IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA9/2018
 [2019] NZCA 457

	
BETWEEN	
KAZUKI KEINO
Appellant	
	
AND	
THE QUEEN 
Respondent	

Hearing:	
29 May 2019	

Court:	
Collins, Peters and Mander JJ	

Counsel:	
S J Gray for Appellant
P D Marshall for Respondent 	

Judgment:	
26 September 2019 at 3.30 pm	

JUDGMENT OF THE COURT

A	The application to appeal out of time is granted.
B	The application to adduce further evidence is declined. 
C	The appeal against conviction is dismissed.
D	The appeal against sentence is dismissed. 
____________________________________________________________________

REASONS OF THE COURT

(Given by Peters J)
[1]	The appellant, Mr Keino, was convicted of five charges of importing ephedrine, a class B controlled drug, following a jury trial before Judge Patel in the District Court at Manukau in July 2017.  Mr Keino now appeals against conviction and his sentence of nine years, four months’ imprisonment with a minimum period of imprisonment (MPI) of three years, 8 months, a little less than 40 per cent of the end sentence.  
[2]	The appeal against conviction is brought on the ground that a miscarriage of justice has occurred for two reasons.  The first is trial counsel error and the second is that fresh, cogent and credible evidence is available from Mr Keino and Mr Someya, a co-offender.  
[3]	Mr Keino appeals against sentence on the ground that it is manifestly excessive.
[4]	Mr Keino’s notice of appeal was filed out of time.  In order to deal with the merits of the appeal, we grant the extension of time accordingly. 
Background
[5]	The Crown case was that Mr Keino was part of a group that travelled to New Zealand to facilitate the importation of ephedrine, 32.75 kg of ephedrine to be precise.  The group comprised Mr Keino, Mr Iwai, Mr Someya and Mr Hara.  Mr Keino and Mr Iwai arrived in Auckland in early-December 2015.  Mr Someya arrived in Auckland at the end of January 2016.  Mr Hara arrived in Auckland on 25 February 2016.  All were arrested in early-March 2016.
[6]	Customs officers detained Mr Keino at Auckland International Airport on 1 March 2016 when he was seeking to leave New Zealand.  With the assistance of an interpreter, they interviewed Mr Keino, largely in relation to what became known as “import three”.  Import three was a shipment, via DHL, of side tables with 15.8 kg of ephedrine concealed in some of the legs.  
[7]	The customs officers questioned Mr Keino about his activities in New Zealand.  The gist of Mr Keino’s response was that he had been helping a friend, Yugie, who ran a business importing goods.  Mr Keino’s account was that, at Yugie’s request, he had opened post office boxes, collected packages from them and given those packages to Yugie.  He also said that that he had visited DHL’s office at Auckland Airport, again at Yugie’s request, to make enquiries as to whether the package comprising import three had arrived.  Mr Keino said he had done this in return for meals and the occasional drink with Yugie, but mainly in the hope that Yugie would include Mr Keino in Yugie’s import/export business or help Mr Keino set up his own business.  The officers referred to other packages that Mr Keino said he had collected for Yugie.  Mr Keino asked whether they suspected those other parcels contained drugs and the officers said they did.  Mr Keino insisted that his activities in New Zealand were innocent. 
[8]	After the interview, customs officers charged Mr Keino with importation in respect of import three.  Mr Keino appeared in the District Court later that day, and Mr Johnston was assigned to represent him.  Mr Keino was charged in respect of the four other imports in April 2016.  Mr Iwai and Mr Someya were also charged and pleaded guilty in mid-2016.  Mr Hara pleaded guilty in late-2016.
Trial 
[9]	The Crown witnesses included customs officers, ESR personnel and post office employees.  The DVD of the interview of Mr Keino was played and the transcript produced.  The defence elected not to call or give evidence.  The jury delivered (majority) guilty verdicts on 12 July 2017. 
[10]	The principal issue at trial was whether the Crown could prove that Mr Keino knew the various imports contained drugs or was reckless as to the same.  The Crown relied on circumstantial evidence to establish this mens rea element of the offence.  The gist of the defence case, put in cross-examination, was that the Crown could not prove mens rea to the required standard.    
[11]	The Crown case was strong.  Mr Keino and Mr Iwai had said on their arrival cards into New Zealand that they would be here for a week.  Notwithstanding this, Mr Keino and Mr Iwai proceeded to rent a flat in Campbell’s Bay and they also rented several post office boxes (PO Boxes).  Mr Iwai rented three of these PO Boxes and Mr Keino two.  This evidence raised the obvious question of why Mr Keino and Mr Iwai would need one post office box, let alone five.  Imports one, two and four were addressed to three of the PO Boxes.  Mr Keino had three cellphones in his possession when he was arrested.  Photos of Hong Kong Post tracking numbers for imports one and four were found on one or other of the phones.  
