For trafficking in methamphetamine Mr Cheung was sentenced in 2017 to a term of 15 years, five months’ imprisonment with a minimum period of imprisonment of nine years.[1] He now wants to appeal his sentence.
Because his right of appeal expired three years before he filed his papers, Mr Cheung needs the Court’s permission, in the form of an extension of time. He says the delay is excusable and the appeal has merit: the sentence was calculated in error, the starting point of 25 years was too high, and the minimum period of imprisonment was unwarranted.
The claim that the sentence was calculated in error raises an issue about the retrospective application of the two-step sentencing methodology adopted in the Court’s 2020 decision in Moses v R.[2] Mr Cheung says that Moses was an ordinary overruling of an earlier judgment of the Court, Hessell v R,[3] and so operates retrospectively under the declaratory theory of law. The Crown disagrees. It says that as a guideline judgment Moses operates prospectively and it should be applied to a past sentence only when it is apparent that the sentence was materially wrong and there are special circumstances. It opposes the extension of time in Mr Cheung’s case, saying the delay is not adequately explained and the sentence was not manifestly excessive.
We record that Mr Cheung was sentenced on 9 May 2017 under the applicable guideline judgment at the time, Fatu v R.[4] This Court has since updated methamphetamine sentencing guidelines in Zhang v R, but that judgment states that it applies to all sentencing that takes place after 21 October 2019.[5] It is common ground that Fatu applies to this case.
Mr Cheung was one of a group of offenders who imported very large quantities of methamphetamine in 2016. The offending was sophisticated and of some duration. Containers containing scaffolding were shipped to a company, Hong Jun International Trading…
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.
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Details
AGLC
Cheung v R [2021] NZCA 175
Case
[2021] NZCA 175
Decision Date
CaseChat Overview and Summary
The appellant, Kai Yip Cheung, appeals his 2017 sentence of 15 years, five months’ imprisonment with a minimum period of imprisonment of nine years, for trafficking in methamphetamine. His right of appeal expired three years before he filed his papers, so he needs the Court’s permission in the form of an extension of time. He says the delay is excusable and the appeal has merit: the sentence was calculated in error, the starting point of 25 years was too high, and the minimum period of imprisonment was unwarranted. The Crown disagrees. It says that as a guideline judgment Moses operates prospectively and it should be applied to a past sentence only when it is apparent that the sentence was materially wrong and there are special circumstances. It opposes the extension of time in Mr Cheung’s case, saying the delay is not adequately explained and the sentence was not manifestly excessive.
The Court allowed the appeal in part, extending time for filing the appeal and quashing the minimum period of imprisonment. The determinate sentence of 15 years and five months’ imprisonment remains.