berkland.13 Those submissions have been providedand having considered them we are now in a position to issue our judgment on theappeals.[9] In the judgment below, we give a general account of the offending for whichthe appellants were convicted and sentenced. We then address the conviction appealsof Ms Li and Mr Chiu. Finally, we address the sentences imposed by the Judge in thecourse of dealing with each sentence appeal. For the reasons we give, Mr Wong'ssentence appeal is allowed in part. All other appeals are dismissed.The offending[10] The following account is largely based on the facts set out by Moore J in theprincipal sentencing judgment.14[11] The Crown's case was based on three importations of methamphetamine whichall arrived in New Zealand over a period of approximately one year. In the case ofeach importation, the methamphetamine was sourced from China. The total combinedweight of the drug imported was 267 kg. The Crown estimates that this amount ofmethamphetamine would have a retail value between $48 and $67 million. The Judgeconsidered that the total combined weight of the imported methamphetamine made itone of the largest importations this country had seen.15[12] The method of importation was as follows. Methamphetamine was dissolvedin gypsum, a concrete-like substance, which was poured into metal cases in the formof outdoor umbrella stands. Each stand was separately packaged and shipped toNew Zealand in a container, as part of larger consignments of outdoor furniture.12 At [72(b)].13 Tan v R CA14/2020, 7 February 2023 at [4].14 Principal sentencing judgment, above n 7, at [10]–[43].15 At [10].[13] The Judge identified three phases in which those involved in the importationparticipated.16 The first phase involved setting up the systems and "ground work" toland the drugs in New Zealand and clear them into storage ready for the second phase.The second phase involved securing a venue and equipment for the purpose ofextracting the drug from the gypsum. The third phase involved bringing those whowould undertake the extraction process into New Zealand.[14] Ricky Leung was described by the Judge as having "paved the way."17 He wasresponsible for setting up the systems to receive the drugs when they arrived inNew Zealand and made numerous visits here between April 2016 and September2017. For both his first and second visit Ricky Leung stayed for nine days beforereturning for a period of three months on 28 September 2016.[15] The first importation (of 48 kg) of methamphetamine took place on or before14 October 2016 when the first of the containers of outdoor furniture arrived. Therewere seven umbrella bases wrapped inside cardboard boxes. Each contained gypsumand methamphetamine. The importation was cleared by New Zealand CustomsServices (Customs Services) and later delivered to a storage unit in Parnell. Mr Leungleft the country on 25 November 2016, returning again for brief periods in June andJuly 2017. During a visit that began on 9 July 2017, he hired a storage unit inGrey Lynn.[16] The second importation (of 109 kg) took place around 14 August 2017. Onthis occasion, the methamphetamine was contained in 16 umbrella bases. On thisoccasion, the importation was intercepted and inspected by Customs Services. Thebases were tested, and methamphetamine was detected. The gypsum containing thedrug was removed and replaced with a substance of similar appearance. A smallquantity of methamphetamine was left in one of the bases and, on 23 August 2017, acontrolled delivery was made to the consignee's address; a storage facility inOnehunga. This shipment was received by an innocent agent acting on instructionsfrom Ricky Leung, who sent him money from China to cover costs.16 At [13].17 At [14]–[15].[17] On 11 September 2017, Messrs Chiu and Wong arrived in New Zealandtogether with Ms Li, on a flight from Hong Kong. The Judge described this as thesecond phase of the operation.18 The three hired a car and checked into a hotel, beforegoing to a storage facility in Takapuna. Mr Chiu signed a contract for the hire of astorage unit for the period from 12 September to 11 October 2017. Mr Wong's namewas given as an alternate contact person. The Judge found this storage facility wasplainly leased to house the third importation which at that time was en route toNew Zealand by boat.19[18] On 14 and 15 September, Ms Li and Mr Chiu made enquiries about rentalproperties. On 15 September Mr Chiu signed a one-month tenancy agreement on ahouse in Manurewa, to commence on 19 September. On 16 September 2017,Mr Ricky Leung arrived back in New Zealand from Hong Kong. He was met at theairport by the innocent agent he had been using from the outset of the operation.[19] On the following day, Ricky Leung and Mr Chiu were observed visiting andinspecting the storage unit in Grey Lynn which had been earlier rented by Mr Leung.Mr Chiu took photographs. Later that day, Ms Li and Mr Wong went to Noel Leeming,in Manukau City where they purchased a large "side-by-side freezer".20 Ms Li paidin cash.[20] Then, on 18 September Mr Tan, Chi Leung and Mr Chiang arrived together inAuckland on the same flight from Hong Kong. The Judge noted this was the thirdphase; "the arrival of the workers."21 Mr Wong and Ms Li met them at the airport andtook them into the city to a hotel.[21] Within hours, Mr Wong, Ms Li, Mr Chiu, Mr Chiang, Mr Tan and Chi Leunggot into a Toyota Estima (the Estima) which Mr Wong had hired a few days earlier.They drove to a shopping complex in Botany, where they purchased three largestainless steel cooking pots, three hot plates and a variety of other items capable ofbeing used to extract the drug from the gypsum substrate. They then drove to18 At [21].19 At [21].20 At [24].21 At [25].Bunnings Warehouse (Bunnings) in Botany. Mr Chiang, Mr Chiu, Mr Tan andMr Wong went into the shop while Ms Li and Chi Leung remained in the Estima.Plugs, duct tape, splash goggles, wrecking bars, chisels, hammers, angle grinders,wrenches, a multi-mixer tool and carpet protectors were purchased. The Judge notedthat those tools and the other items had obviously been bought for the purpose ofbreaking up the gypsum.22[22] Then, on the following day, 19 September 2017, the Manurewa tenancycommenced. Just after 9 am, the freezer which had been purchased two days earlierby Mr Wong and Ms Li was delivered to the property. Mr Wong and Ms Li werepresent to receive it and Mr Wong signed for it.[23] Later that morning, Ms Li and Mr Wong visited a refrigeration specialty shopin Greenlane where they purchased a vacuum pump. At another commercial premises,they bought two electric thermometers. Later, Ricky Leung picked up Mr Chiu in arental car. The two drove to the Onehunga storage unit where they removed six boxesfrom the container and placed them in the car. These were the boxes which had beenthe subject of the controlled delivery. The two men then drove back into the city.Mr Chiu got out of the car. Mr Chiang replaced him. Ricky Leung and Mr Chiangthen drove out to Botany and parked at the shopping mall where they unloaded the sixboxes. Ricky Leung then drove off without Mr Chiang. A few minutes later, theEstima arrived and stopped beside Mr Chiang and the boxes. Mr Wong was drivingand Ms Li was in the passenger seat. In the back were Mr Chiu, Mr Tan andChi Leung.[24] Although Ricky Leung had driven away, he did not leave the carparkimmediately. Instead, he drove to the rear of the shopping complex from where hecould observe that the cargo left on the road with Mr Chiang had been picked up. Hethen returned to the city.[25] Mr Chiu, Chi Leung and Mr Wong loaded the boxes into the back of the Estimabefore driving to the Manurewa house. Ms Li went inside while the others went to anearby park before returning to the house and unloading the boxes.22 At [27].[26] Mr Wong then left the Manurewa address in the Estima, driving Ms Li,Mr Chiu, Chi Leung and Mr Tan. Only Mr Chiang remained behind. Mr Wong droveto the Onehunga storage facility and unlocked the same container from which Mr Chiuand Ricky Leung had unloaded the six boxes earlier in the day. Ms Li remained in thecar, whilst the others opened the container and started to load boxes into the back ofthe Estima.[27] In the meantime, Mr Chiang started to open the boxes at the Manurewaproperty. Apparently alerted to something by their condition, he sent a text to Mr Tantelling him that there was "a situation". He told Mr Tan not to come back yet. Mr Tancould be seen communicating with those inside the container. He placed his hand ona box being carried by Chi Leung, who immediately returned it to the container. Theother men exited the container, unloaded the boxes from the back of the Estima andreturned them to the container. The container was locked before the Estima returnedto the city.[28] Mr Chiang sent another message to Mr Tan. He wanted to leave Manurewa.They both agreed that Mr Chiang should get a taxi before the Estima continued on intothe city. It stopped in Federal Street, and its occupants left the vehicle and dispersed.This was captured on CCTV footage. Mr Chiu ran away, but was pursued and caughtby police. Mr Tan, Ms Li, Mr Wong and Chi Leung were also apprehended.[29] Later that afternoon, Mr Chiang returned to the hotel by taxi. He andRicky Leung met at a nearby Chinese café before walking to the hotel where they werearrested.[30] The rooms in which they had been staying were searched. In the room sharedby Mr Wong and Ms Li, a suitcase containing documentation linked to theimportations was found. The property in Manurewa was later searched, and the sixboxes were located there. The top box appeared to have been opened. The newlypurchased freezer was seen in the laundry and in the spare room were the itemspurchased the day before at a cookware shop and at Bunnings.[31] On or about 13 October 2017, a further consignment of four items arrived inAuckland. Although the consignment was declared as dry-cleaning machines, itcontained various heavy-duty grinding equipment. The Judge noted that this wasplainly intended to assist with the extraction of the methamphetamine.23[32] The third drug importation (110 kg) arrived on approximately22 October 2017. As with the previous two, it contained a wide range of outdoorfurniture, including 17 umbrella bases. They were tested and found to containmethamphetamine dissolved in the gypsum substrate.The conviction appealsHao Li[33] Ms Li was convicted at the trial of possession for supply in respect to thesecond importation, 109 kg of methamphetamine. Her conviction appeal wasadvanced on the basis of a conflict of interest said to have arisen because her trialcounsel, Ms Pecotic, acted for both Ms Li and her husband Mr Wong.24 Mr Ryan forMs Li contends that, as a result of the conflict of interest, she was deprived of a fairtrial and a miscarriage of justice resulted.[34] There are two specific complaints made about Ms Pecotic's representation ofMs Li. First, it is said that she breached r 6.1 of the Lawyers and Conveyances Act(Lawyers: Conduct and Client Care) Rules 2008 by failing to advise Ms Li that sheshould be separately represented. This assumed importance because Ms Pecotic wasaware that Mr Wong intended to plead guilty as early as 10 September 2018 and, atthat point, Ms Li should have been advised to seek independent representation so thatMr Wong could be summonsed to give evidence in support of the appellant at the trial.Mr Ryan submits that this deprived Ms Li of corroborative evidence she could havecalled, consistent with Mr Wong's instructions that Ms Li was innocent and he wassolely responsible.23 At [42].24 As noted above, Mr Wong pleaded guilty on the morning of the trial after which Ms Pecotic actedsolely for Ms Li.[35] The second complaint made is that Ms Pecotic did not lead evidence fromMs Li that she had suffered abuse at the hands of Mr Wong, and was in fact a "batteredwoman".[36] There is an immediate difficulty with the first submission inasmuch asMr Wong's instructions to Ms Pecotic had been that he did not wish to give evidence.Mr Ryan submits that had Ms Li been independently advised, Mr Wong could havebeen summonsed and thereby compelled to give evidence at the trial. That howeveris contrary to s 73 of the Evidence Act 2006. Section 73 relevantly provides:73 Compellability of defendants and associated defendants incriminal proceedings(2) An associated defendant is not compellable to give evidence for oragainst a defendant in a criminal proceeding unless—(a) the associated defendant is being tried separately from thedefendant; or(b) the proceeding against the associated defendant has beendetermined.(3) A proceeding has been determined for the purposes of subsection (2)if—(a) the proceeding has been stayed or the charge against theassociated defendant has been withdrawn or dismissed; or(b) the associated defendant has been acquitted of the offence; or(c) the associated defendant, having pleaded guilty to, or havingbeen found guilty of, the offence, has been sentenced orotherwise dealt with for that offence.[37] It is plain that Mr Wong could not have been compelled to give evidence atMs Li's trial as, although he pleaded guilty on the morning of the trial, he had not beensentenced. Consequently, the proceeding against him was not one which had been"determined" in accordance with s 73(3)(c) of the Evidence Act.