Choi v R

Case [2011] NZCA 237 1 June 2011

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA705/2010
[2011] NZCA 237

BETWEEN CHUN MING CHOI
Appellant

AND THE QUEEN
Respondent

Hearing: 3 May 2011

Court: Wild, Venning and Courtney JJ

Counsel: M A Edgar for Appellant
K A L Bicknell for Respondent

Judgment: 1 June 2011 at 10am

JUDGMENT OF THE COURT

A The appeal against sentence is allowed in part.

BThe order that the appellant serve a minimum period of imprisonment of five years is quashed.

CIt is ordered that the appellant serve a minimum period of imprisonment of four years.

____________________________________________________________________

REASONS OF THE COURT
(Given by Courtney J)

Introduction

The appellant, a Hong Kong national, pleaded guilty in the District Court at Manukau to ten charges of importing methamphetamine and one of possession of methamphetamine for supply. Judge Andree Wiltens sentenced him to eight years imprisonment on each charge (the sentences to be served concurrently) and imposed a five year minimum period of imprisonment.
The Judge sentenced on the basis that the appellant had acted in the role of courier. His task was to travel to New Zealand and receive drugs sent here by post. The total amount imported was 749.9 grams which brought the appellant within band 4 of R v Fatu.[1] The Judge took a starting point of 12 years six months’ imprisonment. He reduced that starting point by six months to reflect the appellant’s co-operation with authorities and applied a further 33 percent discount in recognition of the appellant’s guilty plea.
[1] R v Fatu [2006] 2 NZLR 72 (CA) at [36].
There is no challenge to the approach the Judge took in sentencing, nor to the end sentence, nor to the imposition of a minimum period of imprisonment. The sole ground of appeal is that the minimum period of imprisonment imposed is manifestly excessive because the Judge failed to take mitigating factors into account.

Minimum period of imprisonment

A sentencing judge may impose a minimum period of imprisonment if the usual minimum non-parole period of one-third of the determinate sentence would not be sufficient to achieve all or any of the purposes of accountability, denunciation, deterrence and protection of the community identified in s 86(2) Sentencing Act 2002. Under s 86(4)(a), the maximum period that can be imposed is two-thirds of the finite sentence. There is no presumption against imposing the maximum period; the question is simply what period is required to achieve the purposes identified in s 86(2).[2]
[2] R v Wang [2009] NZCA 118 at [14]
In determining the length of a minimum period of imprisonment, all the relevant circumstances of the offender and the offending must be considered. Fixing the minimum period of imprisonment is a separate, albeit very similar, exercise to fixing the finite sentence, as this Court pointed out in R v Taueki:[3]
Once it becomes necessary to address the second question, the length of the minimum period, the Court is required to take into account (to the extent that they are relevant to the…

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 Choi v R

Details

AGLC: Choi v R [2011] NZCA 237
Case: [2011] NZCA 237
Decision Date: 1 June 2011

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal against sentence by Chun Ming Choi, a Hong Kong national, who had pleaded guilty to multiple drug importation and possession charges. The appeal focused on the length of the minimum period of imprisonment imposed by the sentencing judge, which the appellant argued was manifestly excessive. The Court of Appeal agreed that the minimum period of imprisonment imposed was manifestly excessive because the judge failed to take into account the mitigating factors of co-operation with authorities and the appellant's guilty plea, as well as the fact that the appellant would be deported upon completion of his sentence.

The Court examined the legal principles surrounding the imposition of a minimum period of imprisonment, emphasizing the need to consider all relevant factors, including mitigating ones. The Court concluded that the sentencing judge had not adequately considered the mitigating factors and that the minimum period of imprisonment imposed was too close to the statutory maximum. The Court found that had the mitigating factors been properly considered, a minimum period of imprisonment of four years would have been appropriate. Therefore, the Court allowed the appeal in part, quashed the five-year minimum period of imprisonment, and substituted a four-year minimum period of imprisonment.

The Court's decision highlights the importance of considering all relevant factors, including mitigating ones, when determining the length of a minimum period of imprisonment. The Court's ruling underscores the need for sentencing judges to clearly articulate their reasoning in setting the minimum period of imprisonment to ensure it is consistent with other similar cases and appropriately reflects the circumstances of the offender and the offending.

Orders