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Kim v The King

Kim v The King

Case [2023] NZCA 332 31 July 2023

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA260/2022
[2023] NZCA 332

BETWEEN	PETER DONG HAE KIM Appellant
AND	THE KING Respondent

Hearing:	13 June 2023
Court:	Courtney, Peters and Mander JJ
Counsel:	P I Pati for Appellant S S McMullan and M J Mortimer-Wang
Judgment:	31 July 2023 at 10 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mander J)

Peter Kim pleaded guilty to charges of possessing methamphetamine and MDMA for sale,[1] and a further charge of possession of cocaine.[2] On 6 May 2022 Edwards J imposed a sentence of 10 years and 10 months’ imprisonment with a minimum period imprisonment of four years and four months.[3] Mr Kim appeals the length of his sentence and the imposition of a minimum period of imprisonment.

The offending

[1]Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a) — maximum penalty life imprisonment; and s 6(1)(f) and (2)(b) — maximum penalty 14 years’ imprisonment.

[2]Section 7(1)(a) and (2)(a) — maximum penalty six months’ imprisonment or a $1,000 fine.

[3]R v Kim [2022] NZHC 952 at [68]–[69] [Sentencing decision].

Mr Kim’s offending arose from his involvement in a large-scale drug syndicate that imported and distributed methamphetamine, cocaine and MDMA. His participation in this offending was summarised by Edwards J when sentencing Mr Kim:
[5]       Members of the syndicate had different roles. Some were referred to as “storage” or “storemen”. They were engaged to stockpile and repackage drugs. Others were referred to as “runners” or “drivers”. They were primarily responsible for delivering drugs and collecting cash payments. It is common ground that you played a storeman role in the syndicate. Mr Valent [who orchestrated the drug syndicate] would communicate with those in his drug syndicate, using applications such as the voice over internet protocol app, Wickr.
[6]       The syndicate was in operation from August 2017 to February 2020. Your methamphetamine-related offending covers a period of approximately 11 months, from late 2017 to September 2018.
[7]        In late 2017, Mr Valent arranged for the manufacture of methamphetamine at a remote location in Northland. During a two-month period, six or seven manufactures were carried out with the total methamphetamine produced estimated to be at least 22 [kg]. You came into possession of the methamphetamine from three of those manufactures.
[8]       Furthermore, at the end of December 2017, you received a package containing approximately 10 [kg] of methamphetamine. You provided this package to Mr Hall and Ms Newton-Kearney for delivery to a customer in Christchurch. You received a large amount of cash and approximately six AR‑16 assault rifles as payment for the methamphetamine on their return. The cash and firearms were held by you and later collected by another member of the syndicate.
[9]       In July 2018, you received one kg of methamphetamine from Mr Hall for onwards delivery to customers of Mr Valent.
[10]      The total weight of methamphetamine possessed for supply is not known, but it…

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 Kim v The King

Details

AGLC: Kim v The King [2023] NZCA 332
Case: [2023] NZCA 332
Decision Date: 31 July 2023 at 10 am

CaseChat Overview and Summary

Peter Dong Hae Kim appeals against his sentence of 10 years and 10 months' imprisonment, with a minimum period of imprisonment of four years and four months. The appeal was heard by Courtney, Peters, and Mander JJ. Kim pleaded guilty to charges of possessing methamphetamine and MDMA for sale and a further charge of possession of cocaine. He was sentenced by Edwards J on 6 May 2022. Kim's appeal grounds were: (a) his level of culpability arising from his role in the syndicate was overstated; (b) the starting point was manifestly excessive and did not accord with other sentences for similar offending; (c) the Court erred in failing to allow a discount for factors canvassed in the s 27 cultural report; (d) the starting point and end sentence lacked parity with Kim's co-offenders; and (e) the Court erred by imposing a minimum period of imprisonment based on a need for additional denouncement and deterrence.

The court found that the Judge accurately placed Kim's offending in band five of the graduated starting points outlined in Zhang that attracts a starting point of between 10 years and life imprisonment. The Judge characterised Kim's role as "towards the lower end of the significant category", the intermediate category falling between the "lesser" and "leading" roles for commercial methamphetamine offenders profiled in Zhang. The Judge's determination of Kim's level of involvement was based on her assessment that he was primarily motivated by financial reward, had an "operational function within a chain", and some awareness of the scale of the operation.

Regarding the starting point, the court found that while there were aspects of the offending in Berkland and Lidder that could arguably be considered more serious than Kim's, the distinctions sought to be drawn did not result in any materially different degree of culpability. The court found that the starting point adopted by the Judge for Kim's methamphetamine offending was not excessive.

The court also found that the sentencing Judge did not err in declining to afford a discrete discount for matters relating to Kim's addiction to cocaine or hardship arising from his upbringing. The court found that the choices Kim made to offend were not constrained to any material degree by factors outside his control.

The court found that no meaningful comparisons could be made between the sentencing outcomes of Kim's co-offenders because of the distinct individual factors that apply to each offender. The court found that no question of disparity arose as a result of the sentences received by Kim's co-offenders.

Finally, the court found that the sentencing Judge did not breach the requirement of reasoned analysis in her approach to the imposition of a minimum period of imprisonment. The court found that the Judge's decision was supported by appropriate analysis and was otherwise available to her.

The appeal was dismissed.

Orders