[38] In an affidavit sworn in support of the appeal, Ms Li recorded that she wasdisappointed by Ms Pecotic and complained that she had not properly advised herabout the risks of going to trial. Had she been properly advised about the strength ofthe Crown case and the likelihood she would be found guilty at the trial, she mighthave pleaded guilty at an earlier stage, especially if she had been made aware of theguilty plea discount. She mentioned that she had told Ms Pecotic that Mr Wong wascontrolling and that he abused her. She also drew attention to the fact that Ms Petoticspoke to her in English and had not brought an interpreter to their first meeting, despitethe fact that she did not speak English proficiently. She also recorded Ms Pecotic'sadvice that Mr Wong was "not a good witness to give evidence."[39] In her affidavit in response, Ms Pecotic recorded that she did not agree oraccept the statements made by Ms Li in her affidavit. Ms Pecotic recorded her viewthat Ms Li's English was very good, so that she did not see a need to have an interpreterat the first few meetings, but noted that in later meetings she had a Court-approvedInterpreter with her. Ms Li's instructions were that Ms Li had simply been inNew Zealand on a holiday and had no involvement in any of the offending. This wasa position with which Mr Wong agreed. Ms Pecotic noted that she had discussed withMs Li the fact that she was also acting for Mr Wong, and had explained that as Ms Li'shusband was likely to plead guilty, she would not be representing both of them at thetrial. She also told Ms Li that Mr Wong was "100% supportive of her", did not wanther to be convicted and wanted to take the sole blame for everything, although theCrown believed she was a willing participant so they would not withdraw the chargeagainst her.[40] Apart from the difficulty that Mr Wong did not wish to give evidence and wasnot compellable, it is most unlikely that Mr Wong's evidence would have assistedMs Li's defence. At the disputed facts hearing Mr Wong claimed that it was only afterhe arrived in New Zealand that he came to understand that he had become involved inan unlawful drug dealing operation. He attributed his involvement to naivety, anddenied he had a significant role. This evidence was found to lack credibility,25 andhad it been given at the trial, might well have adversely affected the jury's perceptionof Ms Li. However, as events transpired, she was able to, in Mr Wong's absence fromthe trial, give evidence that he had effectively led her astray. Her evidence includedthe following:25 Disputed facts judgment, above n 66, at [88]. usually in my household all the major matters are dealt with by myhusband, I usually don't deal with them. He was helping his friend out and Iwas following him here to take a holiday, I wasn't getting into his business. I was following my husband's words, doing whatever he told me to. I trusted my husband too much at the time, I have never doubted him.I have always been very obedient to my husband. I do everything, anythingthat he ask me to help him to do. I respect him and I trust him so I neverdoubted any reasons that he wants to do any things.I was not in control of this at all myself, so I was following my husband andhe goes, wherever he goes I follow him.I was just following my husband's instructions [41] In characterising herself as essentially misled by her husband, Ms Li was ableto rely on the fact that there was an age gap of 24 years between them, and as wasemphasised on her behalf by counsel in closing, she had no reason to doubt theinnocent explanation Mr Wong had allegedly given her for why they had come toNew Zealand. Her account enabled Ms Pecotic to tell the jury that Ms Li hadessentially been duped into coming to New Zealand. The prospect that Mr Wongmight also had given evidence to the effect that he too had been misled and thoughtthat he was simply helping a friend with his business could very well have beencounterproductive.[42] This is not a case where it is alleged directly that a failure to call Mr Wongamounted to counsel error. We do not think such a proposition could be sustained.Rather, it is said essentially that the fact that Ms Pecotic acted for both Ms Li andMr Wong meant that Ms Li was deprived of the opportunity to obtain independentadvice as to whether Mr Wong should have been called.[43] In the circumstances, the relevant question is whether because of herengagement for Mr Wong Ms Pecotic was unable properly to discharge her duties toMs Li. We are not persuaded that was the case. In Duncan v R, the counsel representedtwo defendants at the trial and the informed consent of one of them was not obtained.26The Court observed that the failure to obtain consent was only material if during thetrial counsel had in fact been inhibited in the discharge of her duty to defend theappellant to best advantage.27 It was only if that was the case that a miscarriage ofjustice would have resulted.[44] The Court adopted the statement of Lord Steyn in Mills v R on theresponsibilities of trial counsel in representing more than one accused:28If there is, or might be, a conflict of interest, [counsel] must promptly adviseseparate representation. Any doubt must be resolved in favour of separaterepresentation. Those duties of counsel arise as soon as he is engaged. It is,however, a continuous duty. If at any time before the trial a conflict arises,counsel must advise separate representation of the defendants. If contrary toall expectations such a position arises at trial, counsel may be obliged to seeka discharge of the jury in order to enable separate representation at a new trial.These propositions flow from the right of [an] accused defendant to have hisdefence properly and effectively placed before the jury. It is an integral partof his constitutional right to a fair trial. But their Lordships add onequalification. The province of the law is practical affairs. The question iswhether there is, or might be, a real risk of a conflict of interest inhibitingcounsel in the discharge of his duties on behalf of one or more defendants. Ina practical world wholly theoretical fanciful risks can be disregarded.[45] We are satisfied that in this case Ms Pecotic was not inhibited in any materialway by her joint representation of both Mr Wong and Ms Li prior to the trial. In anyevent, Mr Wong was plainly very reluctant to give evidence and was not compellable.Further, his evidence that he had been misled into coming to New Zealand would havelikely been contradictory to Ms Li's account that she too had been duped, by Mr Wong.Consequently, we are satisfied that this ground of the conviction appeal cannotsucceed.[46] The second issue raised in support of the conviction appeal was that Ms Pecoticdid not pursue as a ground of defence Ms Li's allegation that she was suffering from26 Duncan v R [2013] NZCA 354.27 At [19].28 At [20] citing Mills v R [1995] 1 WLR 511 (PC) at 523.Battered Woman Syndrome, having been frequently physically assaulted byMr Wong.29 In her affidavit, Ms Li said that she had told Ms Pecotic that her husbandwas controlling and that he abused her at their "first legal meeting". She then said thatshe had very little contact with Ms Pecotic until the week before the trial. During thatweek, Ms Pecotic visited her every day to discuss the details about the trial. Accordingto Ms Li, Ms Pecotic advised her not to give evidence that Mr Wong was violent, andshe had followed that advice.[47] In her affidavit in response, Ms Pecotic referred to a meeting that she had withMs Li and an interpreter on 2 February 2019. At the meeting Ms Li showed her twopages of translated writing, stating that she had someone in the jail who could help herwith translations. In a file note, Ms Pecotic recorded that for the first time Ms Li hadsaid that she was a battered wife, that Mr Wong regularly beat her and wasmanipulative towards her. Ms Pecotic recorded that Ms Li had never previously madeany mention of that, including when they met to settle the form of the written statementa week earlier. It is clear that Ms Pecotic was sceptical of Ms Li's claims that she waspermanently bruised on her leg as a result of Mr Wong having hit her repeatedly witha heavy object on the leg, that he grabbed her hair and pulled it and hit her. Ms Pecotictold Ms Li that it was important that she told her the truth and that if a battered womandefence was to be advanced when not true that would be "a very bad idea."[48] In her affidavit, Ms Pecotic said:After discussing this with her, it transpired that this 'defence' had beensuggested to her by some of the other inmates in custody as a good suggestionto 'get off' her charges and was in fact a lie. I advised her she cannot lie to thejury and we cannot lead evidence which is a lie.[49] We note that Ms Li did not respond to Ms Pecotic's evidence about this. Noris there any suggestion in the evidence that Ms Li did not accept, at the time,Ms Pecotic's advice that evidence should not be lead alleging violence against her by29 We use the language employed by counsel but note that the term "Battered Woman Syndrome" isno longer used because of its focus on the victim rather than the abuse they have experienced. Thesocial or systematic entrapment framework reflects up to date understanding and represents afuller and more accurate picture of intimate partner violence: see Julia Tolmie discussingR v Ruddelle [2020] NZHC 1983, [2021] 3 NZLR 505 in "Leaving the 'battered woman' tropebehind" (12 August 2020) University of Auckland | Waipapa Taumata Tau<https://www.auckland.ac.nz/en/news.html>Mr Wong. There is no basis on which Ms Pecotic's advice can be questioned, givenMs Li's admission to her that the claim about Mr Wong's violence was incorrect.[50] In all the circumstances, we are satisfied that no miscarriage of justice aroseon this ground either. Consequently, the appeal against conviction is dismissed.Tai Fi Chiu[51] Mr Chiu pleaded guilty to one charge of importing methamphetamine relatingto the second importation, and to possession for supply in respect of the first twoshipments. Mr Chiu appeals against his conviction on one of three charges to whichhe pleaded guilty on 30 January 2019.[52] The three charges alleged respectively that he was in possession for supply ofthe methamphetamine imported in the first importation, importing themethamphetamine in the second importation and possession of that methamphetaminefor supply. The Crown's case was that he was in possession of the methamphetaminefor supply during the time he was in New Zealand from 11 September 2017 until hisarrest on 19 September. The appeal is against the conviction on the charge ofpossession for supply of the methamphetamine from the first importation.[53] Mr Simperingham advanced the appeal on two bases. First, Mr Chiu claimedhe pleaded guilty in error, and that he had no knowledge or involvement in the eventsthat gave rise to that charge. Second, he said that he could not have been properlyconvicted on the basis of the Crown summary of facts because it did not allege he hadany knowledge or involvement in the first importation and no evidence had beendisclosed to him or led during the trial of the other defendants establishing he hadknowledge of the importation.[54] The claim that he pleaded guilty in error was initially supported by affidavitevidence by Mr Chiu asserting communication difficulties between him andMr Newell arising from the fact that Mr Newell had dealt with him using the servicesof a Mandarin-speaking interpreter: Mr Chiu stated he spoke Cantonese and was notproficient in Mandarin. However, the Crown called evidence from Mr Newell inwhich he stated he had taken instructions from Mr Chiu with the assistance of aCantonese interpreter, and Mr Chiu accepted that was the case undercross-examination. He continued to rely on communication difficulties, however,asserting that he had told Mr Newell that he was not involved in nor had anyknowledge of the methamphetamine imported in 2016. He also claimed Mr Newelltold him it was no use pleading not guilty to that charge and pleading guilty to theothers as he would be sentenced to a substantial term of imprisonment in any event.[55] A further ground on which he claimed to have pleaded guilty in error was thatwhen he was arraigned on 30 January 2019 there was only a Mandarin interpreterpresent in the Court. He claimed in his second affidavit that each charge was read tohim, but he told the interpreter he had no knowledge of the charge relating to the 2016importation. At that point "the lawyer approached me, and said through the interpreterthat I said to him earlier wanted (sic) to plead guilty, how come you wanted to pleadnot guilty now?" Mr Chiu said he did not know what to do, so just said "yes yes yesin Chinese."