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Zhuoling Gao & Others v/s The Queen


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

    CA Nos. 365, 386 & 405 of 2017

    Decided On, 23 March 2018

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE GILBERT
    By, THE HONOURABLE MR. JUSTICE SIMON FRANCE & THE HONOURABLE MR. JUSTICE WHATA

    For the Appellants: B.L. Sellars, K.H. Maxwell, N.P. Chisnall, Advocates. For the Respondent: E.J. Hoskin, Advocate.



Judgment Text

REASONS OF THE COURT

(Given by Whata J)

[1] Ms Gao, Mr Hsu and Mr Wu appeal against sentence. Ms Gao and Mr Hsu were sentenced to nine years’ imprisonment for conspiracies to import and supply methamphetamine. Mr Wu was sentenced to 17 years and three months’ imprisonment on three unrelated methamphetamine importation charges and on the conspiracy to supply charge.

The facts

Importation

[2] Mr Wu was found guilty on three charges of importation of methamphetamine. The facts of this offending are not disputed. In summary, Mr Wu, together with his associates, Mr Wang, Mr Bih and Mr Huang, imported 3.642 kilograms of methamphetamine in three shipments, namely:

(a) On 8 February 2015, a wine bottle arrived in New Zealand. Testing of the liquid indicated it contained 495 grams of pure methamphetamine.

(b) On 15 February 2015, a package containing a further six wine bottles arrived in New Zealand. In total, these wine bottles contained 1.67 kilograms of pure methamphetamine.

(c) On 19 February 2015, another package of six wine bottles arrived. In total, these wine bottles contained 1.477 kilograms of methamphetamine.

[3] Mr Hsu and Ms Gao were also charged, but acquitted in relation to this offending. The conspiracy to import charge relates to further planned importations after these importations.

The conspiracy charges

[4] Ms Gao and Mr Hsu pleaded guilty to the conspiracy charges. It appears they did not plead to the summary of facts. In any event, helpfully, Judge Ronayne summarised the facts of the conspiracy offending based on his view of the evidence, the accuracy of which is not challenged. He stated:[1]

[13] Mr Hsu and Ms Gao, also you have admitted that you together agreed to supply methamphetamine in New Zealand which is of course charge 7. The intercepted communications exhibited at trial show that you three, that is Mr Hsu, Ms Gao and Mr Wu and Mr Wang intended to import very large commercial quantities of methamphetamine into New Zealand and for Mr Hsu and Ms Gao to arrange its ongoing subsequent supply.

[14] The communications disclosed the scale of the conspiracies and the organisation of the criminal enterprise. Mr Hsu, Ms Gao and Mr Wu were heard to discuss bringing into New Zealand very large commercial quantities of methamphetamine where you three discussed importing 10 kilograms on one occasion and making profits of $200,000 a week. It was also discussed between you that you would have and I quote, 'Dozens of kilos.' At one point Mr Hsu and Ms Gao discussed buying a property and the possibility of spending two to three million dollars on that. In one communication, between Mr Hsu and Mr Wu, there was talk of wanting to make $2 million and that in one year, 100 kilograms could make $20,000 per kilogram.

[15] There were also discussions of bringing in methamphetamine weekly and monthly. There were other discussions about making a net profit of $2 million and that 10 kilograms could make you $800,000 to $1 million and that money could be hidden in bank accounts.

[5] The Judge also linked the conspiracy offending to the importation offending. The correctness of this linkage is not accepted. The Judge observed:

[21] I turn to the conspiracy offending. Mr Wu, you were involved in both the importing offending and the conspiracy to import methamphetamine. Mr Hsu and Ms Gao, you were closely associated with Mr Wu and others involved in the importation of methamphetamine during the February importations. Mr Hsu and Ms Gao’s association in that period included these things:

(a) Huey Bih was seen at your address, 22 Endeavour Street, on 19 February 2015.

(b) You took Mr Bih to the airport when he departed New Zealand on 9 March 2015.

(c) When Mr Wu departed New Zealand for the first time on 3 March 2015, both of you were seen at the airport departure with Mr Bih.

(d) Fu Tai Wang received package 5, charge 5, at the White Swan Road address on 23 February 2015 at around 12.15 pm. You two, Mr Hsu and Ms Gao, were seen at approximately 1.00 pm waiting with Mr Bih and Mr Wu on Dominion Road anticipating in my view the arrival of Fu Tai Wang. You were all seen spending the balance of the day together.

[6] We will return to the significance of the linkage drawn to the importation below.

Sentences

[7] The appellants were sentenced together. The Judge rejected the submission that quantum could not be established. He said the conspiracy was clearly entered into with the intention of making very large profits quickly from the importation of large quantities of methamphetamine. He considered Mr Hsu, Ms Gao and Mr Wu played similar roles in the conspiracy to import methamphetamine.

