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Keino v R

Keino v R

Case [2019] NZCA 457 26 September 2019

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA9/2018
[2019] NZCA 457

BETWEEN	KAZUKI KEINO Appellant
AND	THE QUEEN Respondent

Hearing:	29 May 2019
Court:	Collins, Peters and Mander JJ
Counsel:	S J Gray for Appellant P D Marshall for Respondent
Judgment:	26 September 2019 at 3.30 pm

JUDGMENT OF THE COURT

AThe application to appeal out of time is granted.
BThe application to adduce further evidence is declined.
CThe appeal against conviction is dismissed.
DThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Peters J)

The appellant, Mr Keino, was convicted of five charges of importing ephedrine, a class B controlled drug, following a jury trial before Judge Patel in the District Court at Manukau in July 2017.[1] Mr Keino now appeals against conviction and his sentence of nine years, four months’ imprisonment with a minimum period of imprisonment (MPI) of three years, 8 months, a little less than 40 per cent of the end sentence.[2]
[1]Contrary to the Misuse of Drugs Act 1975, s 6(1)(a). Maximum penalty 14 years’ imprisonment: ss 6(2)(b); and sch 2 pt 2 cl 1.
[2]R v Keino [2017] NZDC 20131.
The appeal against conviction is brought on the ground that a miscarriage of justice has occurred for two reasons. The first is trial counsel error and the second is that fresh, cogent and credible evidence is available from Mr Keino and Mr Someya, a co-offender.
Mr Keino appeals against sentence on the ground that it is manifestly excessive.
Mr Keino’s notice of appeal was filed out of time. In order to deal with the merits of the appeal, we grant the extension of time accordingly.

Background

The Crown case was that Mr Keino was part of a group that travelled to New Zealand to facilitate the importation of ephedrine, 32.75 kg of ephedrine to be precise. The group comprised Mr Keino, Mr Iwai, Mr Someya and Mr Hara. Mr Keino and Mr Iwai arrived in Auckland in early-December 2015. Mr Someya arrived in Auckland at the end of January 2016. Mr Hara arrived in Auckland on 25 February 2016. All were arrested in early-March 2016.
Customs officers detained Mr Keino at Auckland International Airport on 1 March 2016 when he was seeking to leave New Zealand. With the assistance of an interpreter, they interviewed Mr Keino, largely in relation to what became known as “import three”. Import three was a shipment, via DHL, of side tables with 15.8 kg of ephedrine concealed in some of the legs.
The customs officers questioned Mr Keino about his activities in New Zealand. The gist of Mr Keino’s response was that he had been helping a friend, Yugie, who ran a business importing goods. Mr Keino’s account was that, at Yugie’s request, he had opened post office boxes, collected packages from them and given those packages to Yugie. He also said that that he had visited DHL’s office at Auckland Airport, again at Yugie’s request, to…

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 Keino v R

Details

AGLC: Keino v R [2019] NZCA 457
Case: [2019] NZCA 457
Decision Date: 26 September 2019 at 3.30 pm

CaseChat Overview and Summary

Kazuki Keino appeals against his conviction and sentence for importing ephedrine, a class B controlled drug. The appeal was heard before Collins, Peters, and Mander JJ. The appellant's conviction was based on five charges of importing ephedrine, a class B controlled drug, following a jury trial in the District Court at Manukau in July 2017. The appeal against conviction argues that a miscarriage of justice occurred due to trial counsel error and the availability of fresh, cogent, and credible evidence from the appellant and his co-offender, Mr Someya. The appeal against sentence argues that the sentence of nine years, four months' imprisonment with a minimum period of imprisonment (MPI) of three years, 8 months is manifestly excessive.

The court granted the extension of time to deal with the merits of the appeal. The court dismissed the appeal against conviction, finding that the appellant was sufficiently informed of the detail of the Crown case, trial procedure, and how his defence was to be presented at trial. The court declined to admit fresh evidence as it was not credible and would likely do the defence case more harm than good. The court also dismissed the appeal against sentence, finding that the Judge's assessment of the appellant's role and culpability was proper, and the discount given for the appellant's foreign national prisoner status was not too modest.

The final orders were that the application to appeal out of time was granted, the application to adduce further evidence was declined, the appeal against conviction was dismissed, and the appeal against sentence was dismissed.

Orders