[56] Mr Newell's evidence was different. He said he had no recollection of Mr Chiutelling him he had not been involved in nor had any knowledge about the 2016methamphetamine importation. If Mr Chiu had told him that, Mr Newell stated thathe would not have proceeded with the entry of the guilty pleas and sentencing.Mr Chiu had given him no reason to think he was confused about the charges he wasfacing and was consistently anxious to plead guilty on all matters. He denied advisinghim that pleading not guilty to the charge would not have affected the sentencingoutcome.[57] It was also Mr Newell's evidence that when he took instructions in relation tothe charges at a meeting on 24 January 2019, the Cantonese interpreter who he hadarranged to be present read each charge and the summary of facts to Mr Chiu, whosigned both documents and wrote "I plead guilty" in Chinese script below each charge.During this process Mr Chiu complained that he had already been over the documentswith counsel previously instructed, Ms Pecotic, and preferred not to hear it all again.Mr Newell insisted the documents be read to him in Cantonese. According toMr Newell, "Mr Chiu was clear, to the point of being abrupt, in his insistence that heenter pleas of guilty to each of the three charges he faced." Mr Newell recalled thiswas consistent with the instructions he had received from his instructing solicitor.[58] As to the arraignment, Mr Newell said that there was again a Cantoneseinterpreter present. He had no recollection of the exchange Mr Chiu claimed had takenplace, and the arraignment proceeded in the usual manner. He added if Mr Chiu hadindicated he was in fact not guilty he would have taken "elaborate written instructions"from him together with the interpreter and advised his instructing solicitor of thesignificant change to his instructions. He stated that he likely would have sought leaveto withdraw given the earlier instructions from Mr Chiu that he was in fact guilty.Mr Newell stated that he would not have proceeded to sentencing. He added thatinstructions that Mr Chiu was not guilty would have been a complete reversal of hisprevious instructions and would have taken him by surprise.[59] For completeness we note that in a third affidavit Mr Chiu claimed that hecould not remember what languages had been spoken on each occasion, whetherMandarin or Cantonese, and made a new assertion that only two charges were read tohim at the meeting on 24 January 2019, an assertion that is of course contrary to thedocumentary evidence of his signature against each charge on the Crown charge noticeand his written notation that he pleaded guilty.[60] We accept Mr Newell's evidence and prefer his account to Mr Chiu's whichwe reject as implausible. We have no doubt that he was fully aware that he waspleading guilty to each charge. Mr Newell's account of what transpired onarraignment was supported by a transcript of the proceeding obtained by the Crowndemonstrating that a Cantonese interpreter had been used and that Mr Chiu entered aguilty plea to each charge without delay immediately after it had been read to him.[61] In the end, Mr Simperingham was left with an argument that there was noevidence that the charge about possession of the methamphetamine imported in 2016was explained to him, and a claim that he had made a mistake in pleading guilty to thecharge because "something had been lost in translation".[62] Exceptional circumstances are required before an appeal against convictionwill be allowed following entry of a guilty plea, and the appellant must show that amiscarriage of justice will result if the conviction is not overturned.30 Circumstanceswhich might give rise to a miscarriage of justice include those where the appellant didnot appreciate the nature of the charge or did not intend to plead guilty to a particularcharge: the plea is vitiated by a "genuine misunderstanding or mistake", but that willbe difficult to show where the defendant has been represented by counsel at the timethe plea is entered.31[63] Another kind of case is where on the admitted facts the defendant could nothave been convicted of the offence charged.32 However, Mr Simperingham acceptedin argument that there was evidence on which Mr Chiu could have been convicted ofpossession for supply of the methamphetamine imported in 2016. That concessionwas properly made given the fact that Mr Chiu had been captured on CCTV visitingthe storage unit where methamphetamine, including that imported in 2016, was beingstored. There was also evidence establishing he possessed an access card and padlockkeys for the storage facility, as well as a business card with the number of the particularstorage unit used recorded on it.[64] Mr Chiu was not charged with importing the methamphetamine in the firstimportation. The charge was that he possessed it for supply, not that he imported it.The wording of the charge, and the summary of facts, which were translated and readto Mr Chiu on 24 January made that plain.[65] In the circumstances we are satisfied that the conviction appeal cannot succeedand must be dismissed.The sentence appeals[66] We will address each sentence imposed by the Judge in conjunction with thecorresponding sentence appeal in turn. For completeness, we also address the sentenceimposed on Ricky Leung.30 See R v Stretch [1982] 1 NZLR 225 (CA); and R v Ripia [1985] 1 NZLR 122 (CA).31 R v Le Page [2005] 2 NZLR 845 (CA), at [17].32 At [18].[67] Before addressing the sentence appeals, we must discuss the approach to beapplied in accordance with Zhang v R and Berkland v R.33 Counsel's submissions tothis Court originally reflected the law as it was articulated in Zhang. While this Court'sdecision was reserved, the Supreme Court issued their decision in Berkland. As notedearlier, we gave counsel the opportunity to make further submissions taking intoaccount the judgment in Berkland. Counsel for Mr Wong, Mr Chiu, Mr Chiang andChi Leung availed themselves of that opportunity, as we discuss below in the contextof each of those appeals. We also received supplementary submissions fromMr Thompson for the Crown.Sentencing for methamphetamine offendingZhang v R[68] Sentencing for methamphetamine offending was the subject of acomprehensive review by a Full Court of this Court in Zhang v R.34 As a consequenceof that review, the Court departed from the approach taken in the previous guidelinedecision of this Court in R v Fatu.35 Although it retained the Fatu quantity bands, thisCourt made significant modifications in Zhang.36 It confirmed that the role played bythe offender is an important consideration in fixing culpability and, consequently, thestage one sentence starting point.37[69] The Court set out the new sentencing bands as follows:38Former: Fatu New: ZhangBand one: < 5 g 2–4.5 years Community to 4 yearsBand two: < 250 g 3–11 years 2–9 yearsBand three: < 500 g 8–15 years 6–12 yearsBand four: < 2 kg 10 years to life 8–16 yearsBand five: > 2 kg 10 years to life 10 years to life33 Zhang v R, above n 9; and Berkland v R, above n 10.34 Zhang v R, above n 9.35 R v Fatu [2006] 2 NZLR 72 (CA). R v Fatu was the guideline decision on methamphetaminesentencing that preceded Zhang v R, above n 9.36 Zhang v R, above n 9, at [118].37 At [118].38 At [125].[70] The Court then referred to a categorisation of roles based on considerationsapplied in the United Kingdom.39 The Court observed that, when assessing role,sentencing judges:40 may find it helpful to have regard to the Council's descriptions of roles andrelevant indicia to be taken into account. We set these out below, modified slightlyto reflect New Zealand circumstances. We observe that indicia 2, 3 and 4 for "lesserrole" categorisation are descriptive of conduct. Any discount for associatedmitigating personal considerations is a matter for the second sentencing stage.39 At [114] referring to Sentencing Council (UK) Drug Offences: Definitive Guideline (2012).40 At [126].RoleLesser Significant Leading1. Performs a limited functionunder direction;1. Operational ormanagement function inown operation or within achain;1. Directing or organisingbuying and selling on acommercial scale;2. engaged by pressure,coercion, intimidation;2. involves and/or directsothers in the operationwhether by pressure,influence, intimidationor reward;2. substantial links to, andinfluence on, others in achain;3. involvement throughnaivety or exploitation;3. motivated solely orprimarily by financial orother advantage, whether ornot operating alone;3. close links to originalsource;4. motivated solely orprimarily by ownaddiction;4. actual or expectedcommercial profit;and/or4. expectation ofsubstantial financial gain;5. little or no actual orexpected financial gain;5. some awareness andunderstanding of scale ofoperation.5. uses business as cover;and/or6. paid in drugs to feedown addiction or cashsignificantlydisproportionate toquantity of drugs orrisks involved;6. abuses a position of trustor responsibility.7. no influence on thoseabove in a chain;8. little, if any, awareness orunderstanding of the scaleof operation;and/or;9. if own operation, solely orprimarily for own or jointuse on non-commercialbasis.Berkland v R[71] In Berkland v R, the Supreme Court gave further consideration to the rolecategories described in Zhang.41 The Court emphasised that sentencing is an intenselyfactual inquiry: assessing the role of the offender is a fundamental component ofassessing gravity and culpability.42 It noted the potency of role will vary dependingon the facts, potentially effecting movements both within and between the "quantumdriven" bands.43 In principle, role could be more impactful than quantum, if justifiedby the circumstances. That could be the case where for example the circumstancesdemonstrate that irrespective of quantum the offender's role in relation to theoffending falls within the lower end of the "lesser" role.44 The Supreme Court alsoobserved that while the three role categories provide a useful lens through which toview the facts, they are a tool to assist evaluation and not a "straightjacket".45 In theanalysis, all facts going to role are relevant, not just the ones approximating thehypothetical facts identified in one or other of the categories. Further, categoryborders are likely to be "porous".46[72] The Court went on to consider the core characteristics of, and differencesbetween, the leading and significant roles. Having done so, it considered that the"significant role" classification of Zhang warranted "some reformulation in twomatters of detail."47[73] The Court accepted that the "leading" role identified in Zhang as involving"directing or organising buying and selling on a commercial scale" would be adescription that applied generally. The Court continued:48The essential characteristic of leaders is that they lead. They are the initiators,designers, controllers and (usually the) profit-takers at each of the severalstages in the commercial dealing chain from manufacture or importation tosupply. They expect and obtain substantial financial gain.41 Berkland v R, above n 10, at [62]–[72].42 At [63].43 At [63].44 At [64]. The Court noted that this was accepted in Zhang v R, above n 9, at [123], albeit inexceptional circumstances.45 At [65] citing Zhang v R, above n 9, at [120].46 At [65].47 At [65].48 At [66].[74] The Court contrasted that with the essential characteristic of "significantplayers", who it described as "important enablers in the chain who take their ordersfrom leaders."49 However, the Court was concerned with the language "operationalor management function" appearing in the first listed characteristic of the significantrole description in Zhang. The point made was that the operational and managementfunctions will not always be interchangeable; managers (directed by leaders) werelikely to be more culpable than those whose tasks are merely operational.50 The Courtsaid those at the upper end of the significant range could be expected to manageaspects of the overall operation with at least some knowledge of how the pieces fittogether. They would direct and engage others in the course of managing a significantaspect of the operation. The Court continued: 51Purely operational functions will not usually place the offender at the upperend of significant unless they exercise a high degree of autonomy in theperformance of functions that are significant to the operation or there is somedistinctive element of the operational role justifying its placement at the upperend.[75] Those offenders were to be distinguished from those falling within the middleand lower end of the significant range, who are unlikely to be exercising managerialfunctions or to have real autonomy in the performance of their functions.52[76] The second matter to which the Supreme Court turned its attention was thefourth criterion for the "significant" role, specifically its reference to "actual orexpected commercial profit."53 The Court said that this was of uncertain application.It considered that for the significant role profile, financial gain rather than commercialprofit would be the more appropriate descriptor. Adjusting the profile in that waywould bring more coherence with the equivalent items under the lesser and leadingroles. It observed:54Those at the upper end of significant can be expected to have been paid in away which is broadly commensurate with the risks that are run and the overallprofitability of the operation. By contrast, a person in the middle to lower49 At [67].50 At [67].51 At [68].52 At [69].53 At [70].54 At [70].range is typically required to carry a greater share of the risks than the rewardjustifies.