| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA311/2015 [2016] NZCA 362 |
| BETWEEN | ZIYANG MA |
| AND | THE QUEEN |
| Hearing: | 19 July 2016 |
Court: | Randerson, Fogarty and Collins JJ |
Counsel: | K H Maxwell for Appellant |
Judgment: | 28 July 2016 at 10:30 am |
JUDGMENT OF THE COURT
AThe appeal against sentence is allowed.
BThe sentence of nine years and four months imprisonment is quashed.
CConcurrent sentences of eight years and six months imprisonment on each charge of supplying pseudoephedrine are substituted.
DThe appellant is to serve a minimum non-parole period of four years and three months imprisonment.
____________________________________________________________________
REASONS OF THE COURT
(Given by Fogarty J)
Introduction
The appellant, Mr Ma, pleaded guilty to 43 charges of supplying a class B controlled drug pseudoephedrine. He was sentenced in the High Court to nine years and four months imprisonment with a minimum term of imprisonment of four years and six months.[1]
The sentence is appealed on two grounds:
(a)The starting point was too high; and
(b)A minimum period of imprisonment should not have been imposed.
The starting point
The charges against Mr Ma arose out of two major police investigations into methamphetamine and pseudoephedrine distribution in the Auckland area.
The police investigation disclosed that Mr Ma supplied 74 sets of ContacNT containing pseudoephedrine for customers of a Mr Tran. On a further 27 occasions, between 18 August and 30 November 2013, Mr Ma supplied at least 155 sets of ContacNT for the customers of another dealer, Mr Zhang. It was not possible to determine the exact amount supplied to the customers of Mr Zhang.
The High Court sentence
Venning J recognised that the total amount supplied by Mr Ma was uncertain but sentenced him on the basis that he had supplied at least 229 sets. 229 sets amounts to 51 kilograms of ContacNT, or around 20.6 kilograms of pure pseudoephedrine, and has a street value of between $1,832,000 and $2,061,000.
When the police operation was terminated and Mr Ma was arrested the police found $8,000 in his possession.
Mr Ma was sentenced in the High Court in company with two other offenders, Mr Tran and Mr Lee.
Before the High Court, the Crown submitted that the appropriate starting point for the totality of Mr Ma’s offending was 14 years imprisonment before taking into account mitigating factors. By contrast, Mr Ma’s counsel submitted a starting point of nine to 10 years imprisonment is appropriate. Fourteen years is the maximum term of imprisonment for supply of the class B drug pseudoephedrine.[2]
[2]Misuse of Drugs Act 1975, s 6(1)(c) and (2)(b).
In supporting a starting point of nine to 10 years imprisonment, Mr Ma’s counsel submitted Mr Ma’s role was limited to that of a courier, receiving only small cash payments each delivery. In sentencing, Venning J said:
[25] However even though a courier, in your case Mr Ma the extent of your involvement affects your culpability and supports a starting…
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- AGLC
- MA v The Queen [2016] NZCA 362
- Case
- [2016] NZCA 362
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CaseChat Overview and Summary
The central issue was whether the starting point for the appellant's sentence was appropriate. The appellant's counsel argued that the starting point should have been nine to 10 years imprisonment, while the Crown submitted that a starting point of 14 years imprisonment was appropriate. The Court found that the starting point of 12 years and six months imprisonment was too high and substituted a starting point of 11 and a half years. The Court also found that the imposition of a minimum period of imprisonment was appropriate.
The Court of Appeal allowed the appeal against sentence. The sentence of nine years and four months imprisonment was quashed, and concurrent sentences of eight years and six months imprisonment on each charge of supplying pseudoephedrine were substituted. The appellant was to serve a minimum non-parole period of four years and three months imprisonment.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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