Cai v R

[2012] NZCA 293

IN THE COURT OF APPEAL OF NEW ZEALAND

CA801/2011
[2012] NZCA 293

BETWEEN  JINHUI CAI
Appellant

AND  THE QUEEN
Respondent

Hearing:         18 June 2012

Court:             White, Lang and Clifford JJ

Counsel:         F C Deliu for Appellant
J M Jelas for Respondent

Judgment:      5 July 2012 at 10.30am

JUDGMENT OF THE COURT  

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by White J)

Introduction

1. The appellant pleaded guilty in the District Court at Auckland on 6 October 2011 to the following charges:

   (a)one charge of importing a Class C controlled drug into New Zealand, namely ephedrine and pseudoephedrine;

   (b)one charge of possessing for the purpose of sale a Class C controlled drug, namely ephedrine and pseudoephedrine; and

   (c)one charge of selling a Class C controlled drug, namely ephedrine and pseudoephedrine.

Each of these charges under the Misuse of Drugs Act 1975 carried a maximum penalty of imprisonment of eight years.

1. The appellant was sentenced by Judge Kiernan to six years two months’ imprisonment on each of the offences to be served concurrently.[1]  In doing so she took the importation charge as the lead offence and adopted a starting point of seven years’ imprisonment based on the serious nature of the offending and the appellant’s culpability.  She took into account his role relative to his co-offenders, the quantity of drugs involved (67 kilograms), the value of methamphetamine able to be manufactured from the drugs imported (over $10 million), and a sentence indication which she had given in July 2011 and which had not been accepted by the appellant.[2]  The Judge then uplifted the sentence to seven years six months for the appellant’s previous conviction for importation of ContacNT and, after referring to his personal circumstances and the effect of a prison sentence on him and his family, reduced the sentence by one year and four months (18 per cent) to reflect his guilty plea, which was entered on the eve of his trial.[3]

   [1]      R v Cai DC Auckland CRI-2010-004-6923, 15 November 2011 [R v Cai Sentencing Notes].

   [2]      At [2]–[7], [13] and [15].

   [3]      At [8]–[10], [12], and [14]–[16].

2. The appellant appeals against his sentence on five grounds:

   (a)the Judge adopted a starting point that was too high for the circumstances of the offending and the offender;

   (b)the Judge erred in accepting the street value for pseudoephedrine that was contained in Crown submissions when there was no evidential basis provided by the Crown for that street value;

   (c)the Judge imposed a sentence that was disproportionate to the sentence imposed on Mr Cai’s co-offenders;

   (d)the Judge gave insufficient credit for Mr Cai’s remorse; and

   (e)the Judge had insufficient regard to the effect the length of the custodial sentence would have on the immigration status of the appellant and his family.

3. The appellant also seeks leave to adduce fresh evidence on appeal in the form of affidavits from himself, his wife and an immigration lawyer, in support of the fourth and fifth grounds of appeal.

4. We deal with…