Mingsisouphanh v The Queen - [2018] NZCA 571

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA190/2018
[2018] NZCA 571

BETWEEN	THAMMANOUN MINGSISOUPHANH Appellant
AND	THE QUEEN Respondent

Hearing:	12 November 2018
Court:	Asher, Lang and Moore JJ
Counsel:	K J Simonsen and A J Holland for Appellant M R Harborow for Respondent
Judgment:	10 December 2018 at 11 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Introduction

Thammanoun Mingsisouphanh appeals his sentence of 14 years’ imprisonment with a minimum term of seven years’ imprisonment, for a number of serious drug offences.[1] He pleaded guilty to possession of material with intent to manufacture methamphetamine; possessing equipment with intent to manufacture methamphetamine; conspiring to manufacture methamphetamine; possession of ephedrine for supply; and possession of cocaine for supply.
[1]R v Mingsisouphanh [2018] NZHC 532.
We set out the facts of the offending, drawing from Venning J’s judgment in the High Court.
On 14 January 2017, a consignment of cargo containing an estimated 160 litres of t-Boc methamphetamine, labelled as dishwashing liquid, left Hong Kong. It arrived in New Zealand on 28 January 2017 and a Customs examination revealed the t-Boc methamphetamine. T‑Boc is added to methamphetamine that has already been manufactured to mask the methamphetamine. It can be removed through a chemical process enabling the remainder to be supplied as methamphetamine. Environmental Science and Research (ESR) estimate that, with the addition of hydrochloric acid and the completion of an evaporation process, the 160 litres seized was capable of producing 46 kilograms of pure methamphetamine.
Customs substituted a placebo for the majority of the t-Boc methamphetamine and a controlled delivery was made to an address in Papakura. On 18 February 2017, Mr Mingsisouphanh and a co-offender, Mr Wong, uplifted the consignment and put it into storage in a storage unit in New Lynn. Mr Mingsisouphanh had rented the storage unit the previous day.
Later in the day Mr Mingsisouphanh left Auckland for Sydney. On 21 February 2017, the police installed audio and visual surveillance devices in the storage unit. Mr Wong and a further co-offender, Mr Chan, were observed at the storage unit over the next few days. Mr Mingsisouphanh arrived back in Auckland on 23 February 2017.
On 28 February 2017, Mr Mingsisouphanh and Mr Wong went to the storage unit again. Mr Mingsisouphanh took samples from one of the containers with the placebo inside it and he placed that into two small bottles. He put them in a plastic bag, put that in the boot of his car, and went to Mr Wong’s address.
Between 27 February and 13 March 2017 three parcels containing a rotary evaporator, an agitator and various other items of glassware and equipment arrived in New Zealand. They arrived under false descriptions.
On 14 March 2017 Mr Mingsisouphanh, together with Mr Wong and Mr Chan, collected the packages containing the agitator and glassware and took them to an address in Lynfield where they unloaded them…

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 Mingsisouphanh v The Queen

Details

AGLC: Mingsisouphanh v The Queen [2018] NZCA 571
Case: [2018] NZCA 571
Decision Date: 10 December 2018 at 11 am

CaseChat Overview and Summary

Thammanoun Mingsisouphanh appeals his sentence of 14 years’ imprisonment with a minimum term of seven years’ imprisonment for various drug-related offences. The Court of Appeal was asked to consider the appeal against sentence, focusing on whether the sentence was manifestly excessive. Mingsisouphanh pleaded guilty to multiple serious drug offences, including possession with intent to manufacture methamphetamine, possession of equipment for the manufacture of methamphetamine, conspiracy to manufacture methamphetamine, and possession of ephedrine and cocaine for supply. The Court considered the severity of the offending, the involvement of Mingsisouphanh in the conspiracy, and the quantities of drugs involved.

The appeal centred on whether the sentence was manifestly excessive, focusing on the appropriate starting point and the discount for personal mitigating factors. The Court noted that Mingsisouphanh played a central role in a large-scale drug conspiracy, involving 160 litres of t-Boc methamphetamine, which could be converted into 46 kilograms of pure methamphetamine. The quantities of other drugs found, his active involvement over an extended period, and the absence of remorse or good character discount supported the Judge's decision. The Court found no error in the six-month discount for personal mitigating factors, considering the lack of previous convictions and the serious nature of the offences. Regarding the minimum term, the Court found the 50 per cent minimum term appropriate, given the significant role Mingsisouphanh played and the need for denunciation and deterrence.

The Court of Appeal dismissed the appeal against sentence, finding the sentence appropriate given the circumstances. The 14-year imprisonment term with a minimum of seven years was considered suitable for the serious nature of the offences and the central role Mingsisouphanh played in the drug conspiracy.

Orders