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Wai Yew Chai v/s The Queen


Company & Directors' Information:- I-QUEEN PRIVATE LIMITED [Active] CIN = U74999KL2017PTC048635

    CA No. 50 of 2019

    Decided On, 02 June 2020

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE P. KÓS
    By, THE HONOURABLE MR. JUSTICE VENNING & THE HONOURABLE MR. JUSTICE MALLON

    For the Appellant: S. Brickell, Advocate. For the Respondent: E.J. Hoskin, Advocate.



Judgment Text


REASONS OF THE COURT

(Given by Ks P)

[1] Mr Chai travelled to New Zealand from Malaysia for the sole purpose of dealing in drugs. He posed as a tourist, staying for six months. Later he was joined by two compatriots using the same cover. Their role was to receive packages of ephedrine, a precursor substance for methamphetamine, sent from overseas exporters and supply it to others further along the dealing chain. Mr Chai had the additional responsibility of renting residential delivery addresses around Auckland. Most transmissions went undetected, but those intercepted contained some 60 kilograms of ephedrine.

[2] On 10 January 2018 a further package arrived which contained not ephedrine but two kilograms of methamphetamine. Mr Chai intercepted the (legitimate) courier driver at the delivery address and attempted to persuade him to release the package. The courier driver was suspicious and would not do so. Mr Chai made repeated efforts to obtain release of the package. The courier company contacted the New Zealand Customs Service. Mr Chai says that he agreed only to receive ephedrine, and the supply of methamphetamine was a surprise to him. The summary of facts on which Mr Chai was sentenced proceeded on that basis.

[3] Mr Chai was charged with and pleaded guilty to importing methamphetamine (a Class A drug),[1] a representative charge of importing ephedrine (a Class B drug) and 10 specific charges of importing the same drug.[2]

[4] Judge Collins sentenced Mr Chai to 13 years and six months’ imprisonment, with concurrent sentences of four years’ imprisonment on the other charges, and a 40 per cent minimum period of imprisonment, equating to five years and six months.[3] Mr Chai appeals his sentence.

Sentencing

[5] The Judge first assessed the appropriate sentence starting point. He took the methamphetamine charge as the lead offence and applied a 15 year starting point to that. He then uplifted that starting point by three years for the ephedrine charges, having regard to the totality of the offending.[4]

[6] Turning then to Mr Chai’s personal circumstances, the Judge declined to discount the sentence for remorse, concluding that the indications of remorse reflected self-pity rather than real remorse for the harm that the offending would cause to New Zealanders.[5] Nor did the Judge give a discount for Mr Chai’s status as a foreign national in prison. The Judge noted that he was a mature man (40 years of age at the time of sentencing) and that nothing before the Judge would suggest that he was particularly vulnerable or had been manipulated, threatened or coerced to come to New Zealand to perform the role that he did.[6] However, Mr Chai pleaded guilty at an early stage and deserved the full 25 per cent discount available for the guilty plea.[7]

[7] The end result was an end sentence of 13 years and six months’ imprisonment, with a 40 per cent minimum period of imprisonment, equating to five years and six months.[8]

Appeal

[8] Mr Brickell (for Mr Chai) challenges the sentence imposed by the Judge on four bases: first, the starting point was too high; secondly, insufficient credit was given for personal mitigating factors; thirdly, the sentence lacked parity with Mr Chai’s co offenders; and fourthly, a minimum period of imprisonment should not have been imposed. We consider each submission in turn.

Starting point

[9] In Zhang v R this Court revised the R v Fatu sentencing guidelines for methamphetamine offending.[9] This appeal was filed before Zhang was delivered and it is accepted that the revised guidelines apply here. Some significant changes were made to how starting points for methamphetamine offending should be calculated.

[10] First, the new Zhang sentencing bands no longer differentiate between supply, importation and manufacture. Instead, knowing participation in importation or manufacture may be indicative of a more significant role, attracting a higher starting point.[10] Zhang reduces the entry points for the former Fatu bands one to four. The Court did so to permit lower sentences for offenders at the bottom of each band “whose role is found to be lesser in degree, and where quantities are at the lower end of the relevant range”.[11] The final Fatu band was divided into two bands, now known as bands four and five.[12]

[11] Secondly, the role played by an offender is a very important consideration in setting the starting point. In Zhang the Court provided a table of indicia for differentiating degrees of role between “lesser”, “significant” and “leading” participation in the offending.[13] We agree with the submission made to us by Ms Hoskin that the list is not exhaustive, and that determining an offender’s culpability requires attention not only to seniority but also the nature of the offending and the scale of the offending (such as temporal duration and number and frequency of transactions). We also observe that an offender may strike indicia within different degrees of role — some suggesting “lesser”, some a more “significant” role. The sentencing judge’s task is to make an overall assessment of functional responsibility, recognising that quantity alone is insufficient to determine culpability.

