Ho v R

Case [2015] NZCA 320 22 July 2015

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA512/2014
[2015] NZCA 320

BETWEEN	TUAN ANH HO Appellant
AND	THE QUEEN Respondent

CA518/2014
BETWEEN	LEIGHTON KENNETH HOE Appellant
AND	THE QUEEN Respondent

CA535/2014
BETWEEN	ANDREI MIKOYAN KUPKOVIC Appellant
AND	THE QUEEN Respondent

Hearing:	6 July 2015
Court:	White, Keane and Kós JJ
Counsel:	P K Hamlin for Appellant Ho A G Speed for Appellant Hoe M A Edgar for Appellant Kupkovic J M O’Sullivan for Respondent
Judgment:	22 July 2015 at 2.30 pm

JUDGMENT OF THE COURT

AThe applications for extensions of time within which to appeal are granted.
BThe appeals against sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by White J)

The three appellants appeal against their sentences for drug offending imposed by Brewer J in the High Court at Auckland.[1]
[1]R v Kupkovic [2014] NZHC 1946 [sentencing notes].
Mr Kupkovic was sentenced to 15 years’ imprisonment with a minimum period of imprisonment (MPI) of seven and a half years after he pleaded guilty to two charges of manufacturing methamphetamine, one being a representative charge, one representative charge of supplying methamphetamine, one charge of possession of methamphetamine for supply, one charge of possession of a precursor substance, one charge of possession of equipment and one charge of possession of materials.[2]
[2]At [60].
Mr Ho was sentenced to 12 and a half years’ imprisonment after he pleaded guilty to one representative charge of manufacturing methamphetamine, one representative charge of supplying methamphetamine and one charge of receiving stolen property.[3]
[3]At [61].
Mr Hoe was sentenced to seven years’ imprisonment after he pleaded guilty to one representative charge of manufacturing methamphetamine.[4]
[4]At [62].
The sentences were imposed after a five-day disputed facts hearing under s 24(2) of the Sentencing Act 2002 to determine the quantities of methamphetamine manufactured by the appellants. In a comprehensive judgment Brewer J concluded he would sentence the appellants on the representative charges of manufacturing methamphetamine on the following basis:[5]
(a)Mr Kupkovic: 2,025 grams.
(b)Mr Ho: 1,552 grams.
(c)Mr Hoe: 607 grams.
[5]R v Kupkovic [2014] NZHC 1645 [disputed facts judgment] at [333].
Each of the appellants challenges his sentence on the ground that it was manifestly excessive. Mr Kupkovic’s challenge to his MPI was not pursued on appeal, but he challenges the Judge’s factual findings relating to the 2025 grams. The other appellants do not challenge the amounts the Judge found in respect of their involvement.
The appeals were filed out of time. Applications for extensions of time within which to appeal are granted without opposition from the Crown.
It is common ground that the approach to sentencing for methamphetamine offending is settled by the judgment of this Court in R v Fatu where four bands were identified:[6]
[42] Where the Crown can establish that large quantities of methamphetamine have been manufactured, the Court may regard the criminality in gearing up to manufacture as being absorbed by the culpability of the primary offending. In other cases, where the evidence as to how much was…

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 Ho v R

Details

AGLC: Ho v The Queen [2015] NZCA 320
Case: [2015] NZCA 320
Decision Date: 22 July 2015 at 2.30 pm

CaseChat Overview and Summary

The three appellants, Tuan Anh Ho, Leighton Kenneth Hoe, and Andrei Mikoyan Kupkovic, appealed against their sentences for drug-related offenses imposed by Brewer J in the High Court at Auckland. The sentences were imposed after a five-day hearing to determine the quantities of methamphetamine manufactured by the appellants. The appellants challenged their sentences on the grounds that they were manifestly excessive.

The Court of Appeal considered the sentencing approach established in R v Fatu, which identified four bands for sentencing methamphetamine offenses based on the quantity manufactured. The Court held that the Judge's assessment of the yield and scale of offending was accurate, and the starting points for each appellant were within the appropriate range. The Court found that the Judge had properly considered the appellants' roles in the offending, their guilty pleas, and their personal circumstances in determining the final sentences.

The appeals against sentence were dismissed, and the applications for extensions of time within which to appeal were granted.

Orders