Ah You v The Queen - [2013] NZCA 116

IN THE COURT OF APPEAL OF NEW ZEALAND

CA64/2012
[2013] NZCA 116

BETWEEN CAM CAU LOT
Applicant

AND THE QUEEN
Respondent

Hearing: 11 April 2013

Court: Stevens, Allan and Clifford JJ

Counsel: R M Mansfield for Applicant
J M Jelas for Respondent

Judgment: 19 April 2013 at 3.00 pm

JUDGMENT OF THE COURT

The application for an extension of time within which to appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Clifford J)

Introduction

The applicant, Cam Cau Lot, was convicted after a jury trial in the High Court in June 2010 on four charges of offering to supply methamphetamine, two charges of conspiracy to supply methamphetamine and three charges of supplying methamphetamine. Mr Lot had earlier pleaded guilty to possession of a Class B controlled drug. On 17 September 2010 Mr Lot was sentenced by Rodney Hansen J to 12 years’ imprisonment, with a minimum period of imprisonment of five years.[1]
[1] R v Lot HC Auckland CRI-2008-004-18323, 17 September 2010.
Mr Lot now applies for an extension of time within which to appeal against that sentence.[2] Mr Lot’s single ground of appeal is that his previous good character should have been recognised by way of some discount from the 12 year starting point sentence identified by the Judge which, in the absence of any aggravating or mitigating factors personal to Mr Lot, became the end sentence. Mr Lot does not challenge his minimum period of imprisonment.

Application for an extension of time

[2]Mr Lot originally applied for an extension of time in respect of both his conviction and sentence appeals. The application as regards conviction was abandoned shortly prior to hearing.

Any appeal by Mr Lot against his sentence was to be filed within 28 days of 17 September 2010, namely by 15 October 2010. Mr Lot did not file his appeal until 2 February 2012. Mr Lot has not provided an affidavit setting out the reasons for delay in filing, nor did Mr Mansfield address the Court on that matter.
In those circumstances, the Crown opposed the application for an extension. In the absence of any explanation whatsoever as to why this appeal was filed out of time, we decline to grant an extension of time.
We will, nevertheless, deal with the substance of Mr Lot’s appeal as we are satisfied it has no merit in any event.

Facts

As reflected in the unchallenged starting point sentence, Mr Lot’s methamphetamine offending was serious involving methamphetamine exceeding 500 grams.[3]
[3] R v Lot, above n 1, at [43].
More relevant for the purposes of this appeal, the Judge summarised Mr Lot’s personal circumstances in the following way:
[45] You are a 38-year-old man. You were born in Cambodia, arriving in New Zealand when you were about seventeen years of age. You are the youngest in a family of ten, some of whom are deceased but your sister, four brothers and your mother reside in New Zealand. You have four children aged 15, 14,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ah You v The Queen

Details

AGLC: Ah You v The Queen [2013] NZCA 116
Case: [2013] NZCA 116
Decision Date: 15 February 2013

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the applicant Cam Cau Lot appealed against his sentence of 12 years' imprisonment with a minimum period of five years for drug-related offenses. The appeal sought an extension of time to challenge the sentence, which was filed beyond the statutory limit. The key issue was whether the judge should have applied a discount to the sentence based on the applicant's previous good character and lack of prior convictions. The Court found that while the judge had considered the applicant's personal circumstances, they did not warrant a discount from the sentence due to the nature of the offenses. The Court highlighted that for serious drug offenses, deterrence must take precedence over personal circumstances, unless they directly contributed to the offending or were based on compassionate grounds. The Court concluded that the judge's approach was correct and that the appeal had no merit. The application for an extension of time was dismissed, and the appeal against the sentence was dismissed as well.

Orders