Submissions

[12] Mr Brickell submits that the importation of two kilograms of methamphetamine falls at the lowest end of band five, providing a sentencing range between 10 years and life imprisonment. He accepts that the role played by Mr Chai was significant, but at the lower end of significant. It is said that Mr Chai was merely a catcher, with no role in the supply stage of the operation. He received $2,000 to $3,000 per package, which was modest relative to the value of two kilograms of methamphetamine. There was no evidence he was involved in directing others in the operation, and he was instructed by persons unknown higher up in the chain of command. Mr Brickell likened the role performed by Mr Chai to that performed by Mr Zhang in that nominate appeal, save that Mr Zhang had of course received 17.9 kilograms of methamphetamine. This Court would have reduced the starting point for Mr Zhang from 17 to 15 years’ imprisonment.[14] Mr Brickell submits that Mr Chai is less culpable than Mr Zhang. First, the quantity was far less. Secondly, whereas Mr Zhang was cognisant that he was importing methamphetamine, Mr Chai had agreed only to be involved in the importation of ephedrine. As we have observed, the statement of facts proceeds on the basis that that assertion is true.

[13] Mr Brickell submits that while rightly there should be no sympathy for Mr Chai given that he had chosen to import drugs in the first place, his lack of knowledge that the importation was of methamphetamine was relevant to his culpability and ought to attract a lower starting point than a person who knowingly imported that substance. Accordingly Mr Brickell submitted a starting point closer to the bottom of band five, of 10 years’ imprisonment, was appropriate.

[14] Turning to the ephedrine offending, Mr Brickell submits that having regard to the sentence imposed on Mr Chai’s co-offender, Mr Neow, a starting point of 11 years would have been appropriate had Mr Chai been sentenced on the 11 ephedrine charges alone. A cumulative sentence of 21 years would be out of all proportion to the total offending. An overall starting point of 15 years would be in proportion to the overall gravity of Mr Chai’s offending “as a catcher at the bottom of the importation chain”. Eighteen years, on the other hand, was excessive and crushing.

[15] For the Crown, Ms Hoskin supports the Judge’s starting point, though concedes that it is “stern” in light of Zhang. A 15 year starting point is consistent with pre Zhang authorities concerning importations of around two kilograms of methamphetamine.[15] But if too stern post-Zhang, any excess is cancelled out by a lenient uplift of only three years for the ephedrine offending.

[16] If instead the ephedrine importing was taken as the lead offending, a starting point of more than 12 years would have been justified, having regard to the 11 and 10 years adopted for Mr Chai’s co-offenders Mr Neow and Ms Aloysius (for fewer importations over a shorter duration), and to earlier authority.[16] An uplift of six years would then be appropriate for the methamphetamine offending.

Discussion

[17] In terms of quantity it is correct that Mr Chai is at the bottom end of band five. But he rises through that band by reason of the role that he played. Mr Brickell’s submission that Mr Chai’s role was “at the bottom of the importation chain” does not entirely square with the concession that his role was “significant but at the lower end”. We would assess his role as a significant one in terms of the Zhang indicia.[17] He held an organising, operational role within New Zealand, he would have had some appreciation of the operational scale, and he was solely motivated by financial and related advantage.

[18] Mr Chai entered into this activity with his eyes entirely open, and with the purpose of both profit and pleasure. He said to the probation officer “every time I signed for a package I would receive anywhere between $2,000 to $3,000”. Mr Chai said he spent most of the money, but a little remained. The probation officer asked Mr Chai why he agreed to the job and he replied, “I should not [have] done it in the first place, but I like the idea of going overseas”. The three co-offenders travelled from Malaysia posing as tourists. Mr Chai’s role was the most significant one of the three, and he was here for a longer period. Using his cover posing as a tourist he was responsible for obtaining the addresses to which the parcels would be sent. Further, although Mr Chai can to an extent distance himself from the importation of methamphetamine, he must have appreciated that ephedrine was imported only for the purpose of conversion to methamphetamine. It served no useful function in its own terms, and he would not have been receiving $2,000 to $3,000 per package from someone who simply wanted ephedrine. He was receiving ephedrine as a precursor to methamphetamine production, and he would have been well aware of that fact.