[12]	Import three, which we have said contained 15.8 kg of ephedrine, was addressed to the Campbells Bay flat that Mr Keino and Mr Iwai had rented.  A person or persons unknown asked DHL to re-direct import three to the hostel at which Mr Hara stayed after he arrived in Auckland.  By the end of the trial the Judge seems to have been satisfied that it was Mr Keino who sought to arrange this.  A photograph of the DHL air waybill for import three was on one of Mr Keino’s cellphones and Mr Keino also went to DHL at Auckland Airport and made enquiries regarding this import on 29 February 2016.  Mr Keino’s explanation for this in the interview was that Yugie had asked him to make these enquiries, so as to give Mr Keino, who is in his 50s, some practice on precisely that, that is making enquiries.  
[13]	On the face of it, import six contained shelving units.  Tubes for the shelves contained 10.3 kg of ephedrine.  Import six was addressed to a flat in Glenfield which Mr Someya and Mr Keino had rented in early-February 2016.  The tracking number for import six was recorded in a notebook in Mr Keino’s possession at the time of his arrest. 
[14]	 On searching the Glenfield flat in late-March 2016, customs officers located the SIM card for the cellphone number written on the outside of the import six package.  They also found a notebook containing tracking numbers for imports three and six; hand tools, including bolt cutters, an electric drill and a rubber mallet, as well as heavy duty gloves and kitchen scales, all together in a bedroom at the address; and two keys for each PO Box.  Mr Keino had said in the interview that Yugie had the keys, at least to the two PO Boxes that Mr Keino had rented.  
[15]	There was no dispute at trial regarding this evidence.  The only issue was whether it was sufficient for the jury to infer knowledge or recklessness.    
First ground — trial counsel error
[16]	Ms Gray submitted that trial counsel error caused a miscarriage of justice, either because the trial was unfair or because the error gave rise to a real risk that the outcome of the trial was affected.  She submitted that Mr Keino was not sufficiently informed as to the case against him and that his election not to give or call evidence was also insufficiently informed.  In an affidavit sworn on appeal, Mr Keino says that he would have elected to give evidence had he properly understood the case against him, his defence being that he did not know the various packages contained ephedrine and that he was duped by Yugie and Mr Iwai.   
Evidence
[17]	Mr Keino and Mr Johnston swore affidavits on the appeal and Mr Johnston was cross-examined before us.  Ms Higurashi, an interpreter, also swore an affidavit but it adds little to the issues we have to decide.
Mr Keino
[18]	Mr Keino was remanded in custody between his arrest on 1 March 2016 and trial in July 2017.  He does not speak English and he and Mr Johnston communicated via Ms Higurashi.  
[19]	Mr Keino’s evidence on appeal is that he had little time with Mr Johnston before trial.  He had four meetings with Mr Johnston at prison prior to mid‑August 2016, so within the first few months of his arrest, and then nothing until June 2017 which was shortly before trial.  
[20]	Mr Keino says he was not provided with (translated) disclosure by Mr Johnston, that the only document he and Mr Johnston discussed was the summary of facts, and he did not know who was to give evidence for the Crown or what they would say.  The video interview was not translated and Mr Keino states that he had little memory of what he had said until he saw the interview at trial.
[21]	As to his election not to give evidence, Mr Keino says, and this is not disputed, that Mr Johnston advised him not to give evidence.  He says Mr Johnston did not explain cross-examination or re-examination, nor prepare a brief of evidence.  Mr Keino says he knew he had a choice as to whether to give evidence but he followed Mr Johnston’s advice because he thought he had to.  Mr Keino says Mr Johnston thought Mr Keino would be too nervous if he gave evidence and would “accidentally say something [Mr Keino] was not intending to say”.  Mr Keino signed a document provided by Mr Johnston, confirming his election.  Mr Johnston is not now able to produce this document.
[22]	Mr Keino states that Mr Johnston did not discuss the Crown case with him after it closed, but Mr Keino thought the jury would not be able to convict him given his lack of knowledge of the presence of drugs.  
Mr Johnston 
