Chiu Tan Yu v R

• Jurisdiction: New Zealand
• Judge: Lang J
• Judgment Date: 17 August 2022
• Neutral Citation: [2022] NZCA 382
• Docket Number: CA44/2022
• Court: Court of Appeal

Between

Chiu Tan Yu

Appellant

and

The Queen

Respondent

[2022] NZCA 382

Court:

Miller, Lang and Cull JJ

CA44/2022

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal Sentencing — appeal against a sentence of 15 years 6 months for importation of methamphetamine — personal circumstances — minimum period of imprisonment — Sentencing Act 2002

Counsel:

S Brickell for Appellant

B D Tantrum and D B Dow for Respondent

The appeal against sentence was dismissed.

• A The application for an extension of time is granted.

• B The appeal against sentence is dismissed.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Lang J)

1 Mr Yu pleaded guilty in the High Court to one charge of importing methamphetamine. 1 On 9 October 2020, Palmer J sentenced Mr Yu to 15 years, six months' imprisonment. 2 The Judge also made an order under s 86 of the

Sentencing Act 2002 (the Act) requiring Mr Yu to serve a minimum term of seven years before being eligible to apply for parole. 3

2 Mr Yu appeals against sentence. 4 He contends the Judge adopted a starting point that was too high, and then failed to give him adequate discounts for mitigating factors. He says this resulted in an end sentence that was manifestly excessive. He also contends the Judge should not have imposed a minimum term of imprisonment.

3 Mr Yu's notice of appeal was filed over one year out of time. He explained his delay by pointing to difficulties finding a lawyer from prison and his limited English language ability. The Crown does not oppose the application being granted and does not point to any prejudice from the delay. Accordingly, we grant the extension of time.

The offending

4 Mr Yu pleaded guilty on the basis of an agreed summary of facts. This recorded that he is a citizen of Taiwan. He arrived in New Zealand with several associates on a three-month visitor's visa on 11 January 2019.

5 Six days later, on 17 January 2019, a shipping container arrived in New Zealand from Long Beach, California. This was found to contain three electric golf carts. The consignees were described as a Ms Goddard and a Mr Lee. The golf carts were inspected by Customs officials and two pistols were found concealed within them. In addition, each golf cart contained modified batteries in which Customs officials found vacuum sealed plastic bags containing methamphetamine.

6 In total, Customs officials removed 110 kilograms of methamphetamine from the batteries and replaced it with a placebo substitute. The Crown estimates the value of the methamphetamine at $17.6 million if sold on a wholesale basis by the kilogram.

7 Between 31 January and 13 February 2019, Mr Yu obtained cash from his co-defendant, a Mr Sun, and used this to pay outstanding storage fees owing on the

container together with other expenses. He also inspected the container and photographed the golf carts

8 By this stage Mr Yu had rented a residential property in Glendene. The freight company that had handled the importation of the container was then advised that the container should be delivered to the Glendene address. This occurred on 15 February 2019. On the previous day Mr Yu had bought a quantity of tools and other equipment from a hardware store.

9 Approximately 15 minutes after the golf carts had been delivered to the Glendene address Mr Yu arrived and began removing the batteries from the carts. He removed a total of 24 batteries and placed these in his vehicle. Later the same day he delivered them to a storage unit in Avondale that Mr Sun had arranged to rent for approximately one month. Over the next week Mr Yu and Mr Sun engaged in coded communications regarding the withdrawal of cash that was to be given to Mr Yu.

10 On 22 February 2019 Mr Yu removed three of the batteries from the storage unit and took them to an address in Flat Bush where he had rented a room the previous day. He also took with him the items he had purchased from the hardware store. Later that day whilst Mr Yu was still at the Flat Bush address, he had a conversation on his cellphone with Mr Lee, who is acknowledged to have been the mastermind behind the importation of the methamphetamine. Mr Lee asked if he had finished yet and Mr Yu told him he was “just sorting it now”.

11 At 9.40 pm the same day the police and Customs officials executed a search warrant at the Flat Bush address. There they discovered Mr Yu with two intact batteries, together with a third battery that he had opened. He was in the process of removing the placebo material and packaging it into plastic zip lock bags. Inside his rented vehicle they discovered the casing for the third battery and a money counting machine.