[19] Ms Hoskin is right to say the sentence imposed, pre-dating Zhang, is stern. In light of Zhang and subsequent appellate decisions, too stern in our view. Approaching the methamphetamine charge alone, we are dealing with two kilograms and a significant role. Mr Zhang had 17.9 kilograms and a significant but lower end role in his supply chain — which would have attracted a starting point of 15 years. In this Court’s recent decision in Miller v R, 905 g and a significant role in a large commercial drug operation attracted a starting point of 11 years and six months’ imprisonment.[18]

[20] Another, useful way of analysing the appropriate starting point for Mr Chai is by reference to the bands denoted by Zhang. That is because the quantity here, two kilograms, is right on the cusp of bands four and five. So that means, for instance, that the ringleader of a supply chain concerned with say 1.95 kilograms might expect a starting point near the band four top of 16 years. A person in the chain with an unequivocally lesser role (but the same 1.95 kilograms) might expect 10 years (up from the eight year starting point, because the band starts at only 500 grams). Logically, someone in between (i.e. significant role and 1.95 kilograms) might expect between 12 and 14 years. A further 50 grams, taking the offender into band five, should make no very appreciable difference to those numbers.

[21] Bearing those authorities and that analysis in mind, we consider the appropriate starting point for Mr Chai was 13 years’ imprisonment on the methamphetamine charge.

[22] The question then becomes what uplift should be applied to that sentence for the substantial quantity of ephedrine imported by Mr Chai. We accept the submission by Ms Hoskin that he was a committed ephedrine importer on a large scale, and that his offending falls within the uppermost category in R v Wallace, representing commercial activity on a major scale.[19] The applicable starting point for the ephedrine offending therefore falls within the range of eight to 14 years. We also agree that based on R v Wang the ephedrine offending in its own terms would have attracted a sentence starting point of 12 years.[20] It may be noted that Mr Chai’s co offenders, Ms Aloysius and Mr Neow, had starting points of 10 and 11 years applied for their participation, at a lesser scale, in the importation of ephedrine only.[21] We would have adopted a starting point of 12 years’ imprisonment on the ephedrine charges, had that been all Mr Chai faced.

[23] It is necessary now to look at the offending in totality and assess a combined starting point, which will set the relevant uplift for the ephedrine offending. In our view the appropriate overall starting point would have been of 16 years’ imprisonment, based on a starting point of 13 years for the methamphetamine offending and an uplift of three years for the substantial ephedrine offending. As it happens, that is the same uplift applied by the Judge.

[24] This analysis addresses also the second appeal ground of parity.

Personal circumstances: mitigating factors

Remorse

[25] Mr Brickell referred to the letter of remorse written to the Judge by Mr Chai, along with one from his brother. He submitted that it was difficult to envisage how Mr Chai could have expressed more remorse for the community beyond stating that fact and that he prays for forgiveness.

[26] There is something in that, but the letter is formulaic, and contains no real insight on Mr Chai’s part as to the implications of the offending for the community. It is that which is indicative of real remorse. We do not think the brother’s letter adds much to that assessment. We note that the probation officer recorded that Mr Chai had expressed no remorse in the interview they had. We agree with Ms Hoskin’s submission that a robust assessment is needed of remorse, and the Court will look for “hard evidence of genuine regret and remorse”.[22] We do not think the Judge erred in his assessment.

Previous good character

[27] The Judge was prepared to proceed on the basis that Mr Chai had no known conviction history, although he was of course only a temporary visitor to New Zealand. Mr Chai did not furnish the Judge with proof of his good standing in Malaysia. The Judge was not prepared to provide a credit for good character because of that fact.[23] Mr Brickell submits that was an error in principle and Mr Chai’s absence of previous convictions should be treated as a mitigating feature. He was deserving of a modest discount because of his good character. He was 40 years old at the time of sentencing and to that point had lived a law-abiding life.

[28] Ms Hoskin accepts that Mr Chai was a first time offender, but makes the point that his offending had continued over a protracted period of time. On that basis the Judge was not dealing with a first offender being sentenced for a single offence. Prolonged and premeditated offending diminished or eliminated the consideration of good character.[24] Ms Hoskin also acknowledged that both of Mr Chai’s co-offenders received discounts for previous good character, Ms Aloysius receiving 15 per cent,[25] and Mr Neow five per cent.[26]

[29] We consider the Judge erred in not treating Mr Chai as essentially in the same position as Mr Neow. A modest measure of credit is applicable for an absence of convictions, given the Crown accepts that to be the case. That is diminished in the case of both Mr Chai and Mr Neow by the relatively protracted nature of the offending, but it was conducted predominantly over a relatively short period of time between November 2017 and January 2018.

[30] There was also evidence before the Judge of extensive efforts Mr Chai has made in undertaking numerous courses of self-insight and improvement, and of his working with some distinction in the prison kitchen system. That might be indicative of rehabilitative effort and prospects, but can be considered as a general indicator also of good character and ability to contribute in a meaningful way to society beyond criminality.

[31] Taken together, we consider a 10 per cent discount for good character and rehabilitative effort and prospects should have been allowed.