[23]	Mr Johnston rejects these criticisms.  He says that, following one or two unproductive meetings, he and Mr Keino settled on an arrangement whereby Mr Keino would write to Mr Johnston with his questions, Mr Keino’s letter would be translated into English, and Mr Johnston and Ms Higurashi would then discuss the case with Mr Keino and answer his questions.  Discussions occurred at the various one to two hour meetings at the prison, or at a Court appearance.  We note that on the face of a schedule prepared by the Crown, Mr Keino and Mr Johnston met 19 times between Mr Keino’s arrest and before trial, and they would have discussed matters during the trial.    
[24]	Mr Johnston’s evidence was that Mr Keino “knew the entire [Crown] case backwards”, that Mr Keino asked pertinent questions and took copious notes of Mr Johnston’s answers, that he and Mr Keino discussed the summary of facts in considerable detail, and that summary identified much if not all of the critical evidence against Mr Keino.  
[25]	Mr Johnston did not have any documents relating to the case translated in writing for Mr Keino.  His evidence is that doing so would not have altered the way the case was run or his advice that Mr Keino should not give evidence.  Although Mr Johnston states he gave Mr Keino the disclosure, we accept that would be of little use to someone who does not speak English.  
[26]	Mr Johnston’s evidence is that he and Mr Keino had several discussions about whether Mr Keino should give evidence and that he explained the options to Mr Keino. Mr Johnston accepted he did not prepare a brief of evidence but said he considered that unnecessary because Mr Keino was not giving evidence.  He said he would have prepared a brief if Mr Keino had changed his mind.  Mr Johnston also accepted that he did not advise Mr Keino of the difference between statements made in an interview and evidence on oath, but he did not consider this omission made any difference either.  Mr Johnston advised Mr Keino against giving evidence, as Mr Keino had said in his interview that he had been duped by Yugie and that remained (and in fact remains) his defence.  Mr Johnston thought Mr Keino had given a good account of himself in the interview so had little to gain by giving evidence and exposed himself to needless risk, and the risk of giving the Crown more information if he did so.  Mr Keino accepted this advice.  Mr Johnston would also have confirmed Mr Keino’s final instructions after the close of the Crown case.  As to this latter point, there was a day and a half (straddling a weekend) between the close of the Crown case and the point at which Mr Keino had to confirm his election.  
[27]	Ms Gray cross-examined Mr Johnston on whether the account Mr Keino gave in the interview was sufficient, given that much of the circumstantial evidence on which the Crown relied at trial was not put to Mr Keino during the interview.  For instance, the customs officers had not asked Mr Keino about his relationship with the co-offenders, why he had said on his arrival card that he was going to be in New Zealand for a matter of days, for an explanation as to why he had in his possession details of the contact phone numbers written on the outside of various packages, why he had gone to the airport to meet Mr Hara, and what the tools at the Glenfield flat were to be used for.  
[28]	Mr Johnston’s response to this was that the Crown’s circumstantial evidence was not disputed.  Mr Keino had opened two PO Boxes, there were photos of tracking numbers on his phone, he had made enquiries of DHL and so on.  
Was Mr Keino sufficiently informed?
[29]	We do not accept Ms Gray’s submission that Mr Keino was insufficiently informed of the detail of the Crown case, trial procedure, or how his defence was to be presented at trial.  Ms Gray submitted that the letters Mr Keino wrote to Mr Johnston evidence this but we think the opposite.  
[30]	Mr Keino wrote five letters before trial dated 5 August, 2 September, 26 October and 30 December 2016, and 13 February 2017, and one after trial dated 25 July 2017.  We think it is clear from the letters before trial that Mr Keino was familiar with the details of the case against him, and asking appropriate questions.  For instance, in the 2 September letter, Mr Keino states the parcels for imports three and six were addressed to people with Chinese, not Japanese, names and suggests they could not have been for him.  He also says that it was highly improbable these imports were meant for him, given the date those packages arrived and the date on which he proposed to leave New Zealand.  Mr Keino must have obtained the information regarding import six from Mr Johnston, as the matter was not covered in the interview and also the charge in respect of import six was not laid until April 2016.  
