Gao v R - [2018] NZCA 69

IN THE COURT OF APPEAL OF NEW ZEALAND

CA365/2017
CA386/2017
CA405/2017
[2018] NZCA 69

BETWEEN	ZHUOLING GAO First Appellant JACK YUN-CHIEN HSU Second Appellant TUNG HAN WU Third Appellant
AND	THE QUEEN Respondent

Hearing:	26 February 2018
Court:	Gilbert, Simon France and Whata JJ
Counsel:	B L Sellars for First Appellant K H Maxwell for Second Appellant N P Chisnall for Third Appellant E J Hoskin for Respondent
Judgment:	23 March 2018 at 2.30 pm

JUDGMENT OF THE COURT

The appeals against sentence are dismissed

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REASONS OF THE COURT

(Given by Whata J)

Ms Gao, Mr Hsu and Mr Wu appeal against sentence. Ms Gao and Mr Hsu were sentenced to nine years’ imprisonment for conspiracies to import and supply methamphetamine. Mr Wu was sentenced to 17 years and three months’ imprisonment on three unrelated methamphetamine importation charges and on the conspiracy to supply charge.

The facts

Importation

Mr Wu was found guilty on three charges of importation of methamphetamine. The facts of this offending are not disputed. In summary, Mr Wu, together with his associates, Mr Wang, Mr Bih and Mr Huang, imported 3.642 kilograms of methamphetamine in three shipments, namely:
(a)On 8 February 2015, a wine bottle arrived in New Zealand. Testing of the liquid indicated it contained 495 grams of pure methamphetamine.
(b)On 15 February 2015, a package containing a further six wine bottles arrived in New Zealand. In total, these wine bottles contained 1.67 kilograms of pure methamphetamine.
(c)On 19 February 2015, another package of six wine bottles arrived. In total, these wine bottles contained 1.477 kilograms of methamphetamine.
Mr Hsu and Ms Gao were also charged, but acquitted in relation to this offending. The conspiracy to import charge relates to further planned importations after these importations.

The conspiracy charges

Ms Gao and Mr Hsu pleaded guilty to the conspiracy charges. It appears they did not plead to the summary of facts. In any event, helpfully, Judge Ronayne summarised the facts of the conspiracy offending based on his view of the evidence, the accuracy of which is not challenged. He stated:[1]
[13] Mr Hsu and Ms Gao, also you have admitted that you together agreed to supply methamphetamine in New Zealand which is of course charge 7. The intercepted communications exhibited at trial show that you three, that is Mr Hsu, Ms Gao and Mr Wu and Mr Wang intended to import very large commercial quantities of methamphetamine into New Zealand and for Mr Hsu and Ms Gao to arrange its ongoing subsequent supply.
[14] The communications disclosed the scale of the conspiracies and the organisation of the criminal enterprise. Mr Hsu, Ms Gao and Mr Wu were heard to discuss bringing into New Zealand very large commercial quantities of methamphetamine where you three discussed importing 10 kilograms on one occasion and making profits of $200,000 a week. It was also discussed between you that you would have and I quote, “Dozens of kilos.” At one point Mr Hsu and Ms Gao discussed buying a…

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 Gao v R

Details

AGLC: Gao v R [2018] NZCA 69
Case: [2018] NZCA 69
Decision Date: 23 March 2018 at 2.30 pm

CaseChat Overview and Summary

In Gao v R, the Court of Appeal of New Zealand dismissed the appeals against sentence brought by Zhuoling Gao, Jack Yun-Chien Hsu, and Tung Han Wu. The appellants were convicted of conspiracy to import and supply methamphetamine, and Mr Wu was additionally convicted of three counts of methamphetamine importation. The court assessed whether the sentencing judge had correctly determined the starting point and the appropriate discounts for the sentences. The appellants' counsel argued that the sentencing judge erred in various respects, including the linkage of the conspiracy charges to the importation charges, the starting point for the conspiracy, the uplift for the conspiracy to supply, the discounts for guilty pleas and personal factors, and the parity between the appellants' sentences. The Court of Appeal found that the sentencing judge had not erred and that the sentences were within the judge's discretion.

The Court of Appeal held that the sentencing judge was correct in linking the conspiracy charges to the importation charges, as the appellants had conspired with a person of proven ability to import methamphetamine. The court also found that the starting point for the conspiracy was appropriate, as the recorded communications revealed the appellants' intention to import large quantities of methamphetamine and make substantial profits. The court held that the uplift for the conspiracy to supply was not excessive, as it was separate offending warranting a distinct sentence. The court further held that the discounts for guilty pleas and personal factors were available to the sentencing judge and were appropriately applied. Finally, the court held that the parity principle was not engaged, as the different charges faced by the appellants and the totality of offending underpinned the sentences.

The Court of Appeal also considered Mr Chisnall's argument that the sentencing judge failed to properly consider Mr Wu's foreign national status when fixing the sentence. The court agreed that it would not be appropriate to apply a fixed rule that discounts for foreign nationality will never be available for offending of the present kind, as the Sentencing Act 2002 requires a sentencing judge to consider whether a sentence of imprisonment would be disproportionately severe on the prisoner. However, the court found that there was no evidence before it on the effects of dislocation on foreign nationals in New Zealand and that there was scant evidence to show that imprisonment would be disproportionately severe for Mr Wu because of dislocation effects. The court also noted that Mr Wu engaged the need for deterrence and that the sentence imposed overall was fair to him.

The appeals against sentence were dismissed, and the sentences imposed by the sentencing judge were upheld. The Court of Appeal did not make any orders regarding the sentences.

Orders