[8] Judge Ronayne acknowledged the pain Ms Gao and Mr Hsu will suffer from being separated from their child. He adopted a starting point for the conspiracy to import of 12 years, based on R v Fatu band four, for methamphetamine importation, and reduced this by 30 per cent to eight and a half years’ imprisonment.[2] He added a two-year uplift for the conspiracy to supply. The Judge then applied discounts of five per cent for personal mitigating factors and 10 per cent for guilty pleas. An end sentence of nine years’ imprisonment was imposed for both Ms Gao and Mr Hsu, comprising seven years six months on the conspiracy to import charge and one year six months on the conspiracy to supply charge.

[9] A starting point of 15 years was adopted for Mr Wu’s importations and, after a discount of five per cent for mitigating factors, a sentence of 14 years and three months’ imprisonment was imposed. The Judge said he could not differentiate Mr Wu’s part in the conspiracy offending from Mr Hsu and Ms Gao. The conspiracy sentence was thus comprised of an eight year six month starting point, less five per cent for personal factors. A reduction to three years was given for totality reasons. Taking the importation and conspiracy charges cumulatively, an end sentence of 17 years and three months’ imprisonment was imposed, with a minimum period of imprisonment of seven years.

Ms Gao and Mr Hsu

[10] Ms Sellars, for Ms Gao, emphasised the following:

(a) The sentencing Judge wrongly concluded that Ms Gao (and Mr Hsu) were closely associated with Mr Wu and his associates during the importation, given that they were acquitted of the importation charges.

(b) Large amounts of methamphetamine were referred to in conversations, but these discussions do not appear to have been founded in reality.

(c) In R v Naupoto[3] and R v Briaturi[4] lower starting points were adopted to reflect the improbability of the import ever occurring.

(d) It is inherent in the charge of conspiracy to import that there will be subsequent possession for supply. There should be no uplift for a separate charge that makes up part of the overall offending.

(e) A 15 per cent discount was warranted for a guilty plea, given the reduction in trial time, and a six month allowance for personal factors was insufficient, particularly given Ms Gao’s good background.

[11] Ms Maxwell adopts these submissions for Mr Hsu and raises a further point. She submits the starting point for Mr Hsu on the conspiracy charge is inexplicably higher than the sentence handed down to Mr Wu, even though they have similar levels of culpability. This, she says, violates the parity principle.[5]

Assessment

[12] The Judge did not err and the sentences handed down were available to him. First, the Judge was correct to place the conspiracy offending within band four of Fatu. The recorded communications reveal they spoke about importing 10 kilograms, making profits of $200,000 a week, 'dozens of kilos', and a net profit of $2 million. Furthermore, it was available to the Judge to find that:[6]

I am satisfied that on an overview of the evidence that all that stopped you from actually importing, in other words proceeding from a plan to actual importation, was a hold up in the exportation of the methamphetamine from Taiwan and the termination of the operation and your arrest.

[13] Second, as Ms Sellars noted, there is no direct evidence of methamphetamine having been obtained for the conspiracy. But the absence of methamphetamine was a factor considered by the Judge.[7] Furthermore, it was available to him to find that the prospect of importation was not a daydream or a fantasy, given that one of the members of the conspiracy successfully imported methamphetamine only a few months prior to the period of the conspiracy. Ms Gao and Mr Hsu must have known about this given the evidence, highlighted by the Judge, of their close association with Mr Wu at the time of the importation. In this regard, the challenge by Ms Sellars to the linkage drawn by the Judge between Mr Hsu and Ms Gao, and Mr Wu’s importation, is misplaced. The Judge simply identified specified instances of their connection with aspects of Mr Wu’s importation activities. In doing so, he was not making findings of culpability for the importation that were inconsistent with the jury verdicts.[8]

[14] Third, the facts of the present offending are distinguishable from the facts in R v Naupoto and in R v Briaturi.[9] In those cases, substantial discounts were afforded to reflect the improbability of the importation ever occurring. In Naupoto, the appellant had clearly been duped and there was never any prospect of any methamphetamine importation. In Briaturi, the sentencing Judge was satisfied the appellants were unlikely to be able to achieve the importation 'because they were never going to be able to source the necessary chemicals'.[10] By contrast, in the present case, Ms Gao and Mr Hsu were conspiring with a person of proven ability to import methamphetamine.

[15] Fourth, the uplift for the conspiracy to supply was not excessive. While the supply formed an inherent part of a wider enterprise, it was separate offending by Ms Gao and Mr Hsu warranting a distinct sentence. A relatively modest uplift of two years was not out of range. Furthermore, there was nothing wrong in the discounts of 10 per cent for a guilty plea and of five per cent for personal factors. They were plainly available to the Judge as part of his overall discretion.

[16] Fifth, the parity principle is not engaged by the facts of the present sentences. Mr Wu’s lead charge was the importation. Any apparent disparity between his sentence for the conspiracy to import and the sentences handed down to Ms Gao and Mr Hsu was simply a function of the different charges faced by him and the totality of offending underpinning his sentence.