[77] In the result, the Court amended the description of the significant role profileto read:55Significant1. Management function in operation or chain where, under directionfrom a leader, this entails directing others in the operation whether bypressure, influence, intimidation or reward;2. operational function, whether operating alone or with others;3. motivated solely or primarily by financial or other advantage;4. actual or expected financial or other advantage, especially wherecommensurate with role and risk assumed; and/or5. some awareness and understanding of the scale of the operation.Sentencing Judge's approach[78] The Judge formulated starting points as directed in Zhang,56 under whichquantity is an important measure of culpability.57 The Judge found all the offenders"s[a]t comfortably" in band five, because of the very substantial amounts ofmethamphetamine involved in the offending.58 The Judge then turned to address thesentence for each defendant with reference to their respective role in the offending.He treated Mr Wong and Ricky Leung as having had leading roles. He regardedMr Chiu and Ms Li's roles as significant and the roles of Mr Chiang, Mr Tan andChi Leung as lesser.55 At [71].56 Principal sentence judgment, above n 7, at [44] citing Zhang v R, above n 9.57 Zhang v R, above n 9, at [104] and [118] citing R v Fatu, above n 35.58 Principal sentencing judgment, above n 7, at [49].[79] The result of the sentencing process is summarised in the following table:Defendant Quantity StartingpointEnd sentence MPIMr Wong 267 kg(imports 1, 2 & 3)31 years 25½ years 8½ yearsRicky Leung 267 kg(imports 1, 2 & 3)30 years 27½ years 9 yearsMr Chiu 157 kg(imports 1 & 2)26½ years 19 years, 2months8½ yearsMs Li 109 kg(import 2)23 years 21 years 8 yearsMr Chiang 109 kg(import 2)21 years 16 years, 2months7 yearsMr Tan 109 kg(import 2)21 years 19 years 7½ yearsChi Leung 109 kg(import 2)20 years 18 years 7½ yearsRicky Leung[80] Ricky Leung was convicted in respect of all three importations, involving atotal of 267 kg of methamphetamine. He was also convicted of possession for supplyin respect of the first and second shipments. The Judge considered that he was "plainlya senior figure in the operation," although not the mastermind behind it (who hadsafely directed the operation from outside New Zealand).59 However, Mr Leung hadcome to New Zealand in advance of all co-offenders and had essentially paved theway for the criminal enterprise. Counsel for Mr Leung accepted that the overalloffending warranted a starting point of between 25 to 30 years' imprisonment, and theJudge considered the offending serious enough to adopt a starting point of 30 years.60[81] He allowed a discount of two and a half years in respect of mitigatingconsiderations, principally the fact that Ricky Leung was a foreign national who wouldexperience cultural and familial isolation making a long sentence in New Zealand59 At [59].60 At [59].more difficult for him.61 Also considered were his prospects of rehabilitation towardwhich he had already made efforts.62 The result was an end sentence of 27 and a halfyears' imprisonment. The Judge also imposed a minimum period of imprisonment ofnine years, which was in line with what defence counsel had submitted and lower thanthe minimum period of 10 years' imprisonment sought by the Crown.[82] As noted above, Ricky Leung has not appealed.Wai Fat WongSentence under appeal[83] Mr Wong was sentenced separately from the other defendants, on10 July 2020.63 He had pleaded guilty to four charges: one of possession for supplyrelating to the first importation of 48 kg; one of importation relating to the secondimportation of 109 kg; one of possession for supply following the second importation;and one of importation relating to the third importation of 110 kg.[84] In his sentencing notes, the Judge explained that while he originally intendedto sentence Mr Wong at the same time as the other defendants, shortly before thescheduled date two unsworn affidavits had been filed on Mr Wong's behalf. In hisown affidavit, Mr Wong claimed that it was only after he arrived in New Zealand thatit dawned on him that he might have become embroiled in an unlawful drugimportation enterprise.64 While not seeking to vacate the guilty pleas, he denied hisinvolvement was either planned or deliberate. He claimed he had been simply naive,wilfully blind and/or reckless and denied he had played a leading or significant role inthe methamphetamine importation and distribution. These assertions were clearlycontrary to the position maintained by the Crown at the trial and in the circumstancesit was necessary for Mr Wong's sentencing to be adjourned so that a disputed factshearing could take place.65 The Judge rejected Mr Wong's evidence and concluded he61 At [62] citing Ross v Police [2015] NZHC 1633 at [42]–[43].62 Principal sentencing judgment, above n 7, at [62].63 Wong sentencing decision, above n 8.64 At [4]–[5].65 Principal sentencing judgment, above n 7, at [3].had played a leading role in the offending. He gave his reasons for rejectingMr Wong's evidence in a separate judgment (the disputed facts judgment).66[85] The disputed facts judgment set out the Judge's reasoning for concluding thatMr Wong was a key figure in the operation in some detail.67 The Judge was clearlyinfluenced by the extensive documentation and other materials found in Mr Wong'spossession.68 He noted:[71] First, and in my view of greatest significance, is the very substantialvolume of documentary and other material found in Mr Wong's possessionfollowing his arrest. This included extensive hard copy documentationassociated with the second importation, a packing list for the third importation,images of machinery and equipment and outdoor items consistent with theimportations. There were many scribbled, handwritten notes and lists whichMr Wong accepted he had completed. These included documents whichreferred to the Manurewa address, lists mentioning Bunnings,The Warehouse, vacuum pumps, stainless pots, China Town and Wairau Park(refrigerator). Another note referred to Storage King, Richmond Road,Grey Lynn. Business cards were also found from Noel Leeming, cookwareshops, refrigerator suppliers, industrial thermometer retailers and car rentalcompanies. An even larger number of the documents were located onMr Wong's laptop. Some of these, such as a copy of the innocent agent'spassport, provide a link to the preparatory steps associated with theimportations. There is also documentation relating to Best BudgetInternational 99 Limited, consignment lists and packing lists consistent withthe second importation. Normally, anyone in possession of this range ofmaterial would be, by necessary inference, a person inextricably connected ata high operational level to the wider enterprise. In terms of Zhang they wouldnecessarily meet the classification of a leading role.[86] The Judge also noted that:(a) It was Mr Wong who had possession of large quantities ofNew Zealand, Australian and Hong Kong currency, and who had madesubstantial cash purchases with Ms Li.69(b) Mr Wong had assumed responsibility not only for arranging transportfor the group but also driving them around in the course of their variedactivities.7066 R v Wong [2020] NZHC 1359 [disputed facts judgment].67 At [71]–[83].68 At [71].69 At [76].70 At [78].(c) Mr Wong had arranged for Ms Li to make bookings for their travel toand accommodation in Auckland, as well as for Mr Chiu. If Mr Chiuhad been the leader of the New Zealand phase of the activities, theJudge considered he would have met those costs.71[87] In sentencing Mr Wong, the Judge noted that he had pleaded guilty to thesecond and third importations, as well as charges of possession for supply relating tothe first and second importation.72 Although counsel pointed out that in respect of thefirst importation, Mr Wong's guilty plea related to an amount less than the 48 kgactually imported, the Judge concluded that the difference between what he hadpossessed and the amount actually imported did not materially affect an assessment ofhis role.73[88] The Judge considered that, on quantity alone, Mr Wong's offending was closeto the very top of the range, potentially attracting a sentence of life imprisonment.74He noted in the Crown's submission that Mr Wong should be placed aboveRicky Leung in the hierarchy of those involved in the offending.75 That was becauseon his own evidence, Mr Wong had direct contact with the mastermind of theoperation.76 The Judge also found that Mr Wong had led the group which arrived inNew Zealand on 17 September, and was then engaged in setting up the systems toextract the drug before the police intervened. Mr Wong was "central to the obtainingof the necessary equipment for the extraction process" and had coordinated theactivities of the group.77 It was a necessary inference that he had been entrusted tolead the team in New Zealand. While Ricky Leung had been responsible for the "frontend of the operation," it was Mr Wong who was responsible for and physicallyinvolved in the second and third phases.78 In the circumstances, the Judge adopted astarting point of 31 years' imprisonment in respect of Mr Wong's "senior and leadingrole" in the offending.7971 At [81].72 Wong sentencing judgment, above n 8, at [44].73 At [50].74 At [51].75 At [53].76 At [53].77 At [53].78 At [53].79 At [56].[89] The Judge then allowed discounts because Mr Wong would be imprisoned inNew Zealand, away from friends and family in China and with no means ofindependent support.80 He allowed a discount in the order of eight per cent for theseconsiderations as he had done with Ricky Leung.81 This brought the notional sentencedown to 28 years and six months.82 After considering discounts given to the otherdefendants for guilty pleas, he allowed a 10 per cent discount, notwithstanding the factthat Mr Wong's guilty plea was entered at a very late stage in the process, and hadbeen followed by an unsuccessful challenge to the Crown's claim that he had playeda leading role, requiring a full disputed facts hearing.83[90] In the result, the Judge arrived at an end sentence of 25 and a half years, andordered Mr Wong to serve a minimum term of eight and a half years.84Submissions on appeal[91] Mr Stevens submitted that the starting point adopted by the Judge of 31 years'imprisonment was too high. There was no justification for a starting point above thatapplied to Ricky Leung and Mr Chiu. In any event, Mr Stevens argued that Mr Wong'sconduct placed him squarely within the updated "significant" category and that,having regard to Berkland, a starting point in the region of 27 years' imprisonmentwould be more appropriate. The sentencing purposes of personal and generaldeterrence would then be adequately served by an end sentence in the region of22 years' imprisonment as opposed to the 25 and half years arrived at by the Judge.[92] The key point made by Mr Stevens was that having regard to what Mr Wongactually did, his conduct fell readily within the language used by the Supreme Courtat [68] of Berkland. Quoting from the judgment, Mr Stevens submitted that:85(a) Mr Wong's role was to "manage aspects of the overall operation withat least some knowledge of how the pieces fit together."80 At [60].81 At [64].82 At [65].83 At [66]–[70].84 At [70] and [76].85 Berkland, above n 10, at [68].(b) He "direct[ed]" others in the course of "managing a significant aspectof the operation."(c) There was nothing to suggest that Mr Wong exercised a "high degree"of autonomy.(d) There was no clear evidence of what Mr Wong was expecting to be paidand no evidence that he was to receive a "comparatively largepayment" from the leaders.[93] Mr Stevens then drew a comparison with Mr Berkland, whom he submittedhad extensive involvement in a large-scale commercial operation. Again, adoptinglanguage used in Berkland, Mr Stevens submitted that Mr Berkland had been found tobe a "typical significant player" in the "mid-range" of that category.86 Given thatMr Wong's offending involved hands on tasks and the management of a small team atthe direction of others over the course of a week, his role should also be characterisedas within the "mid-range of significant".87[94] Counsel also compared Mr Wong's offending with the facts of R v Tuilotolava,in which the defendant was charged in relation to the importation of 501 kg ofmethamphetamine (having a value of between $130 and $150 million if sold by thekilogram) and participating in an organised criminal group.88 Downs J adopted astarting point of 32 years' imprisonment, observing that Mr Tuilotolava had beenpresent at almost every significant logistical phase of the operation and had asignificant role in conveying instructions to the group.89 Others were sentenced byMoore J in relation to the same importation: Mr Fakaosilea and Mr Iusitini weresentenced on the basis of starting points of 29 and 32 years' imprisonmentrespectively.9086 At [77].87 At [80].88 R v Tuilotolava [2017] NZHC 2621.89 At [21]–[22] and [26].90 R v Fakaosilea [2018] NZHC 3362 at [41] and [57].