[31]	Mr Keino also asked whether the Crown had any “new” evidence against him, asked to know why he had been arrested, and referred to the fact that it was for the Crown to prove Mr Keino knew the imports contained drugs.  He asked what, if any, evidence the Crown had on that issue and whether there was any evidence that he had assisted in the imports.  Mr Keino stated that the fact of the presence of tracking numbers on his phone and in his notebook, and his enquiry of DHL, did not mean that he knew drugs were being imported.  
[32]	Mr Keino also referred in this letter to material discussed at the interview with the customs officers, this being six months after the interview took place.  Accordingly, although Mr Keino says in his affidavit on appeal that he did not recall the interview, he did recall it at the time he wrote his 2 September letter.  
[33]	In his 26 October letter, Mr Keino referred to a question from Mr Johnston about why he had three cellphones in his possession when arrested, and he gave Mr Johnston instructions on that point.  Mr Keino also referred to Mr Johnston telling him that the Crown had abandoned a charge against him (which it had, charge 5), asked why, said he did not know anything about New Zealand law, not even why he was arrested “until you explained to me”, asked how long the trial would be each day and “when someone has a question against me, can I know that in advance?”.  He asked what sort of evidence the Crown would need to present to prove guilt, referred to the fact that Mr Johnston had told him the Crown was not “expecting much from Hara” and asked Mr Johnston to explain the differences between their cases.
[34]	We record that Mr Keino repeated several of the questions in his 26 October letter in subsequent letters.  Ms Gray submitted this indicated Mr Keino did not understand Mr Johnston’s answers.  We think it more likely that these questions and letters fell between meetings.  
[35]	Turning to the letter after trial, Mr Keino criticised several of the Judge’s directions and referred to the Judge’s question trail.  This listed five questions the jury had to answer in respect of each charge.  Mr Keino said that he did not consider the jury would have difficulty on questions one to three which concerned the fact of import and Mr Keino’s assistance of the same, but that he had hoped the jury would struggle with questions four and five, which concerned knowledge, alternatively recklessness.  These are not the comments of someone who did not understand the issues or what had gone on at trial. 
[36]	Given this evidence, we are satisfied Mr Keino understood the case against him and that the issue at trial would be his knowledge/recklessness or the lack of it.  
Election
[37]	Ms Gray submitted that the Crown case was complex and that, in the absence of Mr Keino giving evidence, there was no explanation for various pieces of incriminating evidence.  She submitted that the interview was no answer to the case ultimately brought against Mr Keino, that Mr Johnston needed to advise Mr Keino of that fact, and to advise Mr Keino of the difference between statements made in an interview, such as that conducted with Mr Keino, and viva voce evidence from the witness box.  Ms Gray also submitted that the day and a half between the close of the Crown case and the making of the election was not a substantial period in the scheme of this case.  Moreover, Ms Gray advised that Mr Keino could offer a full explanation of the circumstantial evidence against him, even though that explanation is not in his affidavit on appeal.  However, that explanation should be in his affidavit.  All that Mr Keino says in his affidavit on appeal is that he was duped by Yugie, as he said in his interview, and by Mr Iwai.  That does not assist us.   
[38]	Ms Gray referred us to Chambers v R and Tarring v R as cases on point.  In Chambers, the defendant was clear from the outset that he wished to give evidence.  Trial counsel did not think he should as she thought he would be a bad witness.  This Court said the election is always one for the client to make, after being informed and advised by counsel, and it was not satisfied Mr Chambers had made an informed decision not to give evidence.  It was also a concern that trial counsel did not have Mr Chambers’ version of critical events and that, absent Mr Chambers giving evidence, his account would not be before the jury as he had not made a statement to the police.  This is a point of distinction from the present case.  
[39]	In Tarring, trial counsel advised Mr Tarring not to give evidence.  Mr Tarring understood and accepted counsel’s reasons.  This Court allowed Mr Tarring’s appeal as, amongst other things, trial counsel had failed to “advise fully on the possible advantages of giving evidence”, including explaining fully the differences between “an unsworn police interview and sworn testimony”, and the opportunity the latter gives to build a “rapport with the jury”.  Another issue was trial counsel’s failure to prepare for the possibility that Mr Tarring might elect to give evidence which, on the facts of the case, was “always possible”.  Counsel did not prepare a brief for Mr Tarring or prepare him for cross-examination.  Given these, and other matters, this Court was satisfied Mr Tarring’s election not to give evidence was not a properly informed one.  
