MA v The Queen - [2016] NZCA 362

IN THE COURT OF APPEAL OF NEW ZEALAND

CA311/2015
[2016] NZCA 362

BETWEEN	ZIYANG MA Appellant
AND	THE QUEEN Respondent

Hearing:	19 July 2016
Court:	Randerson, Fogarty and Collins JJ
Counsel:	K H Maxwell for Appellant Z R Johnston for Respondent
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.

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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]
[1]R v Lee [2015] NZHC 976.
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…

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 MA v The Queen

Details

AGLC: MA v The Queen [2016] NZCA 362
Case: [2016] NZCA 362
Decision Date: 28 July 2016 at 10:30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Mr. Ziyang Ma, appealed against his sentence for 43 charges of supplying a class B controlled drug pseudoephedrine. The Crown argued that the starting point for sentencing was too high and that a minimum period of imprisonment should not have been imposed. The appeal was heard by Randerson, Fogarty, and Collins JJ.

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