[95] Mr Stevens also referred to R v Netzler, a case involving the importation of500 kg of methamphetamine in which the defendant was charged with importing themethamphetamine, possessing it for supply.91 A starting point was adopted of35 years' imprisonment, Harland J describing Mr Netzler as a "crucial link in theimportation chain" and a lead contact in New Zealand who was involved in therecruitment of others and the planning of the operation.92[96] The final comparator relied on by Mr Stevens was R v Thai, in which 469 kgof methamphetamine had been imported concealed in electric motors imported in acontainer.93 Mr Thai faced two charges of possession of methamphetamine for supply:one relating to the 469 kg, and another relating to a separate amount of 26 kg.94 Hehad come to New Zealand for the sole purpose of drug dealing for substantial reward.Toogood J adopted a starting point of 30 years imprisonment for the most seriousoffence, referring to Mr Thai's knowledge that he was involved in a large-scaleoperation and had played a "pivotal" role in executing the plan. The Judgeacknowledged however that there was no evidence that Mr Thai was involved infinancing the operation or having been in direct contact with the principals who hadoverall control. He accepted counsel's submission that Mr Thai was in the"trusted lieutenant" category and not that of a leader".95 Mr Te-Hira, who had a lesssignificant role was sentenced on the basis of a starting point of 28 years.96[97] Mr Stevens contrasted the amount of methamphetamine involved in this casewith the more substantial amounts involved in the cases he referred to. Heacknowledged that, in accordance with Zhang, quantity is not the sole considerationin determining culpability and that it is necessary to consider all the circumstances ofthe offending, including the role played by the defendant. But he claimed thatMr Wong's role was comparable, although arguably less than, the roles of thedefendants in the other cases discussed. Given the substantially greater amount ofmethamphetamine involved in the other cases, the starting point here of 31 years'91 R v Netzler [2021] NZHC 3321.92 At [34] and [60].93 R v Thai [2021] NZHC 1006.94 Toogood J uplifted the starting point by three years for possession of the separate amount of 26 kg.95 R v Thai, above n 93, at [34].96 At [39].imprisonment was excessive. A starting point of between 27 and 28 years'imprisonment would be more consistent with the other cases. In the result, hesubmitted an end sentence in the region of 22 years should be substituted for the25 and a half years imposed.[98] Mr Stevens also pointed out that the minimum term of imprisonment imposedby the Judge of eight and a half years was unnecessary, being the period equivalent tothe statutory minimum applicable under the Parole Act 2002 which Mr Wong wouldserve in any event.[99] For the respondent, Mr Thompson submitted that Mr Wong's role wasappropriately categorised as "leading" by the Judge. That meant that any amendmentsto the "significant" role description flowing from Berkland were irrelevant. Heemphasised that after presiding at the trial over five weeks, and conducting a separatedisputed facts hearing, the Judge was well-placed to assess Mr Wong's role. It was inthat context that the Judge had held that Mr Wong had "assumed the role of localoperational manager and led the team" in New Zealand.97 The Judge concluded hehad a "senior and leading role" in the offending.98 Mr Thompson submitted that it wasinappropriate to compare Mr Berkland's role with that of Mr Wong. In Berkland,Mr Berkland's role was described as "a highly trusted 'gofer' who performedimportant functions for his boss under close supervision, and who boredisproportionate risk when compared to the reward."99 In contrast, Mr Thompsonsubmitted, Mr Wong was the leader within New Zealand of what was a "highlysophisticated and well-resourced" international drug operation.100[100] Mr Thompson also argued that whether Mr Wong's role was described as"leading" or within the upper end of "significant", his offending was amongst the mostculpable to have come before the Courts and required a stern sentence. Mr Thompsondrew attention to one of the appellants whose appeals were determined by this Courtin Zhang, Lok Sing Yip. Mr Yip was sent to New Zealand by a criminal organisationbased in Hong Kong to participate in the importation and distribution of97 Wong sentencing judgment, above n 8, at [55].98 At [56].99 Berkland, above n 10, at [76].100 Wong sentencing judgment, above n 8, at [72].methamphetamine. By his own acknowledgment, Mr Yip was "effectively the personon the ground in New Zealand taking instructions from Hong Kong and passing theseon to others".101[101] The amount of methamphetamine imported was 60.9 kg. This Court assessedMr Yip's role as a leading one.102 He had substantial links to the criminal organisationin Hong Kong from which it appeared the drugs were sourced and had someimportance in the hierarchy of that organisation. He had oversight of the process bywhich the methamphetamine was extracted from the garden hoses in which it had beenconcealed. This Court considered that the "very high quantity" of themethamphetamine imported and his "mid-to-lower level leading role in the offending"made a starting point of 23 years appropriate.103 It appears that starting point was alsoregarded as appropriate by the Supreme Court which discussed Mr Yip's appeal inBerkland.104 Mr Thompson pointed out that the quantity involved in Mr Wong'soffending is more than four times that of Mr Yip and accordingly required a startingpoint significantly higher than the 23 years adopted in that of Mr Yip.Evaluation[102] The Judge gave detailed reasons for characterising Mr Wong's role as a leadingone and rejecting Mr Wong's evidence to the contrary. We have not been persuadedhe was wrong. Of all the offenders, it was Mr Wong who had direct contact with theperson directing the operation from overseas and the Judge was justified in drawingthe inference that Mr Wong had been entrusted with leading the team inNew Zealand.105 He had led the group which had arrived in New Zealand on17 September and set up the systems to extract the drug before the police intervened.106[103] Mr Stevens drew attention to what Mr Wong "actually did",107 claiming hisbehaviour was more akin to the management function described in Berkland, than thatof a leader. We do not accept that submission. The fact that aspects of Mr Wong's101 Zhang v R, above n 9, at [286] citing R v Kam [2016] NZHC 110 at [9].102 At [298].103 At [300].104 Berkland, above n 10, at [50].105 Wong sentencing judgment, above n 8, at [53].106 At [53].107 Berkland, above n 10, at [63].conduct were managerial and operational in nature, does not mean that he could notalso be the leader of the operation in New Zealand. He was the director and organiserhere, effectively leading the group in New Zealand and he was the link to the"mastermind" in Hong Kong.108 If Mr Wong was not at the top of the hierarchy, hewas close to it.[104] We consider Mr Wong fell comfortably within the first, second and third itemsof the leading role profile described in Zhang. There was no evidence about the extentof any financial reward he would have received. That is no doubt because of the timingof the intervention by police, but substantial reward can be inferred from the verysignificant amounts of methamphetamine involved and the fact that he was the directorof the operation in New Zealand.[105] The cases discussed by Mr Stevens involved greater amounts ofmethamphetamine than the present case but the amount involved here wasnevertheless very significant. And the appropriate comparison must take into accountthe role played by the defendants in those cases. In Tuilotolava, the defendant wassentenced after others involved in the same offending were sentenced. Downs Jadopted a starting point of 32 years' imprisonment because that was the starting pointtaken by Lang J in respect of a co-offender, Mr Wan, who Downs J considered wasequally culpable.109 But for that fact, it seems Downs J would have adopted a startingpoint of life imprisonment for Mr Tuilotolava.110 We observe however, thatnotwithstanding this observation of the Judge, he appears not to have regardedMr Tuilotolava as being the most significant actor in the operation, describing him asthe lieutenant of Mr Iustini, another who was sentenced separately.111[106] Moore J sentenced Mr Iustini and Mr Fakaosilea after the sentencing ofMr Tuilotolava had taken place. As noted earlier, he adopted starting points of 32 and29 years respectively.112 The Judge described Mr Iustini as "an important andinfluential member of this operation", but he was not satisfied he was the overall leader108 Wong sentencing judgment, above n 8, at [53].109 R v Tuilotolava, above n 88, at [26].110 At [26].111 At [22].112 R v Fakaosilea, above n 90, at [41] and [57].or director, or "even more senior than all [his] other co-offenders as the Crownsubmits".113 The Judge considered that Mr Iustini had played a similar role to that ofMr Wan and Mr Tuilotolava, finding that all three "played important leadership rolesat various points in the operation" and in the circumstances adopted the same 32 yearstarting point.114[107] The sentencing of Mr Thai and Mr Te-Hira in Thai took place after judgmentwas delivered in Zhang. In the former, Toogood J considered Mr Thai was in the"trusted lieutenant" category, and not that of a leader, and adopted a starting point of30 years, consciously departing from the starting points adopted in Wan, Tuilotolavaand Fakaosilea, despite the fact that the amount of methamphetamine involved wasalmost as much as in that operation.115 The difference was clearly based on the roleof Mr Thai in comparison with those offenders.116 And in the case of Mr Te-Hira, hisculpability was considered significantly less than that of Mr Thai, justifying a five-yeardifference in the starting points.117[108] Netzler was another post-Zhang case. The amount of methamphetamineinvolved was effectively the same as the offending of Mr Tuilotolava and hisco-defendants. Harland J accepted the submission made by both the Crown and thedefence that Mr Netzler fell within the "significant" category of the Zhang roles,finding that he was the "lead contact in New Zealand" and took a starting point of35 years because of the quantity involved.118[109] These cases show that arriving at a starting point is not simply a matter ofcomparing quantities of methamphetamine imported, but also requires an assessmentof the role played. The logic of the Zhang approach requires close attention to thelatter. As this Court said:119113 At [25].114 At [56]–[57].115 R v Thai, above n 93, at [34]–[35] citing R v Wan [2017] NZHC 1255; R v Fakaosilea, above 90;and R v Tuilotolava, above n 88.116 R v Thai, above n 93, at [34].117 At [38].118 R v Netzler, above n 91, at [59]–[60].119 Zhang v R, above n 9 (footnote omitted).[118] We may summarise our proposed approach at the outset. Afterextensive consideration and debate upon the matter, we propose to retain theFatu quantity bands, but with some significant modifications. In particular,we confirm that the role played by the offender is an important considerationin fixing culpability and thus the stage one sentence starting point. Due regardto role enables sentencing judges to properly assess the seriousness of theconduct and the criminality involved, and thereby the culpability inherent inthe offending, in the holistic manner required by Taueki and Hessell. It meansthat a more limited measure of engagement in criminal dealing deserves a lesssevere sentence than a significant or leading role. Role may result in anoffender moving not only within a band – as currently happens or is supposedto happen under Fatu – but also between bands. [110] It follows from this that a starting point must not be derived solely from acomparative analysis of the quantum of the drug involved in the offending, but mustalso be closely tied to the role played by the offender. In broad terms, the feature ofthe present case distinguishing it from the other cases discussed is the clarity of theJudge's finding that Mr Wong was the leader of the group in New Zealand. A verysignificant amount of methamphetamine was involved, even if it was less than in theother cases relied on by Mr Stevens. But we have not been able to accept hissubmission that that Mr Wong did not play a leading role. It is that finding whichdistinguishes this case from the others and explains the starting point adopted. It leadsus to conclude that the sentence imposed on Mr Wong was within the range availableto the Judge. And we note that Berkland did not alter the description of the leadingrole.[111] We agree that the imposition of an eight and half year minimum period ofimprisonment serves no purpose, as this is the minimum period permitted by statute;s 84(1) of the Parole Act 2002 states that the non-parole period of a long-termdeterminate sentence is one-third of the sentence. It was therefore unnecessary for theJudge to order that Mr Wong serve a minimum period of imprisonment of eight and ahalf years. However, we do not consider that s 89 of the Sentencing Act 2002contemplates an order imposing a minimum period of imprisonment equal to thestatutory minimum. Consequently, the order should not have been made and it is setaside.