Foreign national

[32] Mr Brickell submits that the isolation of and denial of family support to foreign nationals in prison for drug offending may be treated as a mitigating factor which makes the sentence harder than usual to bear.[27] Both Ms Aloysius and Mr Neow received sentencing discounts for that factor.[28] The refusal to apply that also to Mr Chai was on the basis of his maturity, and the fact that there was an absence of manipulation. Mr Brickell submits that sort of analysis concerns starting point and culpability, rather than the relevant effect of imprisonment on a foreign person shorn of support. That applied equally to Mr Chai as to the others. In a sense it was worse for him because being older, his parents were older, now in their seventies, and he is gravely concerned that he will not see them again during their lifetime.

[33] Ms Hoskin acknowledges that as with his co-offenders, Mr Chai is a foreign national with no family support in New Zealand. While that was a discretionary rather than automatic consideration, the Crown acknowledges that the Court may well consider such a discount warranted in these circumstances.

[34] We accept that the Crown submission in this context is correct, and that the emphasis of the discount available is not based on culpability by reason of coercion (which would in itself reduce the level of the starting point), but rather a circumstance making the term of imprisonment harder for the offender to endure. In this case Mr Chai’s greater age has its own adverse implications in terms of his prospects of seeing his aging parents again. On the other hand, that greater age and experience of life has plainly assisted Mr Chai adjust to life within prison, participate in work in the prison kitchen system and assimilate effectively to his new environment. A relatively modest five per cent discount is appropriate.

[35] In sum therefore Mr Chai’s personal mitigating circumstances deserve a 15 per cent reduction from his sentence starting point of 16 years.

[36] In addition, the 25 per cent discount on account of his early guilty pleas is confirmed.

[37] The net effect of these discounts is an end sentence of nine years and seven months’ imprisonment. As in our recent decision in Royal v R, we take both discounts together rather than calculating them sequentially.[29]

Minimum period of imprisonment

[38] Mr Brickell argues the minimum period imposed should be quashed. Although Mr Chai was knowingly participating in a large scale commercial drug importation and was solely motivated by profit, he was a first time offender who accepted responsibility and was remorseful.

[39] A minimum period of imprisonment may be expected in cases of recidivist or commercial methamphetamine dealing. That is because in such cases its imposition is not merely deserved, but necessary to hold the offender accountable, denounce drug dealing of this kind with the grievous social harm it causes the community, protect that community and to deter repetition.[30]

[40] We take the view that Mr Chai’s extended involvement in significant commercial dealing, for profit and travel benefits but without regard to the societal harm his actions were causing, means a minimum period of imprisonment is required in this case. The minimum period here, at the relatively low level of 40 per cent, is lenient. It is confirmed. However, as a percentage of a now-reduced sentence, it too must reduce and becomes three years and 10 months’ imprisonment.

Result
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br />[41] The appeal against sentence is allowed. [42] The sentence of 13 years and six months’ imprisonment is quashed and substituted with a sentence of nine years and seven months’ imprisonment. [43] The minimum period of five years and six months’ imprisonment imposed by the District Court is quashed and substituted with a minimum period of three years and 10 months’ imprisonment. ------------------------------------------------------------------------ [1] Misuse of Drugs Act 1975, s 6(1)(a) and 6(2)(a). [2] Section 6(1)(a) and 6(2)(b). [3] R v Chai [2019] NZDC 1215 [Sentencing notes]. [4] At [19]–[30]. The Judge took the view that had the ephedrine offending stood on its own, a starting point of 10 years’ imprisonment for that would have been appropriate: at [30]. [5] At [31]–[32]. [6] At [39]–[40]. [7] At [17]. [8] At [41]. [9] Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648; and R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA). [10] At [122]. [11] At [123]. [12] At [121]. [13] At [126]. [14] At [255]–[257]. [15] Nguyen v R [2009] NZCA 239 (1.7 kilograms, 16 years); and Man v R [2017] NZCA 525 (2.18 kilograms, 17 years). [16] R v Wang [2014] NZCA 409; and Yuen v R [2015] NZCA 555. [17] Zhang v R, above n 9, at [126]. [18] Miller v R [2020] NZCA 131. [19] R v Wallace [1999] NZCA 89; [1999] 3 NZLR 159 (CA) at [30]. [20] R v Wang, above n 16, at [24]. [21] R v Aloysius [2018] NZDC 22931 at [32]; and R v Neow [2019] NZDC 9734 at [69]. [22] Senior v Police (2000) 18 CRNZ 340 (HC) at [21]. [23] Sentencing notes, above n 3, at [14]. [24] Referring to R v Zhang [2004] NZCA 83; (2004) 20 CRNZ 915 (CA) at [26]. [25] R v Aloysius, above n 21, at [34]. [26] R v Neow, above n 21, at [71]. [27] Referring to Zhang v R, above n 9, at [163]. [28] R v Aloysius, above n 21, at [34]; and R v Neow, above n 211, at [72]. [29] Royal v R [2020] NZCA 129 at [29]. [30] Zhang v R, above n 9, at [171].
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