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Zhang v R [2019] NZCA 507

21 October 2019

Decision

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Media release

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Summary

Methamphetamine sentencing – guideline judgment

This judgment introduces a new guideline for methamphetamine sentencing. 

When setting the starting point for methamphetamine offending, the quantity band structure from R v Fatu [2006] 2 NZLR 72 (CA) is retained as a reasonable proxy for the social harm done by the drug and the illicit gains made from making, importing and selling it, but with significant modification (including removing the distinction between supply, importation and manufacture, adjusting the sentence ranges for each band and creating a new band five for quantities in excess of 2 kilograms), as set out below:

 

 

Former:  Fatu

New:  Zhang

Band one:  < 5 grams

2 – 4.5 years

Community – 4 years

Band two:  < 250 grams

3 – 11 years

2 – 9 years

Band three:  < 500 grams

8 – 15 years

6 – 12 years

Band four:  < 2 kilograms

10 years to life

8 – 16 years

Band five:  > 2 kilograms

10 years to life

10 years to life

 

However, the role played by the defendant is also an important consideration in setting the starting point, in order to assess the seriousness of the conduct and the criminality involved in the offending.  Diminished role may result in an offender moving not only within a quantity band but also between bands.  Sentencing judges may find it helpful to use the United Kingdom Sentencing Council’s categorisations of role (into lesser, significant and leading), categorisations which are used in analysing the individual appeals before the Court.

At the second stage of the sentencing exercise, personal mitigating circumstances relating to the offender are applicable to all instances of Class A drug offending, as in the case of any other offending.  In the context of methamphetamine offending, certain factors will be particularly relevant, including addiction, which may need to be considered in combination with mental health issues, and poverty and deprivation where that has impaired choice and diminished moral culpability.  Counsel and sentencing judges are encouraged to make greater use of the power in s 25 of the Sentencing Act 2002 to adjourn sentencing to enable rehabilitation programmes to be undertaken.

Minimum periods of imprisonment must not be imposed as a matter of routine or in a mechanistic way.  A reasoned analysis is required under s 86 of the Sentencing Act.  Deterrence, denunciation and accountability are likely to be at the forefront of decisions in drug cases where a minimum period of imprisonment is imposed, generally in cases involving significant commercial dealing.  Potential deportation of an offender is not a relevant consideration.

The judgment applies to all sentencing taking place after the judgment is issued, regardless of when the offending took place.  It applies to sentences that have already been imposed where an appeal against sentence has been filed before the judgment was delivered and the application of the judgment would result in a more favourable outcome for the appellant.

Individual appeals

Leanne Maree Crighton

Leave to bring second appeal against sentence granted.  Appeal allowed.

Ms Crighton was convicted on 11 charges of offering to supply methamphetamine, three charges of supplying methamphetamine, one charge of possessing methamphetamine and other minor offending.  Ms Crighton was sentenced by Judge Zohrab in the District Court at Nelson to 22 months’ imprisonment on these charges.  Her first appeal against sentence was dismissed by Cooke J in the High Court at Nelson.  Ms Crighton seeks leave to bring a second appeal against sentence only.

Criminal law — Sentence.  Whether the Judge erred in imposing a manifestly excessive sentence.

Held: yes.  Applying the new guidelines, the appropriate starting point is two years’ imprisonment, reflecting the quantity involved (3.75 grams, falling into band one) and Ms Crighton’s role (in the “lesser” category, characterised by lack of influence over those above her in the chain of operations, lack of awareness of the scale of the operation and little or no actual or expected gain, the offending having occurred to pay for her own drug use and that of her partner). 

A 30 per cent discount is warranted to reflect Ms Crighton’s personal circumstances, involving both mental health and addiction vulnerabilities.  To that end, Ms Crighton adduced evidence establishing a causative link between her use of methamphetamine and her offending.  A further discrete discount of 25 per cent for the guilty pleas applies.  This would reduce Ms Crighton’s sentence to 12 months’ imprisonment.

Jonelle Rachel Phillips

Leave to appeal out of time granted.  Leave to adduce further evidence on appeal declined.  Appeal allowed.

Ms Phillips was convicted on two charges of supplying methamphetamine, one representative charge of supplying methamphetamine, one charge of possessing methamphetamine for supply, one charge of possessing a Class B controlled drug, one representative charge of supplying cannabis and one charge of possessing cannabis for supply.  Ms Phillips was sentenced by Collins J in the High Court at Wellington to four years and three months’ imprisonment on these charges.  Ms Phillips appeals against her sentence only.

