Chai v R

Case [2020] NZCA 202 2 June 2020

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA50/2019
[2020] NZCA 202

BETWEEN	WAI YEW CHAI Appellant
AND	THE QUEEN Respondent

Hearing:	13 May 2020
Court:	Kós P, Venning and Mallon JJ
Counsel:	S Brickell for Appellant E J Hoskin for Respondent
Judgment:	2 June 2020 at 10 am

JUDGMENT OF THE COURT

A The appeal against sentence is allowed.

BThe sentence of 13 years and six months’ imprisonment is quashed and substituted with a sentence of nine years and seven months’ imprisonment.
CThe minimum period of five years and six months’ imprisonment imposed by the District Court is quashed and substituted with a minimum period of three years and 10 months’ imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

Mr Chai travelled to New Zealand from Malaysia for the sole purpose of dealing in drugs. He posed as a tourist, staying for six months. Later he was joined by two compatriots using the same cover. Their role was to receive packages of ephedrine, a precursor substance for methamphetamine, sent from overseas exporters and supply it to others further along the dealing chain. Mr Chai had the additional responsibility of renting residential delivery addresses around Auckland. Most transmissions went undetected, but those intercepted contained some 60 kilograms of ephedrine.
On 10 January 2018 a further package arrived which contained not ephedrine but two kilograms of methamphetamine. Mr Chai intercepted the (legitimate) courier driver at the delivery address and attempted to persuade him to release the package. The courier driver was suspicious and would not do so. Mr Chai made repeated efforts to obtain release of the package. The courier company contacted the New Zealand Customs Service. Mr Chai says that he agreed only to receive ephedrine, and the supply of methamphetamine was a surprise to him. The summary of facts on which Mr Chai was sentenced proceeded on that basis.
Mr Chai was charged with and pleaded guilty to importing methamphetamine (a Class A drug),[1] a representative charge of importing ephedrine (a Class B drug) and 10 specific charges of importing the same drug.[2]
[1]Misuse of Drugs Act 1975, s 6(1)(a) and 6(2)(a).
[2]Section 6(1)(a) and 6(2)(b).
Judge Collins sentenced Mr Chai to 13 years and six months’ imprisonment, with concurrent sentences of four years’ imprisonment on the other charges, and a 40 per cent minimum period of imprisonment, equating to five years and six months.[3] Mr Chai appeals his sentence.

Sentencing

[3]R v Chai [2019] NZDC 1215 [Sentencing notes].

The Judge first assessed the appropriate sentence starting point. He took the methamphetamine charge as the lead offence and applied a 15 year starting point to that. He then uplifted that starting point by three years for the ephedrine charges, having regard to the totality of the offending.[4]
[4]At [19]–[30]. The Judge took the view that had the ephedrine offending stood on its own, a starting point of 10 years’ imprisonment for that would have been appropriate: at [30].
Turning then…

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 Chai v R

Details

AGLC: Chai v R [2020] NZCA 202
Case: [2020] NZCA 202
Decision Date: 2 June 2020 at 10 am

CaseChat Overview and Summary

Wai Yew Chai, a Malaysian national, appealed against the sentence imposed by the District Court for importing methamphetamine and ephedrine. The appeal focused on the severity of the sentence and the appropriateness of the starting point and the minimum term of imprisonment. The New Zealand Court of Appeal found that the starting point of 13 years was too high, and that the sentencing judge had not adequately considered the mitigating factors and parity with co-offenders. The Court of Appeal substituted the sentence of 13 years and six months' imprisonment with a sentence of nine years and seven months' imprisonment, and reduced the minimum period of imprisonment from five years and six months to three years and 10 months.

The Court of Appeal found that the starting point of 13 years was too high, and that the appropriate starting point was 13 years for the methamphetamine charge and an uplift of three years for the substantial quantity of ephedrine imported, for a total of 16 years. The Court of Appeal also found that the sentencing judge had not adequately considered the mitigating factors, such as Mr Chai's good character, rehabilitative efforts, and being a foreign national with no family support in New Zealand. The Court of Appeal found that a 15% discount for personal mitigating circumstances and a 25% discount for early guilty pleas should have been applied, resulting in an end sentence of nine years and seven months' imprisonment. The Court of Appeal also found that the minimum period of imprisonment was necessary, but that the percentage of the reduced sentence should be three years and 10 months.

Orders