Chen v R

Case [2010] NZCA 552 24 November 2010

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA451/2010
[2010] NZCA 552
BETWEENJIN SHAN CHEN

Appellant

ANDTHE QUEEN

Respondent

Hearing:1 November 2010

Court:Randerson, Potter and Cooper JJ
Counsel:J Haigh QC and G J Newell for Appellant

B D Tantrum for Respondent

Judgment:24 November 2010 at 4.30 p.m.

JUDGMENT OF THE COURT

A The appeal against sentence is allowed in part.
BThe order made in the District Court that the appellant serve a minimum term of eight years’ imprisonment is quashed.
CIt is ordered that the appellant serve a minimum term of seven years’ imprisonment.
DThe overall effective sentence of thirteen years and six months’ imprisonment is undisturbed.

REASONS OF THE COURT
(Given by Cooper J)
[1] On 25 March 2010 the appellant pleaded guilty to:
(a)Two charges of possession of methamphetamine for the purpose of supply.

(b) One charge of importation of methamphetamine.

[2]        The two charges of possession of methamphetamine for supply related to different offence dates. The first offence was committed on 18 March 2009 and the second on 14 July 2009, the same date on which the importation occurred.
[3]        Judge Andrée Wiltens sentenced the appellant in the District Court to imprisonment for a term of 13 years and six months.[1] He ordered that the appellant serve a minimum of term of eight years’ imprisonment.
[1]      R v Chen DC Manukau CRI-2010-092-3275.
[4]        The appellant now appeals on the basis that the sentence imposed was manifestly excessive. Further, the appellant claims that no minimum term should have been imposed or, if one was appropriate, that the length of the minimum term required to be served (being just under 60 per cent of the total term) was itself manifestly excessive.
The facts
[5]        According to the summary of facts, which was accepted by the appellant at the time of sentencing, on the evening of Wednesday 18 March 2009 he went with another person to an address in Otahuhu where he obtained a quantity of methamphetamine from an associate. Later that evening he and another associate began the process of weighing the methamphetamine and placing it into “ounce” bags. He was stopped by the police when leaving the property where he had been placing the methamphetamine in bags and his car was searched. However, nothing was found.
[6]        The following morning, the police executed a search warrant at his home. In a spare bedroom the police located a bag which contained 18 plastic snap-lock ounce bags of methamphetamine which had been hidden under the drawers of an office desk. A further plastic snap-lock ounce bag of methamphetamine was located underneath a side table next to the bed. The methamphetamine was a distinctive yellow colour, and each bag weighed between 28 and 29 grams. Secreted in the underwear of an associate were a further 20 “ounce” bags of methamphetamine with the same distinctive yellow colour. Each bag again weighed between 28 and 29 grams. A total of 1,092 grams of methamphetamine was located, packaged in 39 separate bags. It is…

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 Chen v R

Details

AGLC: Chen v R [2010] NZCA 552
Case: [2010] NZCA 552
Decision Date: 24 November 2010

CaseChat Overview and Summary

The case of Chen v R involved an appeal against the sentence imposed by the District Court. The appellant, Jin Shan Chen, pleaded guilty to two charges of possession of methamphetamine for the purpose of supply and one charge of importation of methamphetamine. The appellant challenged the sentence on the basis that it was manifestly excessive, and further argued that the imposition of a minimum term was inappropriate. The Court of Appeal of New Zealand heard the appeal and found that while the overall sentence of 13 years and six months' imprisonment was appropriate, the minimum term imposed was excessive.

The Court of Appeal reviewed the reasoning of the District Court and noted that the appellant played a significant role in the importation and supply of methamphetamine. However, the Court found that the starting point of 15 years for the importation offence was too high, and instead should have been set at around 13 years and six months. Despite this, the Court upheld the overall sentence of 13 years and six months, as it considered the uplifts for the additional charges of possession for supply to be generous to the appellant.

Regarding the imposition of a minimum term, the Court found that there were valid reasons for imposing a minimum term, as the appellant's offending was of a serious nature and involved a large quantity of methamphetamine. However, the Court agreed with the appellant that the length of the minimum term was excessive. The Court found that a minimum term in the vicinity of 50 per cent would have been justified, taking into account the appellant's guilty pleas, his role in the offending, and his remorse. As a result, the Court ordered that the appellant serve a minimum term of seven years, reducing the previously imposed minimum term of eight years.

In conclusion, the Court of Appeal allowed the appeal in part, reducing the minimum term of imprisonment imposed on the appellant. The overall effective sentence of 13 years and six months' imprisonment remained undisturbed.

Orders