He v R - [2017] NZCA 77

IN THE COURT OF APPEAL OF NEW ZEALAND

CA494/2016
[2017] NZCA 77

BETWEEN	MING REN HE Appellant
AND	THE QUEEN Respondent

Hearing:	14 February 2017
Court:	Wild, Simon France and Duffy JJ
Counsel:	M N Pecotic for Appellant K S Grau for Respondent
Judgment:	24 March 2017 at 3 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Duffy J)

Ming He was sentenced in the Auckland District Court to 12 years imprisonment with a seven-year minimum period of imprisonment (MPI) after he pleaded guilty to drug and firearms charges involving around one kilogram of methamphetamine, around 3.8 kilograms of ephedrine, a loaded pistol, and ammunition.[1] He appeals against his sentence on the ground it is manifestly excessive.

Relevant Facts

Offending

[1]R v He [2016] NZDC 17530 at [22]–[23]. He was convicted of one charge of possession of the class A controlled drug methamphetamine for supply; one charge of possession of the class B controlled drug ephedrine for supply; five charges of supply of ephedrine; one charge of unlawful possession of a firearm (a pistol) and one charge of unlawful possession of ammunition.

In July 2014 the police commenced an investigation into Mr He, which led to them obtaining interception warrants in order to search and seize his electronic communications. The investigation showed Mr He was engaged in illicit drug activity. On four separate occasions between July and August 2014, Mr He supplied ephedrine to the co-defendant Ms Bianca Comins. Then on 24 August 2014, Ms Comins arranged for her partner Mr Sean Marsh to collect ephedrine from Mr He. On leaving Mr He’s address, Mr Marsh was stopped by police who found him to be in possession of approximately one kilogram of ephedrine (which is a product used to manufacture methamphetamine) and 28 grams of methamphetamine. In all, Mr He supplied a total of 2.8 kilograms of ephedrine.
The next day police executed a search warrant at Mr He’s residence where they found approximately one kilogram of methamphetamine, one kilogram of ephedrine, a loaded pistol hidden under Mr He’s bed and ammunition stored elsewhere. Police also found several sets of scales, methamphetamine pipes and $274,000, which are the classic indicia of a drug dealer.

Earlier drug offending

At the time of the present offending Mr He was on parole, having been released on 30 October 2013 from a seven-year sentence imposed for offences of importing methamphetamine and importing, supplying and possessing pseudoephedrine.[2] Between March 2008 and February 2009 he had imported 660 grams of methamphetamine and on 13 occasions he had imported pseudoephedrine in the form of approximately 21 kilograms of ContacNT capsules that he sold. While charged and on bail for these offences, he imported another seven kilograms of ContacNT capsules. The potential methamphetamine yield from the pseudoephedrine was between 5.6 and 8.4 kilograms.

Personal circumstances

[2]R v He HC Auckland CRI-2008-004-2502, 11 December 2009 at [28].

Mr He had just turned 26 at the time the last offence…

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 He v R

Details

AGLC: He v R [2017] NZCA 77
Case: [2017] NZCA 77
Decision Date: 24 March 2017 at 3 pm

CaseChat Overview and Summary

The appellant, Ming He, appealed against his sentence for drug and firearms charges, which included possession of methamphetamine, possession of ephedrine, and multiple charges of supplying ephedrine. He was sentenced to 12 years imprisonment with a seven-year minimum period of imprisonment (MPI) by the Auckland District Court. The primary legal issue was whether the sentence was manifestly excessive.

The Court of Appeal reviewed the starting point of 14 years imprisonment for the possession of methamphetamine, which the appellant argued was excessive. The Court found the starting point was within the appropriate range, considering the quantity of methamphetamine involved and the presence of firearms. The Court also considered the appellant's previous convictions, which demonstrated a propensity for drug dealing and supported the 12-month uplift imposed by the District Court Judge. The four-year uplift for the ephedrine offending was deemed to be at the upper end of the appropriate range. The Court found no basis to reduce the sentence for time spent on recall or for insufficient credit given to mitigating factors. The Court concluded that the sentence was not manifestly excessive and dismissed the appeal.

The final orders of the Court of Appeal were to dismiss the appeal and uphold the sentence of 12 years imprisonment with a seven-year MPI imposed by the Auckland District Court.

Orders