Criminal law — Sentence.  Whether the Judge erred in imposing a manifestly excessive sentence.

Held: yes.  Applying the new guidelines, the Judge’s five year starting point falls below the applicable quantity band (at least six kilograms, in band five) but reflects the very limited role played by Ms Phillips in an operation essentially conducted by her partner (at the bottom end of the “lesser” category).  The one year uplift for Ms Phillips’ personal drug dealing charges was appropriate, resulting in a global starting point of six years.  A six month uplift for Ms Phillips’ relevant previous convictions was also appropriate.

In terms of personal mitigating factors, the three month discount for remorse and six month discount for time spent on restrictive bail conditions were not challenged on appeal.  A 30 per cent discount is warranted to reflect the fact that Ms Phillips’ mental health and addiction issues were causative of her offending and that her personal circumstances would render a sentence of imprisonment more severe than for another offender, and to reflect her progress toward rehabilitation.  The 15 per cent guilty plea discount is upheld.  Ms Phillips’ sentence is therefore quashed and substituted with a sentence of three years and two months’ imprisonment.

Jacqueline Josephine Hobson

Leave to appeal out of time granted.  Appeal allowed.

Ms Hobson was convicted on three charges of importing methamphetamine, three charges of possession of methamphetamine for supply and one charge of conspiracy to import methamphetamine.  Ms Hobson was sentenced by Judge Andrée Wiltens to nine years’ imprisonment with a four and a half year minimum period of imprisonment (MPI) on these charges.  Ms Hobson appeals against her sentence (including the imposition of the MPI).

Criminal law — Sentence.  Whether the Judge erred in imposing a manifestly excessive sentence.

Held: yes.  Applying the new guidelines, the appropriate starting point on the importation charges is nine years’ imprisonment, reflecting the quantity (a minimum of 300 grams, falling into band three) and Ms Hobson’s role (at the lower end of the “leading” category, being primarily motivated by financial gain, having a management function and communicating with the supplier in Thailand, but in a relatively unsophisticated operation).  A nine month uplift is appropriate to reflect the conspiracy charge, being half the increase warranted had the offence been completed. 

The 20 per cent global discount for personal factors is warranted on the basis that a 10 per cent discount for Ms Hobson’s potential for rehabilitation and a 10 per cent discount for her guilty plea is generous but within range.  Ms Hobson’s sentence is therefore quashed and substituted with a sentence of seven years and ten months’ imprisonment.  No adjustment is required for parity, given Ms Hobson was significantly more culpable than her co-offender.

Criminal law — Sentence — minimum period of imprisonment.  Whether the Judge erred in imposing a minimum period of imprisonment.

Held: yes.  There was nothing out of the ordinary about Ms Hobson’s offending.  The operation was relatively small and the information available indicates that there are at least reasonable rehabilitative prospects.  In these circumstances, the concerns of deterrence or community protection (or any of the other purposes in s 86(2) of the Sentencing Act 2002) are not engaged such as to warrant the imposition of an MPI.

Jing Yuan Zhang

Appeal dismissed.

Mr Zhang was convicted on one charge of importing methamphetamine and was sentenced by Judge Johns in the District Court at Manukau to eight years and six months’ imprisonment with a four year and three month MPI.  Mr Zhang appeals against the imposition of the MPI only.

Criminal law — Sentence.  What is the appropriate sentence under the new guidelines.

Held: Although Mr Zhang did not appeal his sentence, we comment on how the new guidelines would apply to his offending.  The appropriate starting point would be 15 years’ imprisonment, having regard to the quantity (17.9 kilograms, well over the band five threshold) and Mr Zhang’s role (at the lower end of the “significant” category, serving as an operational function within a chain, travelling to New Zealand and taking steps to ensure the consignment cleared customs, as well as taking actions that indicated he was intending to package the drugs for sale, but no indication that he was to take an active role in the supply stage of the operation).

The 50 per cent global discount given by the Judge could properly be divided into a 30 per cent discount for personal mitigating factors and a 20 per cent discount for the guilty plea.  This would have resulted in an end sentence of eight years and five months’ imprisonment.  Had the sentence been challenged, we would not have disturbed it on appeal on the basis of this one month reduction.

