MA v R [2016] NZCA 362

MA v R [2016] NZCA 362 [28 July 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA311/2015[2016] NZCA 362BETWEEN ZIYANG MAAppellantAND THE QUEENRespondentHearing: 19 July 2016Court: Randerson, Fogarty and Collins JJCounsel: K H Maxwell for AppellantZ R Johnston for RespondentJudgment: 28 July 2016 at 10:30 amJUDGMENT OF THE COURTA The appeal against sentence is allowed.B The sentence of nine years and four months imprisonment is quashed.C Concurrent sentences of eight years and six months imprisonment on each charge of supplying pseudoephedrine are substituted.D The appellant is to serve a minimum non-parole period of four years and three months imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Fogarty J)Introduction[1] The appellant, Mr Ma, pleaded guilty to 43 charges of supplying a class B controlled drug pseudoephedrine. He was sentenced in the High Court to nine years and four months imprisonment with a minimum term of imprisonment of four years and six months.1[2] The sentence is appealed on two grounds:(a) The starting point was too high; and(b) A minimum period of imprisonment should not have been imposed.The starting point[3] The charges against Mr Ma arose out of two major police investigations into methamphetamine and pseudoephedrine distribution in the Auckland area.[4] The police investigation disclosed that Mr Ma supplied 74 sets of ContacNT containing pseudoephedrine for customers of a Mr Tran. On a further 27 occasions, between 18 August and 30 November 2013, Mr Ma supplied at least 155 sets of ContacNT for the customers of another dealer, Mr Zhang. It was not possible to determine the exact amount supplied to the customers of Mr Zhang.The High Court sentence[5] Venning J recognised that the total amount supplied by Mr Ma was uncertain but sentenced him on the basis that he had supplied at least 229 sets. 229 sets amounts to 51 kilograms of ContacNT, or around 20.6 kilograms of pure pseudoephedrine, and has a street value of between $1,832,000 and $2,061,000.[6] When the police operation was terminated and Mr Ma was arrested the police found $8,000 in his possession.1 R v Lee [2015] NZHC 976.[7] Mr Ma was sentenced in the High Court in company with two other offenders, Mr Tran and Mr Lee.[8] Before the High Court, the Crown submitted that the appropriate starting point for the totality of Mr Ma's offending was 14 years imprisonment before takinginto account mitigating factors. By contrast, Mr Ma's counsel submitted a starting point of nine to 10 years imprisonment is appropriate. Fourteen years is the maximum term of imprisonment for supply of the class B drug pseudoephedrine.2[9] In supporting a starting point of nine to 10 years imprisonment, Mr Ma's counsel submitted Mr Ma's role was limited to that of a courier, receiving only smallcash payments each delivery. In sentencing, Venning J said:[25] However even though a courier, in your case Mr Ma the extent of your involvement affects your culpability and supports a starting point towards the maximum penalty for an individual case of supplying pseudoephedrine. Given the number of charges you have pleaded to and the quantity of the drug that you were involved in supplying your case can properly be categorised as falling within the most serious of cases for such offending. Your role, while that of a courier, was an integral part of these substantial drug dealing operations.[10] The Judge also took into account the sentences imposed on other offenders associated with these operations:[26] The sentences imposed on other prisoners associated with these operations are relevant. Mr Collier was sentenced for the supply of 21 ounces of methamphetamine.3 The Judge took a start point of 10 years'imprisonment. Ms Li supplied 24.65 kgs over 16 transactions.4 The Judge took a start point of seven years, six months. Mr Davies was sentenced for supplying 25 ounces of methamphetamine and just under two kilograms of ContacNT.5 The Judge took a start point of 12½ years' imprisonment.