Chien v The King - [2024] NZCA 379

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA323/2023
[2024] NZCA 379

BETWEEN	PO-CHEN CHIEN Appellant
AND	THE KING Respondent

Hearing:	22 July 2024
Court:	Mallon, Fitzgerald and Jagose JJ
Counsel:	E M Gresson for the Appellant R D Butler and M A Beattie for the Respondent
Judgment:	9 August 2024 at 4 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Fitzgerald J)

Introduction

On 11 May 2022, following a sentencing indication given by Judge Recordon,[1] the appellant, Mr Chien, pleaded guilty to the following charges:
(a)possession of a Class A drug, namely methamphetamine, for supply (x 2);[2]
(b)possession of a Class B drug, namely ephedrine, for supply (representative);[3]
(c)unlawful possession of a firearm (representative);[4] and
(d)unlawful possession of explosives, namely ammunition (representative).[5]
[1]R v Chien DC Papakura CRI-2021-092-003071, 4 May 2021 [sentencing indication].
[2]Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a). Maximum penalty: life imprisonment.
[3]Section 6(1)(f) and (2)(b). Maximum penalty: 14 years’ imprisonment.
[4]Arms Act 1983, s 45(1). Maximum penalty: four years’ imprisonment or fine of $5,000.
[5]Section 45(1). Maximum penalty: four years’ imprisonment or fine of $5,000.
On 24 May 2023, Judge Yelavich sentenced Mr Chien to five years, two months’ imprisonment.[6]
[6]R v Chien [2023] NZDC 10408 [sentencing notes].
Mr Chien now appeals against his sentence. As filed, there are three grounds of appeal:
(a)First, the final sentence was manifestly excessive.
(b)Second, the sentence should have been imposed by the Judge who gave the sentencing indication and heard the various adjournment applications.
(c)Third, the discount allowed for Mr Chien’s rehabilitative efforts and progress, namely a 10 per cent discount granted for both rehabilitation and remorse, was insufficient.
Ms Gresson, appearing for Mr Chien on the appeal, confirmed that the three appeal grounds collapse into one proposition, namely that the discount for rehabilitation was inadequate. It is submitted that the discount for rehabilitation and remorse ought to have been separated to give a five per cent discount for remorse and a 35 per cent discount for rehabilitation. We address the appeal on that basis.
An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.[7] The focus is not on the process by which the sentence was reached, but on whether the end result is manifestly excessive.[8]

Background facts

[7]Criminal Procedure Act 2011, s 250(2) and (3).

[8]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Ripia v R [2011] NZCA 101 at [15].

The basis upon which Mr Chien was sentenced was set out in an agreed summary of facts put before the Judge.
On 16 April 2021, and as part of a broader investigation into the importation and distribution of drugs, the National Organised Crime Group of the Police executed a search warrant at Mr Chien’s home address…

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 Chien v The King

Details

AGLC: Chien v The King [2024] NZCA 379
Case: [2024] NZCA 379
Decision Date: 9 August 2024 at 4 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Po-Chen Chien appealed against his five years, two months’ imprisonment sentence for drug possession and unlawful possession of a firearm and explosives. The appeal grounds centred on the contention that the discount for rehabilitation was inadequate. The Crown argued that the sentence was not manifestly excessive and the Judge had given ample credit for mitigating factors. The appeal court considered that the discounts given by the Judge were sufficient and did not lead to a manifestly excessive sentence. They noted that the full 25 per cent discount for guilty pleas was generous given the circumstances, and the combined discount of 10 per cent for remorse and rehabilitation, along with other discounts, amounted to a meaningful and sufficient response to the appellant's background, remorse, rehabilitation, and guilty pleas. Therefore, the appeal was dismissed.

Orders