IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA116/2020
 [2020] NZCA 483

	
BETWEEN	
JAVED MOHAMMED PRASAD
Appellant	
	
AND	
THE QUEEN
Respondent	

Hearing:	
30 September 2020	

Court:	
Collins, Mallon and Ellis JJ	

Counsel:	
D S Niven for Appellant
M R L Davie for Respondent	

Judgment:	
14 October 2020 at 9.00 am	

JUDGMENT OF THE COURT

A	The application for an extension of time to appeal is granted.
B	The appeal against sentence is allowed.
C	The sentence of 13 years’ imprisonment is quashed and substituted with a sentence of 10 years’ imprisonment.
D	The minimum period of imprisonment is quashed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)
Introduction
[1]	Mr Prasad appeals a sentence of 13 years’ imprisonment imposed by the District Court at Auckland following pleas of guilty to three charges of importing into New Zealand a total of 7.88 kilograms of methamphetamine.  He also appeals an order that he serve a minimum period of imprisonment (MPI) of seven years’ imprisonment before he is considered eligible for parole.  
[2]	Mr Prasad was sentenced on 8 December 2017.  His notice of appeal was not filed until March 2020.  Mr Prasad has explained that he encountered difficulties in obtaining legal advice and legal aid.  Although the delay in filing the notice of appeal was inordinate, the Crown acknowledges it has not been prejudiced by Mr Prasad’s delay.  We accordingly grant Mr Prasad’s application to extend time for the filing of his appeal.
Background
[3]	Mr Prasad is a Canadian citizen.  He arrived in New Zealand on 23 April 2017 and participated in a well-planned venture to import methamphetamine into New Zealand.
[4]	The first importation was between 3 and 7 May 2017.  It involved Mr Prasad booking accommodation at an Auckland address using an alias.  Mr Prasad received at that address a FedEx package from the United States, which contained a “designer lamp”.  Between 8 and 11 May 2017, Mr Prasad broke open the lamp and removed 2.7 kilograms of methamphetamine.
[5]	The second importation occurred between 8 and 15 May 2017.  During this time Mr Prasad booked accommodation at another address, using a different alias.  Another “designer lamp” was to be delivered to that address from the United States.  That consignment was, however, intercepted by the New Zealand Customs Service.  On inspection, the lamp was found to contain 2.68 kilograms of methamphetamine.
[6]	The third consignment was from Canada.  It was delivered to an apartment Mr Prasad was occupying in Auckland on 16 June 2017.  A search warrant was executed at the apartment where Customs officers located 2.5 kilograms of methamphetamine inside the package from Canada.  A number of cell phones, SIM cards, weighing scales and other evidence of drug dealing was also found in the apartment.
[7]	Mr Prasad was charged on 16 June 2017 and pleaded guilty on 3 November 2017.
Sentencing decision
[8]	Judge Ronayne adopted a starting point of 17 years’ imprisonment.  This was based on the fact that Mr Prasad’s offending fell within band four of R v Fatu, the guideline judgment of this Court for methamphetamine sentencing that applied at the time Mr Prasad was sentenced.
[9]	The Judge then deducted six months’ imprisonment to reflect Mr Prasad’s lack of previous relevant convictions and remorse, and 42 months (just over 20 per cent) to acknowledge his guilty plea.
[10]	Judge Ronayne briefly dealt in the following way with the decision to impose an MPI:
[T]here is clearly a need to sufficiently address the statutory purposes of sentencing and particularly to hold you accountable and to generally denounce and deter large scale trafficking of methamphetamine.  A minimum statutory non-parole of one-third is insufficient to meet those imperatives.  Therefore, I impose a minimum period of imprisonment of seven years, which is a shade over 50 per cent.
Grounds of appeal
[11]	Mr Niven, counsel for Mr Prasad, submitted that the starting point adopted by Judge Ronayne was excessive, particularly when regard is had to more recent authorities.  He also argued that the need for an MPI, which, in this case equated to 54 per cent of the end sentence, was not properly evaluated by the District Court Judge.  Mr Niven submitted that there is no need for an MPI in this case because of Mr Prasad’s age, his lack of previous convictions, his remorse and the unlikelihood he will reoffend.