[27] The sentence imposed by Lang J on Mr Tarm is particularly relevant.6 Mr Tarm pleaded guilty to eight charges of supplying methamphetamine, two charges of possessing methamphetamine for supply, one charge of conspiring to supply methamphetamine, 14 charges of supplying pseudoephedrine and one charge of possessing pseudoephedrine for supply. Although the offending involved Class A drug offending as well so that the maximum sentence available to the Court was life imprisonment2 Misuse of Drugs Act 1975, s 6(1)(c) and (2)(b).3 R v Collier DC Manukau CRI-2013-092-13252, 18 June 2014.4 R v Li [2014] NZHC 2610.5 R v Davies [2015] NZHC 598.6 R v Tarm [2015] NZHC 930.it is relevant, taking into account totality principles, that the Judge considered a starting point of 17 years' imprisonment was appropriate. I also note the Judge's comments as to the starting point if the offending had beenlimited to the pseudoephedrine. Ms Sellars has properly submitted that Mr Tarm was found with $169,000 while you were only found with $8,000 cash at your address. I do not consider that to be a particularly compelling distinction given the extent of your activity. Obviously cash is readily hidden or transferable and in any event, your personal gain is only one feature. You were an integral and important part of the distribution network as is evidenced by the number of transactions you were involved in.(footnotes in original)[11] That led to the Judge taking as a starting point for sentence 12 years and six months imprisonment.Discussion[12] The leading tariff authority for class B drug offending is the decision of this Court in R v Wallace.7 In that judgment the Court said:[28] It must now be said that cases coming before the Courts in recent years have shown the trend towards increasing sophistication and scale in the manufacture of Class B drugs and the introduction of large commercial quantities into New Zealand by importation. [13] Counsel agreed the offending in this case fell within the most serious category identified in R v Wallace:[30] The cases reflect a considerable range in the seriousness of offending. They show that for commercial activity on a major scale the starting point before any allowance for mitigating factors for a principal offender will be in excess of eight years and in the very bad cases up to 14 years, especially where repeat offending is involved. For major offending of this kind there will likely be numerous separate offences so that the 14-year maximum penalty will have little direct relevance to the total offending.[14] This Court in R v Wallace plainly took account of the fact that sentences in excess of 14 years for the supply of class B drugs could be imposed where the offending consisted of multiple offences. That possibility is reflected in Venning J'ssentencing notes.8 Venning J then went on to compare the sentences imposed on other offenders associated with these operations.97 R v Wallace [1999] 3 NZLR 159 (CA).8 See the first sentence of [25] (set out at [9] above).9 See the paragraphs set out at [10] above.[15] The continuing relevance of the guidelines in R v Wallace in relation to class B drug offending was confirmed by this Court in R v Wang.10 This Court also drew attention in Wang to the role of the offender in the transaction as a factor relevant to culpability:[22] Plainly circumstances will vary from case to case and there is a need for flexibility in the application of these sentencing guidelines. This is particularly so where the bands are expressed with epithet-based descriptors rather than quantities as in R v Fatu. Quite apart from the nature and size of the transaction, the role of the offender will be an important consideration. In the context of Class B controlled drugs this Court said in R v Wallace, on the topic of roles:There is little difference to be drawn between manufacturers and importers. Both introduce the drug to the market. Their interdependence with wholesale distributors means that the true instigator might fill any of these roles or indeed might stand remote simply manipulating others. Instigators, masterminds, prime-movers or controllers are at the top level and when convicted must attract sentences at the upper end of the relevant range. Participants in distribution at lower levels should be dealt with proportionately to their culpability as assessed by the sentencer.(footnotes omitted)[16] Before this Court, Ms Maxwell submitted for the appellant that the Judge placed too much weight on the sentence imposed by Lang J on Mr Tarm. Theargument was that Mr Tarm's offending was more serious in various respects. First,it involved the supply and possession for supply of both class A and class B drugs. Second, Lang J described Mr Tarm as a wholesaler of the drugs, which placed him at a higher level of culpability than Mr Ma. Third, a reading of Lang J's judgmentshowed that Mr Tarm was found to be in possession of a larger amount of cash than that identified by Venning J in the judgment under appeal. Fourth, Lang J had made it clear that the starting point of at least 10 years imprisonment for the class B offending should not be regarded as setting a precedent.