Chan v R - [2020] NZCA 486

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA587/2019
[2020] NZCA 486

BETWEEN	YUEN CHEUNG CHAN Appellant
AND	THE QUEEN Respondent

Hearing:	7 October 2020
Court:	Gilbert, Mallon and Ellis JJ
Counsel:	P K Hamlin for Appellant C Ure for Respondent
Judgment:	15 October 2020 at 9.30 am

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.
BThe application to adduce further evidence is granted.
CThe appeal against sentence is allowed.
DThe sentence of 10 years and 11 months’ imprisonment with a minimum period of imprisonment of 50 per cent is set aside. A sentence of nine years and eight months’ imprisonment with a minimum period of imprisonment of 50 per cent is substituted.

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REASONS OF THE COURT

(Given by Gilbert J)

Mr Chan pleaded guilty to conspiring to manufacture methamphetamine, possession of material with intent to manufacture methamphetamine and possession of equipment with intent to manufacture methamphetamine. He was sentenced by Gordon J to 10 years and 11 months’ imprisonment and ordered to serve a minimum period of imprisonment of 50 per cent.[1] This sentence was constructed by taking a starting point of 13 years and 10 months’ imprisonment, allowing a two-month discount to recognise the difficulties Mr Chan would face as a foreign national serving a prison sentence in New Zealand and allowing a 20 per cent discount for his guilty pleas.[2]
[1]R v Chan [2017] NZHC 2924 [Sentencing judgment].
[2]At [12].
Mr Chan now appeals against his sentence. He contends that a discount ought to have been allowed for his previous good character and the discount to recognise his difficulties as a foreign national was inadequate.
Mr Chan’s appeal was filed well out of time. However, the delay has been explained. There is no prejudice to the Crown and it does not oppose the application to extend time for the appeal. We are satisfied that it is in the interests of justice for the appeal to be determined on its merits. An extension of time is granted accordingly.
Mr Chan applies for leave to adduce further evidence in support of his appeal, being affidavits sworn by his wife and mother. This evidence provides further information about Mr Chan’s personal circumstances in support of his contention that a good character discount ought to have been allowed. We did not apprehend there to be any objection from the Crown to the receipt of this additional material. The evidence appears to be credible and cogent. We accept there would have been difficulty obtaining the evidence from Laos and Hong Kong and arranging for it to be translated in time for sentencing. Even if the evidence is not strictly fresh, we are prepared to receive it in the circumstances.

The facts

While there is no challenge to the starting point adopted by the Judge, we commence by summarising the facts of the offending. This is necessary because the ultimate question on appeal is whether the end…

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 Chan v R

Details

AGLC: Chan v R [2020] NZCA 486
Case: [2020] NZCA 486
Decision Date: 15 October 2020 at 9.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Yuen Cheung Chan, appealed against his sentence for conspiring to manufacture methamphetamine, possession of material with intent to manufacture methamphetamine, and possession of equipment with intent to manufacture methamphetamine. Chan was sentenced to 10 years and 11 months' imprisonment with a minimum period of 50 per cent imprisonment. The court had to decide whether the sentence was appropriate and whether Chan's appeal was out of time and whether he could adduce further evidence. The appeal was out of time, but the court granted an extension of time. The court also granted Chan leave to adduce further evidence in support of his appeal. The appeal against sentence was allowed, and the sentence was reduced to nine years and eight months' imprisonment with a minimum period of 50 per cent imprisonment.

The court found that the starting point of 13 years and 10 months' imprisonment was appropriate. However, the court found that the sentence was inappropriate because the judge did not allow a discount for Chan's previous good character and the discount to recognise Chan's difficulties as a foreign national was inadequate. The court found that Chan's prior good record required some recognition in the sentencing analysis and that a modest discount ought to have been allowed, similar to the discount Wong received, in the order of five per cent. The court also found that the discount to recognise Chan's difficulties as a foreign national was inadequate, and a discount of not less than five per cent was required for this factor. The court concluded that the total discount for personal mitigating factors should be 30 per cent, being five per cent for previous good character, five per cent for the difficulties Chan will face serving a lengthy period of imprisonment as a foreign national and 20 per cent for his guilty pleas. Applying the two-step methodology approved in Moses v R, the end sentence should therefore be one of nine years and eight months' imprisonment.

Orders