Discussion 
[40]	We accept Ms Gray’s submission that the decision of whether or not to give evidence was one for Mr Keino to make, informed as to the advantages and disadvantages of doing so.
[41]	On the evidence before us, Mr Keino made such a decision, with the required information.  We accept Mr Johnston’s evidence that he and Mr Keino had several discussions about whether the latter should or would give evidence; that he, Mr Johnston, advised Mr Keino against doing so for the reasons referred to above; and that Mr Keino’s consistent decision, confirmed in writing, was that he would not give evidence.  Relying on the explanation Mr Keino gave in the interview was a reasonable trial strategy, and Mr Keino’s decision not to subject himself to cross‑examination also a reasonable one in the circumstances.  
[42]	It is correct that some aspects of the Crown case thus went unanswered but, as we have said, they remain unanswered.  Mr Keino must have understood that at the time.  Mr Keino was not “passive”.  He asked appropriate questions and the letter he wrote to Mr Johnston after trial evidences that he understood what was taking place at trial.  He also had a lengthy period on which to reflect on his election.  
[43]	Given these matters, we are not persuaded this is a case in which there was any error or omission raising a real risk that the outcome of the trial was affected.
Second ground — fresh evidence
[44]	Ms Gray also relies on fresh evidence, being the evidence Mr Keino would have given at trial, and the evidence Mr Someya would give if called as a witness.  As Ms Gray acknowledged, the evidence is not fresh as it could have been adduced at trial, but she submitted that it is cogent and credible and that a miscarriage of justice will result if it is excluded, that is it “might reasonably have led the jury to return a different verdict”.  In reply, Mr Marshall submitted that the evidence is not credible, and, in any case, no miscarriage of justice will result if the evidence is excluded.  
[45]	We have already referred to the fact that Mr Keino’s affidavit does not advance matters beyond the explanation he gave in the interview.  His affidavit has assisted in setting out matters relating to this ground of appeal but as it pertains to evidence he would have given at trial, the evidence is not fresh.  As we have said, we accept that Mr Keino made an informed decision that he would not give evidence at trial.  We decline to admit his evidence accordingly.   
[46]	In his evidence, Mr Someya refers to two packages that he, with Mr Keino on the second occasion, received.  Mr Someya’s evidence is that he delivered these to people unknown.  Mr Someya says that, although he was suspicious that drugs were involved and he “felt the whole thing … was dodgy”, he “did not talk to anyone about [his] suspicions”, including Mr Keino, and that Mr Keino was not similarly suspicious.  
[47]	This assertion as to Mr Keino’s state of mind may have corroborated the defence advanced at trial.   On the other hand, and as Mr Johnston said in evidence, Mr Someya is a convicted drug importer.  It is also not credible that he did not share his suspicions with Mr Keino, given that they occupied the Glenfield flat together for a month or so.  We consider Mr Someya’s evidence so implausible that it would be likely to do the defence case more harm than good.  No miscarriage of justice would result from the absence of Mr Someya’s evidence.  We decline the application to adduce this evidence.  
[48]	We dismiss the appeal against conviction. 
Appeal against sentence
[49]	The Judge adopted a starting point of 10 years’ imprisonment.  He then gave Mr Keino a discount of eight months, being about 6.7 per cent of the starting point, to reflect his lack of prior convictions and the fact that, as a foreign national, Mr Keino would find prison more difficult than would otherwise be the case.  This brought the end sentence to nine years, four months’ imprisonment.  The Judge imposed an MPI of 40 per cent, or three years, 8 months.  
[50]	Ms Gray challenges the starting point and the discount.  There is no challenge to the MPI.  
[51]	The Crown submits the end sentence is within range and no reduction is required.  
Starting point 