[17] The Crown submitted that helpful guidance could be obtained from the sentencing of other offenders identified in these investigations, and also the judgment of this Court in R v Wang.11 Mr Wang was convicted following trial by a10 R v Wang [2014] NZCA 409 at [21].11 R v Wang, above n 10.jury of possessing pseudoephedrine for the purpose of supply, namely 35.32 kilograms of ContacNT, from which 11.2 kilograms of pseudoephedrine could be extracted. Having regard to the role played by the appellant, the Court determined on a Solicitor-General's appeal that a starting point of eight years imprisonment was the lowest available. The appellant was the means by which the importation of the oven (in which the drugs were concealed) could be completed. The appellant was also responsible for the storage of the pseudoephedrine before it was ready to be passed on to the higher level distributors. The sentence of four years and six months imprisonment was quashed and a sentence of seven years and six months imprisonment substituted.[18] One of the appellant's co-offenders was Ms Li. Venning J referred to her when considering the other sentences.12 However, the offending of the appellant, Mr Ma, was considerably more serious than that of Ms Li. First, the quantity of pseudoephedrine supplied was double that of Ms Li. Second, whereas Ms Li'ssupply was over 16 transactions, here the supply was over 43 transactions. As R v Wallace held, the number of offences is a significant factor, which must be considered along with the scale of the total offending. In cases such as the present which involve a distribution network, the role of the particular offender in the operation is a relevant factor in considering overall culpability. We are satisfied thatR v Li is a superior comparator to R v Tarm, because Ms Li's role in the transactionwas more akin to that of Mr Ma and because we consider R v Tarm can be distinguished for the reasons advanced by Ms Maxwell.[19] Venning J acknowledged that Mr Ma's role was that of a courier and rightlynoted that Mr Ma was nevertheless an integral part of substantial drug dealing operations. However, for the reasons advanced by Ms Maxwell which we have summarised at [16] above, we consider the Judge's reliance on R v Tarm led to the adoption of a starting point of 12 and a half years which was too high. Despite the greater number of transactions and the greater quantity of drugs supplied, a starting point at that level did not give sufficient recognition to Mr Ma's lesser role as acourier.12 See [10] above.[20] However, although R v Li is a better comparator, the starting point for R v Liof seven years and six months needs a significant uplift for Mr Ma. As always, the final starting point is very much a matter of judgment. Our judgment is that the starting point for Mr Ma should be 11 and a half years for this offending. The adjustments made by Venning J to the starting point are not in dispute. Applying the same discounts as Venning J, we deduct 18 months from the starting point of 11 and a half years, which takes us to 10 years, and then we allow a discount of 15 per cent for the guilty plea. This results in concurrent end sentences of eight years and six months.The minimum period of imprisonment[21] The second issue is the minimum period of imprisonment (MPI) imposed. Ms Maxwell responsibly recognised that in this very serious drug offending it was almost inevitable that there would be a minimum term of imprisonment.13 This is because the criteria in s 86 of the Sentencing Act 2002 will be made out, particularly the need to hold the offender accountable for the harm done and the need to denounce and deter the conduct. However, Ms Maxwell submitted that, in the circumstances of the present case, the usual parole provisions will adequately recognise these four factors.[22] This Court has recently upheld an MPI of 50 per cent for Mr Tarm.14 The Crown submitted that the fact that others in the operation did not receive MPIs does not mean that one is not justified in the present case.[23] We are of the view that the appellant has not demonstrated that Venning J was wrong, or made any error when imposing an MPI. The imposition of the minimum period of approximately 50 per cent in this case was orthodox.[24] Accordingly, the MPI is maintained but adjusted for the new sentence. Mr Ma will serve a minimum non-parole period of four years and three months imprisonment.13 Solicitor-General v Huang [2011] NZCA 436 at [23].14 Tarm v R [2016] NZCA 261.Result[25] The appeal is allowed.[26] Mr Ma's sentence is quashed. He is sentenced to eight years and six months imprisonment on each charge of supplying pseudoephedrine. The sentences are to be served concurrently.[27] Mr Ma is to serve a minimum non-parole period of four years and three months imprisonment.Solicitors:Crown Law Office, Wellington for Respondent