[12]	For the Crown, Mr Davie submitted that although the sentence imposed was “stern”, the starting point adopted by Judge Ronayne was within the range available under Fatu.  Mr Davie also submitted that the MPI imposed in this case was an orthodox response to the seriousness of Mr Prasad’s offending.
Analysis
[13]	We have considered whether Mr Prasad’s appeal should be assessed on the basis of Zhang v R, this Court’s most recent methamphetamine sentencing guideline judgment.
[14]	In Zhang, this Court said its new guideline judgment:
… applies to all sentencings that take place after the issue of this judgment [21 October 2019] regardless of when the offending took place.  It applies to sentences that have already been imposed, if and only if two conditions are satisfied: (1) an appeal against the sentence has been filed before the date the judgment is delivered; and (2) the application of the judgment would result in a more favourable outcome to the appellant.
[15]	Mr Niven accepted it is difficult to apply the first of these criteria to Mr Prasad’s circumstances, even though he had taken some, albeit unsuccessful steps to file an appeal before the Zhang judgment was delivered.  While we will not apply the Zhang methodology to Mr Prasad’s appeal, we do not think he will be disadvantaged in any material way by the approach we are taking.
Starting point
[16]	The starting point adopted by Judge Ronayne was heavily influenced by R v Wong and R v Nguyen, two judgments of this Court delivered eight years before Mr Prasad’s sentencing.  
[17]	Mr Wong had come to New Zealand to complete the importation of two kilograms of methamphetamine into New Zealand from Canada.  After categorising Mr Wong’s role as a “manager or organiser” the sentencing Judge adopted a starting point of 15 years’ imprisonment.  The end sentence was reduced to 11 years and three months’ imprisonment after making deductions for Mr Wong’s early guilty plea and other personal mitigating factors.  An MPI of 50 per cent was imposed in Mr Wong’s case.  The end sentence and MPI were upheld by this Court.
[18]	Mr Nguyen was a Vietnamese national who was illegally in New Zealand.  He became involved in the importation of 1.7 kilograms of methamphetamine.  His role in the importation was very similar to that of Mr Prasad.  At the time of his arrest, Mr Nguyen was also found to be engaged in a sophisticated cannabis growing operation.  The sentencing Judge adopted a 16-year starting point for the charge of importing methamphetamine.  That starting point was increased to 18 years’ imprisonment to reflect the cannabis growing operation.  The Judge deducted nine years (50 per cent) to reflect Mr Nguyen’s early guilty plea and other mitigating factors that were referred to in a memorandum.  The Judge also imposed an MPI of four and a half years.  On appeal, no issue was taken with the starting point.  Instead, counsel sought an even greater deduction for mitigating factors and the removal of the MPI.  In dismissing the appeal, this Court took no issue with the starting point adopted by the sentencing Judge.
[19]	The starting points adopted in Wong and Nguyen were heavily influenced by what was then rightly regarded as very significant amounts of methamphetamine that were involved in the offending and the roles of the defendants.  Since those cases were decided the courts have seen a number of cases involving vastly greater amounts of methamphetamine than was found in Wong and Nguyen and yet starting points akin to Wong and Nguyen have been adopted.  
[20]	For example, in R v Berkland Mr Berkland was sentenced in 2018 under the Fatu guidelines.  He was the second in charge of a sophisticated drug organisation and had obtained 15 kilograms of methamphetamine and on-sold it at a rate of about one kilogram per week.  On appeal, this Court endorsed the 16 and a half year starting point adopted in that case.  In another case, Pai v R, this Court endorsed a starting point of 15 years’ imprisonment for a defendant who played a very similar role to Mr Prasad in importing 22.6 kilograms of methamphetamine.  Mr Pai was also sentenced under the Fatu guidelines.  In R v Le’Ca a starting point of 18 years’ imprisonment was chosen, in light of Fatu, for possession of 14.9 kilograms of methamphetamine for supply and a two‑year uplift applied for importing 1.362 kilograms of methamphetamine.  Mr Le’Ca’s co-offender, Mr Uputaua was given a starting point of 15 years’ imprisonment on the possession charge, reflecting his less-central role in the organisation, and a similar two-year uplift for importation.
