Bi v R - [2014] NZCA 10

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 551/2013
[2014] NZCA 10

BETWEEN	DESHENG BI Appellant
AND	THE QUEEN Respondent

Hearing:	11 February 2014
Court:	Harrison, Asher and Dobson JJ
Counsel:	P J Kaye for Appellant G H Vear for Respondent
Judgment:	19 February 2014 at 4.00 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Harrison J)

Introduction

Desheng Bi was found guilty on charges of importing and possessing for supply the Class C drug pseudoephedrine following his trial before Judge Recordon and a jury in the District Court at Auckland. He was convicted and sentenced to nine and a half years imprisonment. [1]
[1]R v Bi DC Auckland CRI-2011-004-8030, 7 August 2013.
Mr Bi appeals against his sentence on the ground that it is manifestly excessive. In particular he says that (a) there was a gross disparity between his sentence and that imposed on his co-offender; and (b) the sentence offends the totality principle.

Facts

In February 2011 Mr Bi travelled from New Zealand to Hong Kong to arrange a shipment of furniture from China to New Zealand. Included within the shipment were eight bean-bags within which 30 grey packages were secreted containing a total of approximately 67 kilograms of Contac NT granules. Customs officers intercepted the shipment in Auckland in April 2011 and arranged for a controlled delivery.
Mr Bi had organised the shipment through a customs broker by using a false identity and false customs client code. Following advice from the broker that the shipment was released for delivery, Mr Bi directed his co-accused, Qin Guo, to hire a storage unit in Auckland. Acting on Mr Bi’s instructions, Mr Guo later removed two bean-bags from the storage unit while Mr Bi drove around the facility to check whether the pair were under surveillance. Messrs Bi and Guo then drove around parts of Auckland in separate vehicles before the two bean-bags were transferred to Mr Bi’s custody. He took them to a hotel room in Newmarket. The next day the police arrested Messrs Bi and Guo.
Mr Bi alone was charged with importing pseudoephedrine; Messrs Bi and Guo were charged jointly with possessing the chemical for supply. Each charge carried a maximum sentence of eight years imprisonment. Mr Guo pleaded guilty before trial. He was convicted and sentenced by Judge Dawson to three years and nine months imprisonment.[2] Judge Recordon was aware from expert evidence given at Mr Bi’s trial that 67 kilograms of Contac NT contained just over 27 kilograms of pseudoephedrine. This quantity was sufficient to manufacture between 13.5 and 19.1 kilograms of methamphetamine with a street value of between $13 million and $19 million.

Sentence

[2]R v Guo DC Auckland CRI-2011-004-8030, 23 April 2013.

Judge Recordon adopted a total starting point for Mr Bi’s overall offending of 11 years imprisonment. He did not break down or apportion this total between the two offences. His comments suggest, however, that he applied a starting…

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 Bi v R

Details

AGLC: Bi v R [2014] NZCA 10
Case: [2014] NZCA 10
Decision Date: 19 February 2014 at 4.00 pm

CaseChat Overview and Summary

The appellant, Desheng Bi, has appealed against his sentence following his conviction for importing and possessing for supply the Class C drug pseudoephedrine. The appeal was heard by Harrison, Asher and Dobson JJ in the Court of Appeal of New Zealand. The appellant's counsel argued that the sentence was manifestly excessive, contending that there was a gross disparity between his sentence and that imposed on his co-offender, Qin Guo, and that the sentence offends the totality principle.

The court examined the arguments presented by the appellant's counsel, who argued that there was a significant disparity between the sentences imposed on the appellant and his co-offender, despite the appellant's greater role in the offending. The court rejected this argument, noting that the sentencing judge was in the best position to assess the relative culpability of the parties. The court also considered the argument that the sentence offends the totality principle, noting that the sentencing judge was entitled to impose cumulative sentences where he was satisfied that the maximum penalty on one charge was insufficient to reflect the overall culpability of the offending. The court found that the total sentence was not disproportionate to the gravity of the offending.

The appeal against sentence is dismissed. The court found that the sentence of nine and a half years imprisonment was not manifestly excessive and that the appellant may count himself fortunate that the sentencing judge gave him credit for his previous good character. The court rejected the arguments presented by the appellant's counsel and found that the sentence was proportionate to the gravity of the offending.

Orders