Criminal law — Sentence — minimum period of imprisonment.  Whether the Judge erred in imposing a minimum period of imprisonment.

Held: no.  As Mr Zhang is a first time offender assessed at a low risk of reoffending, an MPI would not be warranted on the basis of community protection alone.  However, this was knowing participation in substantial, commercial scale drug offending with potentially very serious social consequences, unmitigated by any vulnerability.  For Mr Zhang to be eligible for release after just two years and 10 months’ imprisonment would send an unacceptable message to those included to participate in commercial scale drug offending.  Deterrence, denunciation and accountability all warrant the imposition of a 50 per cent MPI.

Shane Thompson

Leave to appeal out of time granted.  Appeal dismissed. 

Mr Thompson was convicted on one representative charge of supplying methamphetamine and one charge of possessing methamphetamine for supply.  Mr Thompson was sentence by Judge Rea in the District Court at Napier to 13 years’ imprisonment on these charges, with a six and a half year MPI.  Mr Thompson appeals against the imposition of the MPI only.

Criminal law — Sentence.  What is the appropriate sentence under the new guidelines.

Held: Although Mr Thompson did not appeal his sentence, we comment on how the new guidelines would apply to his offending.  The appropriate starting point would be 16 years’ imprisonment on the supply charge, reflecting the quantity (4.2 kilograms, in band five) and Mr Thompson’s role (at the top end of “leading”, being the principal offender in a large methamphetamine distribution network).  A two year uplift to reflect the possession for supply charge is also appropriate, meaning the Judge’s 18 year starting point for both charges is within range.

The discounts awarded by the Judge, being six months for time spent on electronically monitored bail, three months for forfeiture of certain vehicles and 25 per cent for the guilty plea, were orthodox.  The end sentence is therefore within range.

Criminal law — Sentence — minimum period of imprisonment.  Whether the Judge erred in imposing a minimum period of imprisonment.

Held: no.  Although Mr Thompson’s acceptance of responsibility, family support and the assessment of a low risk of reoffending diminish the need for community protection, a 50 per cent MPI was nonetheless appropriate in this instance.  Accountability for the harm done to the community and denunciation assume particular importance given the size and scale of the operation, and the absence of addiction in fact renders Mr Thompson’s offending more serious.  Willingness to accept responsibility, commendable as this is, does not detract from this analysis. 

Lok Sing Yip

Leave to appeal out of time granted.  Appeal allowed.

Mr Yip was convicted on two charges of importing methamphetamine, two charges of supplying methamphetamine, one charge of attempting to supply methamphetamine and two charges of possessing methamphetamine for supply.  Mr Yip was sentenced to 16 years and six months’ imprisonment on these charges, with an eight year MPI.  Mr Yip appeals against his sentence (including the imposition of the MPI).

Criminal law — Sentence.  Whether the Judge erred in imposing a manifestly excessive sentence.

Held: yes.  Applying the new guidelines, the appropriate starting point is 23 years’ imprisonment, reflecting the extremely high quantity (60.9 kilograms, well exceeding the threshold for band five and being the second largest seizure of imported methamphetamine at the time of sentencing) and Mr Yip’s role (mid-to-lower level of “leading”, given Mr Yip’s relative importance in the hierarchy of the organisation and oversight over co-offenders, as well as financial motivation, but having regard also to the relatively low level of compensation in proportion to the quantity of drugs and the fact Mr Yip was not a leader of the organisation).

The three year discount for Mr Yip’s personal circumstances, including youth, genuine remorse, lack of prior convictions, limited English and lack of family support in New Zealand, was appropriate, and the 25 per cent discount for Mr Yip’s guilty plea, although generous, will not be disturbed on appeal.  Mr Yip’s sentence is therefore quashed and substituted with an end sentence of 15 years’ imprisonment.

Criminal law — Sentence — minimum period of imprisonment.  Whether the Judge erred in imposing a minimum period of imprisonment.

Held: no.  This was knowing participation in a substantial, commercial scale drug offending with potentially extremely serious social consequences.  Mr Yip played a leading role in organising that activity, albeit at a mid-to-lower level, and his participation was unmitigated by vulnerability of any kind.  The sheer scale of the offending engages the purposes of deterrence, denunciation and accountability.  An MPI of 50 per cent was therefore justified.  In light of the change to the end sentence, the MPI is quashed and replaced with an MPI of seven years and six months.