[21]	We accept that the methamphetamine involved in Mr Prasad’s offending was significant, albeit much less than the amounts seen in the cases we have referred to at [20].
[22]	The Fatu sentencing methodology required sentencing judges to have regard to the role of the defendant in the operation and not simply assess the starting point by reference to the quantity of methamphetamine involved in the offending.
[23]	Mr Prasad’s role can be accurately described as that of a “catcher”.  His task was to receive the methamphetamine that arrived in New Zealand.  Others were apparently responsible for the distribution of the drugs.  Significantly, there is no evidence to suggest Mr Prasad was a “manager or organiser”.  On the contrary, Mr Prasad’s financial return for his role in the operation suggests he was well below that of a “manager”.  He was to receive between $6,000 to $12,000 per delivery, which is a low return on consignments worth somewhere between $3.9 and $7.8 million.
[24]	In our assessment, a consistent and correct application of the Fatu methodology should have resulted in a starting point of no more than 14 years in this case.
Deductions
[25]	Judge Ronayne deducted approximately 20 per cent from the adjusted starting point to reflect Mr Prasad’s guilty plea.  
[26]	The guilty plea appears to have been entered early in the process.  We are satisfied Mr Prasad was entitled to close to a 25 per cent discount which, following this Court’s judgment in Moses v R, should be deducted at the second stage of the sentencing analysis.
[27]	No issue can be taken to the six months’ deduction for Mr Prasad’s lack of previous relevant convictions in Canada and remorse.
[28]	Applying these deductions produces a sentence of 10 years’ imprisonment.
MPI
[29]	This Court reiterated in Zhang that MPIs must not be imposed as a matter of routine or in a mechanistic way.  It is not sufficient for a Judge simply to recite s 86 of the Sentencing Act 2002 without more.  “A reasoned analysis is required, both as regards the imposition of a minimum period of imprisonment and its length.”  This Court was concerned about a perception that end sentences of nine years or more seem to automatically trigger an MPI.  The Court in Zhang warned that if there were such a practice then it had to cease.
[30]	Consistent with many sentencing decisions which predate Zhang, we can see little explanation in the District Court sentencing decision as to why an MPI was considered necessary in this case.  
[31]	The factors that weigh against the imposition of an MPI in Mr Prasad’s case, and which were not assessed by Judge Ronayne are:
(a)	Mr Prasad’s age.  He was 24 at the time he was sentenced.
(b)	Mr Prasad’s lack of previous criminal offending.  He has one conviction relating to driving offending in Canada.
(c)	Mr Prasad’s remorse.  Judge Ronayne seemed to accept that a letter of remorse written by Mr Prasad was genuine, but the Judge failed to take this factor into account when assessing the need for an MPI.
(d)	The low likelihood of Mr Prasad reoffending.  The pre-sentence report said that Mr Prasad was “assessed as being of a low likelihood of reoffending due to this being his first offence before the Courts in New Zealand and his apparent genuine desire not to repeat [his] mistake”.
[32]	The Court should be hesitant to impose an MPI upon a defendant who presents with a low likelihood of reoffending.
[33]	A sentence of 10 years’ imprisonment without an MPI will satisfy the objectives of s 86(2) of the Sentencing Act.  In particular, such a sentence will:
(a)	hold Mr Prasad accountable for the harm he has done to the New Zealand community by his offending;
(b)	denounce his conduct;
(c)	deter Mr Prasad and others from similar offending; and
(d)	protect the community from Mr Prasad.
[34]	In these circumstances, we see no need for an MPI and quash the order for an MPI made in the District Court.
Result
[35]	The application for an extension of time to appeal is granted.
[36]	The appeal against sentence is allowed.
[37]	The sentence imposed in the District Court is quashed and substituted with a sentence of 10 years’ imprisonment.
[38]	The order for an MPI made in the District Court is also quashed.

Solicitors:
Crown Law Office, Wellington for Respondent