[112] Mr Wong's sentence appeal will be allowed in part for these reasons.Tai Fi ChiuSentence under appeal[113] As Mr Chiu pleaded guilty to one charge of importing methamphetaminerelating to the second importation, and to possession for supply in respect of the firsttwo shipments, the Judge sentenced him on the basis that his offending was related toa total quantity of 157 kg of methamphetamine.120 The Crown submitted that Mr Chiuwas the senior leader of the group, but the Judge did not accept that. He consideredMr Chiu's role to be lower than that of Ricky Leung and adopted a starting point of26 years and six months' imprisonment.121[114] He allowed Mr Chiu a discount to reflect his cultural isolation in aNew Zealand prison and lack of previous convictions, but declined any furtherdiscount in respect of the fact that he was 59 years of age.122 He concluded thatMr Chiu had no significant health concerns, an issue which is pursued on appeal. Inthe result, he allowed two and a half years for personal mitigating considerationsbefore turning to consider Mr Chiu's guilty pleas.123[115] Mr Chiu had entered his pleas on 30 January 2019, just under two weeks beforethe trial started. However, counsel then acting, Mr Newell explained that Mr Chiufirst advised him that he wished to plead guilty on 11 September 2018, althoughinstructing that the pleas should not be entered until disclosure of all electronicdocuments was completed. In the end, the Judge decided that a 20 per cent discountfor the guilty plea would be appropriate, in fact generous.124 In the result, the Judgereached an end sentence of 19 years and two months' imprisonment.125 He orderedthat Mr Chiu serve a minimum term of eight and a half years.126120 Principal sentencing judgment, above n 7, at [67].121 At [68]–[71].122 At [73].123 At [73].124 At [74].125 At [75].126 At [76].Submissions on appeal[116] When the appeal was argued, Mr Simperingham pursued an argument seekinga two-year discount for ill health. It was the sole ground of the sentence appeal. Thiswas supported by a sworn affidavit of Mr Chiu which explained that a tumour on hisliver had been removed while he was in custody for the present offending. Accordingto the doctor responsible for his care, this was not malignant. Mr Chiu is concernedthat problems with his liver, including liver fibrosis caused by chronic hepatitis B, maylead to eventual liver failure which will prevent him surviving his entire term ofimprisonment. Mr Chiu also said he suffers from osteoarthritis and tendon injuries,which he claims make walking difficult, although there was no medical evidencesubstantiating that. He also referred to having previously suffered from a duodenalulcer.[117] A further issue raised was that, because of his age, Mr Chiu risks spending therest of his life in prison if he has to serve his full sentence. He was born in August 1960and sentenced in December 2019. At full term he would be over 78 years old.Mr Simperingham emphasises this context in his submission that ill health should havebeen recognised by a specific discount.[118] Although there had been no challenge to the starting point when the appeal wasargued, Mr Simperingham took the opportunity to raise that issue in the furthersubmissions we invited in response to Berkland. He contended that the altereddescription of the significant role category was relevant to assessing Mr Chiu's role.He submitted that Mr Chiu's actions "properly fall within the significant role categoryin the updated role profile table in Berkland - albeit at the upper end of that category."He submitted that, as a consequence, the starting point adopted in the High Courtshould be reduced to reflect that categorisation.Evaluation[119] We are not persuaded that any of these issues justifies the provision of adiscount for ill health. The only serious issue was dealt with successfully in April 2021by the provision of appropriate medical intervention, for which Mr Chiu graciouslyexpressed his gratitude. The papers attached to Mr Chiu's affidavit indicate that theulcer he previously had is not an ongoing issue, and he is in reasonably sound healthfor a person of his age.[120] We accept that issues of age and ill health should be taken into account wherenot recognising them would render an otherwise appropriate sentencedisproportionately severe.127 Moore J acknowledged that but decided Mr Chiu's agedid not warrant a discrete discount on top of the two and a half years he allowed forcultural isolation and lack of previous convictions.128 We do not consider the Judgeerred in this approach. We do not see any reason to differ from it. It must also beremembered that Mr Chiu was given a 20 per cent discount for his guilty plea, althoughit was entered only two weeks before the trial. We do not consider the end sentence isexcessive when this is taken into account.[121] There are a number of difficulties with the challenge to starting point. First,Mr Simperingham made no attempt to explain how or why the change to thesignificant role description in Berkland affected the Judge's assessment of the startingpoint. The Judge adopted a lower starting point than he had in the case of bothMr Wong and Ricky Leung. In doing so he said he was inclined to agree withMr Newell who submitted on sentence that while Mr Chiu's role was significant, therewas "no evidence to demonstrate he was a leader or senior figure."129 In other wordshe was not sentenced on the basis that he was a leader, and so in terms of the rolecategories in both Zhang and Berkland, he would be in the "significant" category, notthe "leading" category. This is consistent with the fact that Mr Newell argued for astarting point of 26 years, which the Judge came close to at 26 and a half.[122] Mr Simperingham accepts that Mr Chiu would be at the upper end of the"significant" category, post-Berkland, but articulates no argument for why that shouldlead to a reduced starting point from that adopted by the Judge. We do not see why itshould. We set out here the key part of the Judge's reasoning:[70] He was closely connected to the purchases at the cookware shopand Bunnings. He, with Ricky Leung removed the six boxes from theOnehunga storage unit. He was in the Estima and helped to load the boxes127 M (CA91/2012) v R [2013] NZCA 325 at [52].128 Principal sentencing judgments, above n 7, at [73].129 Principal sentencing judgment, above n 7, at [69].into it at the Botany shopping mall. And he helped unload the other boxeslater in the day at the Onehunga storage facility when Mr Tan received the callfrom Mr Chiang.[71] In my view these actions speak to a role which was less senior. Incontrast, Ricky Leung played a more organisational and supervisory function,distancing himself from the actual transport and extraction of themethamphetamine. [123] This seems to us to fit reasonably within items one, two and five of theBerkland significant role profile, and there can be no doubt that from the surroundingcircumstances that item three also applied. As with Mr Wong and the otherco-defendants there is no evidence about what the actual financial reward was.[124] For these reasons we are satisfied Mr Chiu's sentence appeal must bedismissed.Hao LiSentence under appeal[125] The Crown alleged that Ms Li played a "significant role", having accompaniedMr Wong when obtaining extraction equipment and being involved in the acquisitionof the property in Manurewa. She also carried cash to pay for some of the equipmentand was involved in the cookware shop purchases. She was present throughout thetransportation of the boxes.[126] Defence counsel submitted Ms Li had played a "lesser role" in the offending;she claimed to have simply followed instructions from her husband Mr Wong. Shedid not travel to the storage facility in Onehunga, nor had she been involved in thepurchase of tools from Bunnings. She did not play an active role in handling the boxesand remained in the Estima while others loaded and unloaded the boxes containing thedrugs.[127] The Judge concluded that while Ms Li's role was clearly less senior than thatof the main players, she had nevertheless had a significant role. Although not a leader,she took an active role in important operational and administrative tasks and althoughshe hadn't handled the product, she had been present during its transportation. In thecircumstances, he considered a starting point of 23 years' imprisonment wasappropriate.130 He allowed a discount of two years to reflect her cultural isolation andprospects of rehabilitation.131 The result was an end sentence of 21 years'imprisonment. He ordered that she serve a minimum term of eight years.132Submissions on appeal[128] The primary issue pursued on Ms Li's sentence appeal was the imposition ofthe minimum period of imprisonment of eight years. Although Mr Ryan alsodescribed the 23-year starting point as at the upper end of the range, and suggested21 years would have been more appropriate, he did not advance submissions, whetherin writing or orally, as to why that was so.[129] Mr Ryan also sought to rely on a report prepared under s 27 of theSentencing Act which was made available only on the day of the hearing.Mr Thompson objected to the Court receiving it, because there had been noopportunity to consider it. There was no explanation of why it was provided so late.We comment that, having looked at it, the report consists entirely of mattersself-reported by Ms Li that were not able to be verified in any way by the author ofthe report. We do not consider it is appropriate to admit it. We treat this as anapplication to adduce fresh evidence and decline it.[130] We note, in any event, that Mr Ryan did not advance any submissionsuggesting that there should have been a greater allowance for personal mitigatingcircumstances than the two years allowed by the Judge.[131] On the issue of the minimum period of imprisonment, Mr Ryan noted that, inZhang v R, the Court emphasised that minimum periods must not be imposed as amatter of routine or mechanistically.133 Reasons must be given for imposing aminimum period of imprisonment and justifying its length.130 At [80].131 At [81].132 At [82].133 Zhang v R, above n 9, at [169].[132] Mr Ryan complained that the Judge did not properly consider the factorsweighing against the imposition of a minimum period of imprisonment in the case ofMs Li. These included:(a) a low likelihood of re-offending;(b) the assessment of the writer of the pre-sentence report of Ms Li as opento engaging in programmes to gain knowledge, to better herself to avoidfurther offending; and(c) Ms Li's compliance in custody and assessment as having a high abilityto comply with a community-based sentence. While the nature of theoffending meant that was not an option, her conduct while in custodydemonstrated strong rehabilitative prospects.[133] Mr Ryan relied on this Court's decisions in Tran v R and Cheung v R.134 In theformer the Court observed that minimum periods of imprisonment had been quashedor reduced in cases involving those who are young and had good prospects ofrehabilitation, those who have a low likelihood of reoffending and those whosepersonal circumstances weigh against the imposition of a minimum term.135 InCheung, Mr Ryan relied on the court's statement that:136 having regard to the length of the sentence and Mr Cheung's youth,prospects of rehabilitation and personal circumstances (distance from familyand poor English), a minimum period was not required Evaluation[134] We have no doubt the Judge's approach on the issue of the imposition of aminimum period of imprisonment was appropriate. In addressing this issue, the Judgenoted the submission by defence counsel that a minimum period of imprisonment wasnot necessary to hold Ms Li accountable for her offending. He then said:137134 Tran v R [2021] NZCA 464; and Cheung v R [2021] NZCA 175, [2021] 3 NZLR 259.135 Tran v R, above n 134, at [54] citing Fangupo v R [2020] NZCA 484; Prasad v R[2020] NZCA 483; and Tang v R [2021] NZCA 266.136 Cheung v R, above n 134, at [72].137 Principal sentencing judgment, above n 7, at [82].For the reasons outlined above when considering Ricky Leung's MPI, Idisagree. The Crown suggests an MPI of nine years. I consider this is toohigh. I impose an MPI of eight years.[135] When dealing with Ricky Leung, the Judge said:138[63] The Court may impose a minimum period of imprisonment ("MPI")if it is satisfied that it is necessary for the purposes of accountability,deterrence or denunciation. MPIs are not to be imposed as a matter of routine.The test in s 86 of the Sentencing Act 2002 needs to be applied in individualcases and must not be fettered. But this is a case which involved significantcommercial drug dealing. The principles of deterrence, denunciation andaccountability lie at the forefront of this sentence and I therefore consider theimposition of an MPI to be necessary.