The sentence

12 There was no dispute that Mr Yu's offending fell within Band 5 identified in Zhang v R, which applies to offending involving more than two kilograms of methamphetamine. 5 Offending within this band will attract a starting point of between ten years and life imprisonment. 6 Placement within bands will be affected by whether the role of the offender is categorised as being lesser, significant or leading. 7

13 The Judge considered Mr Yu's offending fell towards the lower end of the significant category. He identified the following factors as justifying a starting point of 22 years' imprisonment: 8

[14] Mr Yu, I consider you were aware of the scale of the operation and you performed a significant operational role, but you were under the direction of others and did not direct others yourself. I do not accept you would necessarily have been involved in sale of the methamphetamine. But you were more than just a willing worker. You paid fees, rented the storage unit and property, transported the golf carts, obtained the equipment to extract the methamphetamine and extracted it. There is no evidence you were involved through coercion or motivated by addiction but no evidence you expected to share in the commercial profits. It follows that your role was at the lower-level of a significant role in terms of the Zhang categories. I consider it lies somewhere between Mr Yip's more significant role (with regard to significantly more methamphetamine), and the roles of Mr Chiang, Mr Tan and Mr Tran. 9 Accordingly, I consider a starting point of 22 years' imprisonment is appropriate.

(Footnote added.)

14 The Judge then applied a discount of two years, or just under ten per cent, to reflect mitigating factors personal to Mr Yu. These included lack of previous convictions, the impact on him of serving a prison sentence in a foreign country and his expression of remorse. 10 He applied a further discount of four and a half years, or approximately 20 per cent, to reflect the guilty plea. 11 This resulted in the end sentence of 15 years, six months' imprisonment. 12

15 The Judge also considered that s 86 of the Sentencing Act was engaged. He ordered Mr Yu to serve a minimum term of imprisonment of seven years, or approximately 45 per cent of the sentence, before being eligible for parole. 13 In this context the Judge observed:

[23] In Zhang, where the end sentence [for Mr Zhang] was eight years and six months' imprisonment, the Court of Appeal upheld a minimum period of imprisonment of 50 per cent of the end sentence. The Court said the imposition of a lengthy minimum period should be reserved for cases involving “significant commercial dealing”. I consider this is such a case and that release after around five years would be insufficient to denounce and hold you accountable for your offending. I impose a minimum period of imprisonment of seven years or around 45 per cent of the end sentence.

(Footnotes omitted.)

Grounds of appeal

16 On Mr Yu's behalf Mr Brickell contends the Judge erred in selecting a starting point of 22 years' imprisonment. He contends an appropriate starting point would have been 19 to 20 years' imprisonment.

17 Mr Brickell also submits the Judge ought to have provided Mr Yu with a greater discount than ten per cent to reflect his previous good character, his prospects of rehabilitation and his low risk of reoffending. He says the Judge should also have applied a discount of at least five per cent to reflect the hardship Mr Yu will suffer as a foreign national serving a lengthy sentence of imprisonment in New Zealand. Finally, he says a further reduction of five per cent would have been appropriate to reflect Mr Yu's remorse. Although he does not consider it generous, Mr Brickell does not challenge the discount of 20 per cent the Judge applied to reflect the guilty plea.

Starting point

18 Mr Brickell contends the Judge failed to give adequate recognition to the fact that Mr Yu had a limited operational role in the organisation that imported the methamphetamine. He says that both Mr Lee and Mr Sun were above Mr Yu in the hierarchy of the organisation, and that the Judge erred in categorising his role as falling

within the lower end of the significant category. He contends Mr Yu's role should be classified as falling within the “lesser” category

19 In this context Mr Brickell points out that Mr Yu had no influence on those above him in the hierarchy. He therefore performed no management function within the organisation. Furthermore, although he must have had some awareness of the scale of the operation, there was nothing to suggest he knew the quantity of the drugs being imported.

20 Mr Brickell also points out that, as is evident from the passage set out above at [13], the Judge was influenced by the starting point adopted at first instance in R v Tran. 14 Mr Brickell submits that the offender in that case performed functions comparable to those undertaken by Mr Yu. The Judge at first instance had selected a starting point of 21 years' imprisonment for Mr Tran. Upon appeal, however, this Court held that the starting point should have been no more than 19 years' imprisonment. 15 Mr Brickell contends that the starting...