[52]	The Judge considered a 10-year starting point to be a fair reflection of Mr Keino’s culpability.  He was satisfied that Mr Keino had been convicted on the basis of knowledge, not recklessness; that Mr Keino was a “key” participant in the importations; and that he had played the “most significant” role of the four offenders.  He was in New Zealand for the duration of the offending, had arranged PO Boxes and the two flats, had dealt with the courier firms, the Judge was satisfied that Mr Keino sought to have a package (import three) redirected to Mr Hara’s address and, on arrest, Mr Keino was in possession of information relating to almost all of the imports.  In addition, Mr Keino had been found guilty of importing 32.75 kg of pseudoephedrine, compared to 26.1 kg for Mr Iwai and Mr Someya whose starting points were nine years’ imprisonment.  
[53]	The Judge considered Mr Keino’s offending fell in the mid-range of the eight to 14-year band for principal offenders in large-scale commercial importations in R v Wallace.  The Judge also referred to Brewer J’s decision in Wen v Police, in which the Judge had identified a starting point of between nine and 10 years’ imprisonment for Mr Wen.  Mr Wen’s associates had imported 30.94 kg of pseudoephedrine into New Zealand, concealed in a water filter.  Mr Wen rented a storage unit, liaised with customs regarding the consignment, arranged the delivery of the filter to the storage unit, and obtained tools with which to open the filter.  Brewer J’s assessment was itself based on this Court’s decision in R v Wang.  Mr Wang provided his associates with a place to store an oven containing 11.2 kg of ephedrine.  On a successful Solicitor-General’s appeal, this Court considered a starting point of eight years’ imprisonment was “the lowest available” for Mr Wang.  Brewer J considered Mr Wen more culpable than Mr Wang.  
[54]	Judge Patel considered Mr Keino more culpable than Mr Wen, given the greater number of importations, the greater quantity of ephedrine involved, and Mr Keino’s key role.  Hence the 10-year starting point.  
Parity
[55]	Ms Gray’s principal submission is that the Judge erred in his assessment of Mr Keino’s role and that is why the starting point is excessive.  Ms Gray acknowledges the greater quantity for which Mr Keino was for sentence as opposed to his co‑offenders.  However, she submitted there was no basis for the Judge’s finding that the jury determined Mr Keino was guilty on the basis of actual knowledge rather than recklessness, or on which to determine that Mr Keino had the most significant role.  She submitted that Mr Keino’s actions were consistent with his being a low-level receiver or “catcher” at most, and that his starting point should therefore be no more than the nine years adopted for Mr Iwai and Mr Someya.
[56]	We are satisfied that it was open to the Judge to take the view he did.  He had heard all the evidence, and the basis on which the Crown presented its case as to mens rea.  Moreover, the evidence to which he referred was not in dispute.  This being so, there was a proper basis for the greater starting point he adopted for Mr Keino, and no improper disparity. 
Foreign national prisoner status
[57]	We accept Ms Gray’s submission that Mr Keino faces hardships in prison because of his lack of English, and other matters such as a diet he is not used to, a lack of familial support and his lack of understanding of New Zealand’s social and cultural norms.  Ms Gray submitted that the discount the Judge gave is just too modest for a prisoner in Mr Keino’s position. 
[58]	In support of her submission, Ms Gray referred us to this Court’s decision in Gao v R in which the Court declined to rule out giving a discount for foreign nationality hardship in cases of drug importation.  That statement was made apropos of an earlier statement by this Court in R v Ahlquist.
[59]	That said, discounts for foreign national status in cases of drug importation have been modest, as the offending is such that it carries an inherent risk of imprisonment for a lengthy period in a foreign country.  In Chan v R, this Court said that a discount of, effectively, between two and three per cent at most would ordinarily be available.  In Ayala v R, this Court described a discount of 15 per cent given at first instance as “more generous than this Court has countenanced in cases of international drug trafficking”.
[60]	Crown counsel referred us to several cases in which the discounts given in cases involving similar offending ranged from one to eight per cent.  This is distinct from more substantial discounts given in sentencing for different types of offending.  The underlying rationale for a more modest discount in the case of drug importation still holds good in our view.  We are not persuaded the discount was too modest and decline to increase it.  
Result
[61]	The application to appeal out of time is granted.
[62]	The application to adduce further evidence is declined. 
[63]	The appeal against conviction is dismissed.
[64]	The appeal against sentence is dismissed.

Solicitors
Crown Law Office, Wellington for Respondent