[136] He was obviously intending those remarks to apply as reasons applicable to theminimum periods of imprisonment imposed on all defendants, including Ms Li. Theyreflect what was said by this Court in Zhang:[171] for the reasons already discussed, it is deterrence, denunciation andaccountability that are likely to be at the forefront of decisions in drug casesinvolving the imposition of a minimum period of imprisonment. That in turnmeans that as a general rule, lengthy minimum periods of imprisonment areproperly reserved for cases involving significant commercial dealing.[137] This was clearly a case involving commercial dealing in extremely largequantities of methamphetamine and purely for commercial gain. In Ms Li's case,having been sentenced to 21 years' imprisonment, the minimum period ofimprisonment of eight years meant she would be required to serve a minimum of about38 per cent of the sentence, compared with the 33 per cent that would otherwise apply.This added about one year to the period of mandatory imprisonment, distinguishingthis case from Cheung v R, where the difference between the statutory minimumperiod and the minimum term ordered was significant, being more than four years'time served.139 A decision to impose a minimum term of that period was well justifiedby the need for deterrence, denunciation and accountability having regard to the scaleof this offending.[138] The pre-sentence report recorded Ms Li's ongoing denial of the offending, forwhich she blamed her partner Mr Wong. She was 42 years old at the time of her138 At [63] (footnotes omitted).139 Cheung v R, above n 134, at [72].offending, and past the point where she could rely on youth as a reason for not beingsubject to a minimum term, the reason that influenced this Court in respect of the19-year-old Mr Cheung and the 24-year-old Mr Prasad.140 While she is in custody inNew Zealand and without the support of family and friends, this hardship was allowedfor in the sentence imposed. There is nothing about her personal circumstances whichindicates the minimum term was inappropriate, and her ongoing unwillingness toaccept responsibility for her role in the offending underlines the need to emphasiseaccountability.[139] For these reasons Ms Li's sentence appeal is dismissed.Yiu Wai ChiangSentence under appeal[140] Mr Chiang pleaded guilty on 8 February 2019 to one charge of possession ofmethamphetamine for supply, in relation to the second importation of 109 kg.The Crown acknowledged that Mr Chiang had played a lesser role, his involvementbeing limited to purchasing equipment and moving boxes. The Judge concluded thathe was "little more than a worker whose role was to handle the product and, when thetime came, to help with its extraction."141 Although he was a willing pair of hands, hehad assumed no organisational role in the offending. The Judge considered that astarting point of 21 years' imprisonment was appropriate.[141] The Judge allowed a discount of two years for Mr Chiang's cultural isolationand rehabilitative prospects.142 He noted that Mr Chiang's guilty plea came on8 February 2019, the week before the trial. That occurred after the Crown dropped acharge of importation against him. The Crown accepted that a discount of 15 per centwas available. Although he considered that to be "rather generous", the Judge allowedit.143 In the result, an end sentence of 16 years and two months' imprisonment wasimposed, with a minimum period of imprisonment of seven years.144140 Cheung v R, above n 134, at [7] and [72]; and Prasad v R, above n 135, at [31(a)].141 Principal sentencing judgment, above n 7, at [85].142 At [86].143 At [87].144 At [87].Submissions on appeal[142] Mr Chiang appeals his sentence on the basis that the starting point of 21 yearsadopted by the Judge was too high, and the discounts allowed for personal mitigatingcircumstances, two years or about 9.5 per cent, were too low.[143] In her submissions at the hearing of the appeal, Ms Taylor-Cyphers argued fora starting point of 20 years and for discounts totalling 15 per cent, discrete discountsof five percent each for "cultural dislocation", rehabilitation and previous goodcharacter. She also argued that there was no need for the imposition of a minimumperiod of imprisonment.[144] In further submissions filed after Berkland, Ms Taylor-Cyphers argued thatthere is now a principled basis on which to claim that the limited duration ofMr Chiang's involvement should be a more important consideration than the quantumof the drug in which he dealt, and that basis justifies a lower starting point than21 years. For this point, she referred to the statement in Berkland on the varyingpotency of role, and that there is no reason in principle why role cannot be moreimportant than quantum if justified in the circumstances.145 She drew attention to theexample given by the Supreme Court: "if the circumstances demonstrate that,irrespective of quantum, the offender's role in relation to it falls within the lower endof 'lesser'."146 She also relied on the Court's observation that quantum and generaldeterrence must not obscure the importance of role as an indicator of comparativeculpability.147[145] Ms Taylor-Cyphers emphasised the brief period for which Mr Chiang can havebeen in possession of the methamphetamine, and that no actual supply occurred.Further, she underlined that the Judge accepted that Mr Chiang's involvement waslimited to purchasing equipment and moving boxes, being left alone with and standingguard over the methamphetamine in two locations, and telephoning Mr Tan when the145 Berkland v R, above n 10, at [64].146 At [64].147 At [77].remainder of the group were engaged in moving the boxes. He was, as the Judgefound:148 little more than a worker whose role was to handle the product and, whenthe time came, to help with its extraction. he was a willing pair of handsbut he assumed no organisational role. [146] Ms Taylor-Cyphers also asked us to note the minority judgment ofEllen France J in Berkland recording her view that the sentences for commercial drugoffending are "simply too high", and that it is "difficult to see that personal or generaldeterrence are better served by a 28 year sentence rather than, say, a 22 yearsentence."149[147] The argument for a greater allowance for personal circumstances was simplythat cultural dislocation, rehabilitative efforts, and previous good character warranteddiscrete recognition with a five per cent discount for each, with an overall discount of15 per cent. The Judge allowed discounts only for cultural isolation and rehabilitativeprospects. Ms Taylor-Cyphers also argued that there was no need for a minimumperiod of imprisonment to be ordered.Evaluation[148] As Mr Thompson for the respondent pointed out, the Judge acknowledged thatMr Chiang had played a lesser role in the offending. The Supreme Court in Berklandmade no changes to the lesser role category in Zhang and for that reason we do notthink it bears directly on the sentence imposed on Mr Chiang.[149] Mr Chiang was involved only in respect of the second importation, involving109 kg. So, in terms of the quantum of the drug involved, his offending was clearlyless culpable than that of either Mr Wong or Mr Chiu. Further, the smaller quantumof methamphetamine and Mr Chiang's lesser in role in relation to it were recognisedby a 10-year differential in the starting points imposed on him and Mr Wong. We arenot persuaded that the starting point adopted for Mr Chiang resulted in a sentence thatwas clearly excessive. Indeed, that was implicitly accepted in Ms Taylor-Cyphers'148 Principal sentencing judgment, above n 7, at [85].149 Berkland v R, above n 10, at [215].original written submission conceding that an overview of relevant authoritiessuggested that a starting point of 21 years' imprisonment for offending involving109 kg of methamphetamine was "within range".[150] In her further submissions, Ms Taylor-Cyphers endeavoured to reopen thatissue based on observations in Berkland about the importance of role as opposed toquantum in certain circumstances, especially where the offender's role is at the lowerend of "lesser". However, we do not think it accurate to describe Mr Chiang's conductin that way. Although there were others in the group whose role was more significant,as described by the Judge, Mr Chiang nevertheless played an important hands-on role.The fact that he was not in possession of the methamphetamine for a lengthy periodof time does not diminish that fact. He was heavily involved in the steps that werebeing taken to prepare to extract the methamphetamine so as to facilitate its supply, aswell as in the other ways identified by the Judge. He was involved with a verysignificant amount of methamphetamine and had come to New Zealand solely for thepurpose of assisting in a sophisticated drug dealing operation. The fact that he wasquickly apprehended is not a proper basis for reducing the starting point for sentencingpurposes, nor do we see significance in Ms Taylor-Cypers' submission that the actualsupply of methamphetamine did not eventuate.[151] In terms of mitigating factors, we accept that although the case involves seriousdrug offending, a discount for the absence of previous offending might have beengiven in accordance with what was said in Zhang.150 Such a discount was allowed bythis Court in Chan v R, to which we were referred by Ms Taylor-Cyphers.151 However,in this case, Mr Chiang's lack of previous convictions is based on his own report tothe author of the pre-sentence report, who recorded that Mr Chiang had been "evasivethroughout the interview". The report also noted that he had exhibited little remorsefor his offending behaviour and showed very little insight into his offending.Mr Chiang told the report's author that he only became aware that he had beenparticipating in illegal activities related to methamphetamine when he was arrested.In the circumstances, we are not persuaded that the Judge was obliged to accept thatMr Chiang had no previous convictions nor to provide any related discount. In any150 Zhang v R, above n 9, at [135]–[136].151 Chan v R [2020] NZCA 486 at [20].event, the question now is whether the end sentence of 16 years and two months wasclearly excessive, and we are not satisfied that is the case.[152] We are also of the view that the seriousness of the offending made itappropriate for the Judge to order a minimum term of imprisonment, for similarreasons as applied in the case of the other defendants.[153] Mr Chiang's sentence appeal is dismissed.Zhi Zhao TanSentence under appeal[154] Mr Tan was found guilty at the trial of one charge of possession for supply,related to the second importation of 109 kg. The Judge considered Mr Tan'sculpability to be equivalent to that of Mr Chiang.152 While Mr Chiang was left towatch over the methamphetamine at the house in Manurewa, it was Mr Tan whom hecalled when he detected something was amiss. The Judge considered that the divisionof these different roles between the defendants was random, rather than indicative ofany sort of higher authority or structure applicable to them. In the circumstances, thesame starting point of 21 years was appropriate.[155] The Judge rejected a submission based on a psychological report that thereshould be a discount for personal factors related to his upbringing.153 However, hegave Mr Tan a discount for rehabilitative prospects, and cultural isolation as he had inrespect of the other defendants. He allowed a discount of two years, resulting in aterm of imprisonment of 19 years. He ordered a minimum period of imprisonment ofseven and a half years.Submissions on appeal[156] Mr Tan appeals his sentence of 19 years' imprisonment on the grounds that itwas manifestly excessive, also alleging that the starting point of 21 years'152 Principal sentencing judgment, above n 7, at [90].153 At [92].imprisonment taken by the Judge was too high and that the Judge should have allowedmore than a two-year discount for personal mitigating circumstances.[157] In support of the appeal, Mrs Smith emphasised that Mr Tan had played a lesserrole, and that the charge of possession for supply related only to the second importationof 109 kg. She argued that the starting point of 21 years appeared to be "out of kilter"with those adopted for Mr Te-Hira in R v Thai,154 the defendants in Wilkinson v R,155and Tran v R.156 She also relied on this Court's finding in Fakaosilea v R(Selaima Fakaosilea) that a starting point of 28 years' imprisonment adopted by thesentencing judge was too high, having regard to the offender's less significant rolecompared with that of a number of co-defendants.157 Mrs Smith submitted there wasno evidence that Mr Tan was aware of how much methamphetamine was involved inhis offending and argued that should be relevant to the starting point adopted.[158] Mrs Smith contended that the Judge should not have imposed a minimumperiod of imprisonment. She again relied on this Court's decision in Wilkinson v R,but referred also to Cheung v R and Tang v R.158 She argued that the Judge erred byfailing to specifically address why the provisions of s 86(2) of the Sentencing Actshould have resulted in the imposition of a minimum period of imprisonment forMr Tan.