Gan v The Queen - [2017] NZCA 569

IN THE COURT OF APPEAL OF NEW ZEALAND

CA562/2016
[2017] NZCA 569

BETWEEN	YIXIN GAN Appellant
AND	THE QUEEN Respondent

Hearing:	27 November 2017
Court:	Winkelmann, Venning and Duffy JJ
Counsel:	T Cooper and I Archibald for Appellant E Hoskin for Respondent
Judgment:	7 December 2017 at 10 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal against sentence is allowed.
CThe minimum period of imprisonment of eight years and four months is quashed and replaced with a minimum period of seven years.

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REASONS OF THE COURT

(Given by Venning J)

Following a trial before Downs J and a jury in the High Court at Auckland, Ms Gan was convicted of two charges of importing pseudoephedrine and one charge of possessing pseudoephedrine for the purpose of supply. Downs J sentenced her to 14 years’ imprisonment with a minimum period of imprisonment (MPI) of eight years and four months’ imprisonment.[1]
[1]R v Gan [2016] NZHC 2349.
Ms Gan does not challenge the end sentence nor the imposition of an MPI. She challenges the length of the MPI. At eight years and four months it was 60 per cent of the end sentence. Ms Gan submits the length of the MPI was manifestly excessive and the appropriate MPI in the present case was 50 per cent or seven years.
The appeal was filed out of time. No issue is taken with that by the Crown. There is no prejudice. The application for an extension of time to appeal is granted.

Ms Gan’s offending

The first two charges (importation of pseudoephedrine and possession of pseudoephedrine for supply) related to the importation by Ms Gan of at least 250 kilograms of ContacNT from China to New Zealand in October 2013.
Ms Gan disguised the importation through the use of her legitimate business in the course of which she imported goods, largely foodstuffs, to New Zealand from China. The goods were ultimately destined for Tonga. While in transit in New Zealand the ContacNT, falsely labelled as potato starch or corn starch, was removed and replaced with packages of actual potato starch or corn starch. The replaced goods were then forwarded to Tonga while the drugs remained in New Zealand. The Judge assessed the value of the ContacNT converted to pseudoephedrine at approximately $8,900,000.[2]
[2]At [7].
The third charge (importation of pseudoephedrine) was a representative charge. Earlier, between 21 May 2012 and 11 June 2013, Ms Gan had arranged four shipments from China to New Zealand. The Judge was unable to ascertain how much ContacNT had been brought in or whether it was brought in on more than one occasion. However, he found Ms Gan had imported a “not inconsiderable commercial quantity”.[3] That conclusion was supported by the fact that during that period not less than $3,201,000 in cash was deposited to Ms Gan’s bank accounts.

Sentencing decision

[3]At [11].

In sentencing Ms Gan the Judge said that she was the primary architect, at…

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 Gan v The Queen

Details

AGLC: Gan v The Queen [2017] NZCA 569
Case: [2017] NZCA 569
Decision Date: 7 December 2017 at 10 am

CaseChat Overview and Summary

In the case of Yixin Gan v The Queen, Ms Gan appealed against the length of the minimum period of imprisonment (MPI) imposed on her. The Court of Appeal of New Zealand heard the appeal on 27 November 2017, with Winkelmann, Venning, and Duffy JJ delivering the judgment on 7 December 2017. Ms Gan, represented by T Cooper and I Archibald, challenged the length of her MPI, which was set at eight years and four months, arguing it was manifestly excessive and should be reduced to seven years. The Crown, represented by E Hoskin, did not contest the extension of time to appeal or the substance of the appeal.

The legal issues before the Court of Appeal were whether the sentence was manifestly excessive and if the length of the MPI was justified. Ms Gan's counsel argued that an MPI of more than 50 per cent was not warranted in her case and that the Judge had failed to properly consider her personal circumstances. The Crown maintained that an MPI of 60 per cent was within the Judge's discretion, given Ms Gan's significant role in the importation of a large quantity of pseudoephedrine. The Court considered whether the sentence imposed was manifestly excessive and if the Judge had erred in determining the appropriate length of the MPI.

The Court found that the MPI of 60 per cent was excessive, particularly considering Ms Gan's voluntary return to New Zealand to face the charges, a factor that deserved more weight than the Judge had apparently given. The Court also noted that while Ms Gan's personal circumstances had been considered earlier in the sentencing process, the Judge had not expressly referred to them when imposing the MPI. However, the Court held that the Judge's overall reasoning for the MPI was apparent, and the issue was not whether the Judge had explicitly referred to the mitigating factors but whether their consideration was implicit in the decision. Ultimately, the Court concluded that the voluntary surrender to New Zealand warranted a reduction in the MPI, leading to the allowance of the appeal.

The Court of Appeal granted the extension of time to appeal, allowed the appeal against the sentence, and quashed the MPI of eight years and four months, replacing it with a minimum period of seven years. The Court's decision underscored the importance of considering the totality of a defendant's circumstances, including voluntary surrender, in determining an appropriate MPI.

Orders