[17] Finally, stepping back from the finer grain, an effective 10 years six months starting point for conspiracy to import and supply very large quantities of methamphetamine was not out of range. In Banaba v R, this Court adopted a 13 year starting point for three charges of conspiracy to import, involving about 10 kilograms of methamphetamine.[11] Like the present case, this was based on the fact that the conspiracies involved very large commercial quantities of methamphetamine, the enterprises were at an advanced stage, and Mr Banaba played an important role in the operation.[12]

Mr Wu

[18] Mr Chisnall, for Mr Wu, contends that the Judge failed to properly consider Mr Wu’s foreign national status when fixing the sentence. He refers, in particular, to the following paragraph of the Judge’s decision:[13]

[50] Nothing has changed since that decision [R v Alquist] weakening the need for the Courts to sufficiently discourage persons from bringing drugs into New Zealand. The only thing that has changed is that there is perhaps an even firmer resolve to deter such offending. There may well be classes of cases where a discount might be available to a foreign national on a sentence of imprisonment for such things as bad driving causing death. That might be something never contemplated upon arrival but for you, Mr Wu and Mr Wang, the position is different. So in my view drug importation is not one of the class of cases where I should make a differentiation so I decline to give any discount to reflect your citizenship and all [that] comes with that.

[19] This passage is said to reveal that Judge Ronayne adopted a fixed rule approach to serious drug offending, rather than an orthodox application of sentencing principles, including having regard to the personal circumstances of each offender. We are invited to consider whether this is treated as a presumption and thus too rigidly applied, which risks causing undue hardship to foreign offenders. Mr Chisnall referred to UK research which shows that the welfare of the prisoner is linked to his or her nationality, immigration status and maintenance of family ties.

[20] We agree with Mr Chisnall that it would not be appropriate to apply a fixed rule that discounts for foreign nationality will never be available for offending of the present kind. The Sentencing Act 2002 requires a sentencing Judge to consider, among other things, whether a sentence of imprisonment would be disproportionately severe on the prisoner.[14]

[21] We also accept that the effects of dislocation from family and culture may result in a sentence being disproportionately severe on a foreign national. The UK reports cited by Mr Chisnall identify the types of dislocation effects on foreign prisoners that might be relevant to the assessment of the severity of a sentence.[15] Relevantly, one reason for the increased number of foreign nationals in UK prisons is the increased sentence lengths for drug importation offences.[16] Anne Owers, HM Chief Inspector of Prisons, noted in 2006:[17]

As the report makes clear, foreign nationals, though a divergent group, have a recognisable cluster of specific needs. Our research identified three that are both serious and prevalent, across all groups. They are: language, family links and immigration. The three are interlinked, and can result in isolation, depression and confusion. Family links were particularly important for women prisoners, many serving long sentences for drug importation; while young prisoners tended to be unaware of the serious potential consequences of their sentences.

[22] Simple things also impact more severely on a foreign prisoner, including diet, religious needs and telephone costs. Cultural indifference or, worse, racism is another problem.[18]

[23] But without in any way criticising Mr Chisnall’s helpful submissions, this is not the proper case for formulating general guidance on discounts for dislocation effects. There is no evidence before us on the effects of dislocation on foreign nationals in New Zealand and there is scant evidence to show that imprisonment will be disproportionately severe for Mr Wu because of dislocation effects.

[24] Another difficulty is that Mr Wu, more than most, engages the need for deterrence. He has come to New Zealand for the sole purpose of importing methamphetamine and has recruited others in New Zealand to do the same.

[25] In any

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event, we consider that the Judge took a generous approach to Mr Wu’s minimum sentence by calculating it by reference to the sentence for the lead charge rather than the end sentence for all charges. Given that he was also afforded a five per cent discount on the conspiracy charge, we are satisfied that the sentence imposed overall was fair to Mr Wu. Result [26] The appeals against sentence are dismissed. ----------------------------------------------- [1] R v Gao [2017] NZDC 13444 at [13]–[15]. [2] R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA) at [36]. [3] R v Naupoto [2012] NZHC 3138. [4] R v Briaturi [2008] NZCA 412. [5] R v Lawson [1982] NZCA 67; [1982] 2 NZLR 219 (CA) at 222–223. [6] R v Gao, above n 1, at [29]. [7] At [30]. [8] Acts following the importation cannot themselves be the basis for liability. See R v Hancox [1989] NZCA 160; [1989] 3 NZLR 60 (CA). [9] R v Naupoto, above n 3, at [9] and [16]; and R v Briaturi, above n 4, at [46]. [10] R v Briaturi, above n 4, at [46]. [11] Banaba v R [2016] NZCA 122 at [38]. [12] At [34]-[38]. [13] R v Gao, above n 1, at [50]. [14] Sentencing Act 2002, s 8(h). [15] Magali Barnoux and Jane Wood 'The specific needs of foreign national prisoners and the threat to their mental health from being imprisoned in a foreign country' (2013) 18 Aggress.Violent Behav. 240, at [3.1]–[3.2]. [16] HM Inspectorate of Prisons Foreign national prisoners: a thematic review (July 2006) at 3. [17] At 1. [18] At 9–10.
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