[159] In Zhang v R, the Court noted it had been emphasised a number of times thatminimum periods of imprisonment "must not be imposed as a matter of routine or ina mechanistic way."159 The Court continued that by referring to the need for a reasonedanalysis, both in respect of the imposition of a minimum period of imprisonment, andits length. However, the Courts specifically noted that in drug cases, deterrence,denunciation and accountability would likely be at the forefront of decisions about theimposition of a minimum period of imprisonment, and said that "as a general rule,154 R v Thai, above n 93, at [39].155 Wilkinson v R [2021] NZCA 438 at [9]; and R v Wilkinson [2021] NZHC 185 at [27(a)] and [28].156 Tran v R, above n 134, at [42].157 Fakaosilea v R [2021] NZCA 401 at [89]–[92] [Selaima Fakaosilea]. The appellant was the sisterof offender sentenced in R v Fakaosilea, above n 90.158 Wilkinson v R, above n 155; Cheung v R, above n 134; and Tang v R, above n 134.159 Zhang v R, above n 9, at [169].lengthy minimum periods of imprisonment are properly reserved for cases involvingsignificant commercial dealings."160Evaluation[160] We turn now to the cases cited by Mrs Smith. We have already discussed Thai,in which the most serious of the charges involved 469 kilograms of methamphetamine.The starting point adopted for Mr Thai was 30 years, and for Mr Te-Hira 28 years.161As noted earlier, Mr Thai's role was described as pivotal, but he was a "trustedlieutenant" and not a leader.162 Mr Te-Hira's role was seen as less significant. Therewas a greater amount of methamphetamine, but we do not see that case as establishingthat the 21-year starting point adopted for Mr Tan here was too high. Mr Te-Hira'sstarting point, on which Mrs Smith particularly relied, was seven years higher. InR v Wilkinson, the defendant was also found to have had a lesser role; the offendinginvolved 193 kg of methamphetamine but a starting point of 22 years, one year higherthan that in the present case, had been adopted.163 Once again, we are not satisfiedthat a comparison between the two cases establishes that the starting point for Mr Tanwas excessive.[161] The facts of Tran are closer to this case.164 Mr Tran's offending involved109 kg of methamphetamine, and Mr Tran had a lesser role in the offending. Thesentencing judge took a starting point of 21 years,165 which was reduced to nineteenyears on appeal.166 It is plain however that the Court's principal reason for reducingthe starting point was that it was the same as that adopted in respect of a co-defendant,Mr Navarro, whose culpability was acknowledged to be more significant. Aftercommenting that it was unfortunate that Mr Tran and Mr Navarro were not sentencedat or about the same time, this Court said had that happened the Judge would havedrawn a distinction in the starting points and recognised that "a more appropriatestarting point for Mr Tran would have been less than for Mr Navarro in order to reflect160 At [171].161 R v Thai, above n 93, at [35] and [39].162 At [34].163 R v Wilkinson [2021] NZHC 185 at [28].164 Tran v R, above n 134.165 R v Tran [2020] NZHC 2633 at [41]–[42].166 Tran v R, above n 134, at [42].his lower role in the organisation."167 As this Court observed in Yu v R, the decisionin Tran focused on the comparison of the starting points selected for the defendants,and does not assist in terms of sentencing levels generally.168 We do not think itestablishes the starting point in the present case was too high.[162] The case of Selaima Fakaosilea was another where the starting point wasreduced for reasons of parity with the co-offenders having regard to their respectiveroles; a four-year differential between the appellant and the leaders of the operationwas considered insufficient.169 The starting point was adjusted accordingly.Mrs Smith's argument invited comparison with the approach taken in that case andTran, but she did not articulate a disparity argument based on Mr Tan's role comparedwith that of his co-offenders.[163] As to the claim that there was no evidence that Mr Tan knew how muchmethamphetamine was involved, it is plain that Mr Tan flew from Hong Kong toAuckland with Chi Leung and Mr Chiang for the sole purpose of processing theimported methamphetamine. It can be inferred he must have known there was asubstantial quantity involved. The extent of his involvement in the purchase ofequipment to be used for extracting the methamphetamine from the gypsum in whichit was embedded, and in moving the boxes underlines that fact.[164] We are not persuaded the starting point was too high.[165] As to mitigating considerations, the Judge did note Mr Tan's lack of previousconvictions. The two-year discount that he allowed for "rehabilitative prospects andcultural isolation" was the same as that allowed in respect of other defendants,although in their case he referred to previous good character when quantifying thediscount.170 It may be that the Judge overlooked mentioning that consideration in thecase of Mr Tan, but we doubt he failed to take it into account. There was no evidencethat any of the offenders had relevant previous convictions and no basis to conclude167 At [39].168 Yu v R [2022] NZCA 382 at [22].169 Selaima Fakaosilea, above n 157, at [89]–[92].170 Principal sentencing judgment, above n 7, at [92].the Judge treated Mr Tan differently in that respect in the allowance given for personalmitigating circumstances.[166] Turning to the imposition of a minimum period of imprisonment, in the presentcase, the Judge imposed minimum periods of imprisonment giving brief reasons ineach case. All of the defendants except for Mr Wong were sentenced at the same time.As we noted above, the Judge explained the approach which he plainly took for eachof the defendants when imposing a minimum period of imprisonment onRicky Leung.171 There are two observations that we make regarding his approach.[167] First, the Judge recognised that minimum periods of imprisonment should notbe imposed as a matter of routine.172 He then said that, because the case involvedsignificant commercial drug dealing, he was of the view that principles of deterrence,denunciation and accountability justified the imposition of a minimum period ofimprisonment. Although the Crown argued for the statutory maximum of 10 years, hereduced that to nine, having regard to Ricky Leung's age and health. We would notcriticise this approach by reason of the brevity of the Judge's reference to the statutorytest.[168] When he came to sentence Mr Tan, the Judge recorded Mrs Smith's submissionthat a minimum period of imprisonment was not necessary, but it was clear that he didnot accept that was the case. Mr Tan was not able to point to youth, health difficultiesnor old age (he was 61 years old when sentenced) as factors that would render theimposition of a minimum term of imprisonment inappropriate.[169] In the circumstances of this case, we do not consider the Judge was obliged todeal with this issue in any more detail than he did.[170] For these reasons, the sentence appeal is dismissed.171 At [63].172 At [63] citing Zhang v R, above n 9, at [169].Chi LeungSentence under appeal[171] The Crown acknowledged Mr Chi Leung had played a lesser role. He wasinvolved in moving boxes, but not to any great extent. The Judge considered his roleto be "broadly comparable but slightly less significant" to the role played by Mr Tanand Mr Chiang.173 He adopted a starting point of 20 years' imprisonment and alloweda discount of two years for rehabilitation and cultural isolation.174 The result was anend sentence of 18 years. The Judge ordered that he serve a minimum term ofimprisonment of seven and a half years.175Submissions on appeal[172] Chi Leung appeals his sentence of 18 years' imprisonment. His appeal allegesthat the starting point was too high, that he should have received additional discountsfor personal circumstances, and for his family circumstances. He contends that it wasnot necessary to impose a minimum period of imprisonment, or in the alternative theminimum period was too long.[173] As to the starting point, Mr Kan's main point was that 20 years was anexcessive starting point in light of Tran v R.176 Mr Kan suggested that the facts of thatcase were comparable to this, but that Chi Leung's conduct was less culpable than thatof Mr Tran. While both fell within the "lesser" category set out in Zhang, Mr Kansubmitted that Mr Tran had a minor management role having been entrusted with theresponsibility of independently organising part of the operation (arranging vehicles todistribute the methamphetamine). In contrast, Chi Leung's role did not extend beyondproviding manual labour under direction from those higher up in the organisation.[174] Mr Kan filed additional submissions responding to the Supreme Court'sdecision in Berkland.177 The point in doing so was to emphasise that Chi Leung hada lesser role.173 Principal sentencing judgment, above n 7, at [96].174 At [98].175 At [98].176 Tran v R, above n 134.177 Berkland v R, above n 10.[175] Insofar as the personal mitigating considerations are concerned, Mr Kansubmitted the Judge had wrongly declined to provide discounts for matters concerningthe cultural background and upbringing of Chi Leung, as well as information abouthis mental health which had been contained in a report prepared for the purposes ofthe sentencing by Mr van Rensburg, a clinical psychologist. His report containedinformation about the appellant's upbringing referring to difficult aspects of hisupbringing (abandonment by his biological parents at a young age, leaving school atthe age of 16 or 17 without any formal qualifications, being attacked by gang membersat an early age, heavy drinking as a teenager accompanied by depression as well asattempted suicide.) All of this was based upon self-reporting by Chi Leung. AlthoughMr van Rensburg's report also recorded Chi Leung's assertion that he had no idea hehad been involved in moving methamphetamine and had simply been doing a favourfor Mr Chiang, whom he referred to as his Godfather.[176] Mr Kan noted that Mr van Rensburg said that it was evident during hisinterview with Chi Leung that he was in considerable distress as a result of hisconviction and immediate future prospects. He mentioned that "some years ago"Mr Leung had attempted suicide, but he denied currently being suicidal. He was onno medication, not suffering from any addictions and, by his own account, had neverused drugs. That, because he was fully aware of their harmful effects.[177] Mr Kan also submitted that the seven year six month minimum period ofimprisonment imposed was unnecessary.Evaluation[178] In respect of starting point, we do not consider that the distinction between theroles played by Mr Tran and Chi Leung is of any significance. Another possibledistinction is that Chi Leung had direct contact with the boxes of methamphetaminewhile Mr Tran did not. The Judge considered that Chi Leung's role was broadlycomparable to that of Mr Tan and Mr Chiang, but slightly less significant, in that hehad not assisted in the purchase of extraction equipment.178 Further, Mr Chiang hadcontacted Mr Tan and not Chi Leung to alert him that the boxes were tampered with,178 At [96].suggesting that Mr Tan had slightly more responsibility. We add that the starting pointadopted of 20 years for Chi Leung was the lowest of all the defendants, and we are notpersuaded that it was excessive in the circumstances of this case.[179] We have already discussed the fact that the starting point adopted in Tran is oflimited usefulness as a comparator for the reasons discussed in Yu v R.179[180] We also do not consider the Judge's approach to Chi Leung's personalmitigating circumstances was in error. The Judge concluded that Mr van Rensburg'sreport provided little information of relevance and assistance to the Court onsentencing.180 He saw no reason to allow him a greater discount than the two yearsallowed in the case of Mr Tan.[181] The Judge did not give specific reasons for imposing a minimum sentence inrespect of Chi Leung but, as noted earlier, that has to be seen in the context of hisoverall sentencing notes and his earlier observations that a minimum period ofimprisonment was necessary for purposes of deterrence, denunciation andaccountability having regard to the significant commercial drug dealing involved.There was nothing in Chi Leung's personal circumstances which dictated it would beinappropriate to impose a minimum term once the Judge was satisfied that therequirements of s 86(2) were met.[182] For these reasons, Chi Leung's sentence appeal is dismissed.Result[183] The applications by Hao Li, Yiu Wai Chiang and Tai Fi Chiu to extend the timefor appealing are granted.[184] The application by Hao Li to adduce further evidence is declined.[185] The conviction appeals by Hao Li and Tai Fi Chiu are dismissed.179 Yu v R, above n 168, at [22].180 At [98].[186] The sentence appeal of Wai Fat Wong is allowed in part and the order that heserve a minimum period of imprisonment is set aside.[187] All other sentence appeals are dismissed.Solicitors:Michael Tan Law, Auckland for Appellant in CA15/2020Woodward Chrisp Lawyers, Gisborne for Appellant in CA605/2020Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent