Pai v R

Case [2020] NZCA 146 6 May 2020

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA18/2019
[2020] NZCA 146

BETWEEN	HAO-JEN PAI Appellant
AND	THE QUEEN Respondent

Hearing:	3 March 2020
Court:	Courtney, Ellis and Brewer JJ
Counsel:	B L Sellars QC for Appellant Z A Fuhr for Respondent
Judgment:	6 May 2020 at 12.30 pm

JUDGMENT OF THE COURT

AThe application for extension of time to appeal is granted.
BThe appeal is allowed.
CThe sentence and MPI are quashed.
DThe substituted sentence is 10 years and 10 months’ imprisonment with a MPI of five years and five months’ imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brewer J)

Introduction

On 25 September 2015 Lang J sentenced Mr Pai to 12 years and eight months’ imprisonment on one charge of importing methamphetamine and one charge of possessing methamphetamine for supply.[1] Lang J also imposed a minimum period of imprisonment (MPI) of 50 per cent of the sentence. Mr Pai entered pleas of guilty to the charges having received a sentence indication from Faire J on 31 July 2015.[2]
[1]R v Pai [2015] NZHC 2345 at [16] [Sentencing decision].
[2]R v Pai [2015] NZHC 1808 [Sentence indication].
Mr Pai now wishes to appeal his sentence contending it is manifestly excessive. He submits also that no MPI should have been imposed.
Mr Pai filed his notice of appeal on 23 January 2019. That is about three years and three months out of time.[3] Accordingly, Mr Pai applies to the Court to extend the time for filing the notice of appeal.
[3]Criminal Procedure Act 2011, s 248(2).
The Crown opposes Mr Pai’s application.
Mr Pai has filed an affidavit in support of his application. In it he explains that as a young Chinese man with very limited English he had little knowledge of the New Zealand legal system and tried unsuccessfully for some time to find a lawyer with whom to discuss his case. He deposes that the counsel who represented him at sentencing had told him the sentence was a fair one and that an appeal could not succeed. Mr Pai says it was only a change of cellmates that brought Ms Sellars QC’s name to his attention.
In R v Lee, this Court said that:[4]
… A long delay is a major factor weighing against leave being granted and, if unexplained, would usually be decisive.
[4]R v Lee [2006] 3 NZLR 42 (CA) at [115].
Mr Pai filed his notice of appeal within the period which would otherwise entitle his case to be assessed through the lens of the new tariff case on methamphetamine offending, Zhang v R.[5] One of the cases considered by the Court in Zhang was that of Mr Yip.[6] He was in a similar position to Mr Pai in that he brought his appeal approximately two years and nine months out of time. The Court granted Mr Yip’s application.
[5]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [188].

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 Pai v R

Details

AGLC: Pai v R [2020] NZCA 146
Case: [2020] NZCA 146
Decision Date: 6 May 2020 at 12.30 pm

CaseChat Overview and Summary

Hao-Jen Pai appeals his sentence for drug importation and possession for supply, contending it is manifestly excessive. He also submits that no minimum period of imprisonment (MPI) should have been imposed. The Crown opposes the appeal and argues that the sentence was appropriate and the MPI was correctly imposed. Mr Pai filed his notice of appeal on 23 January 2019, about three years and three months out of time. He applies to the Court to extend the time for filing the notice of appeal. Mr Pai's affidavit states that he had little knowledge of the New Zealand legal system and unsuccessfully tried to find a lawyer to discuss his case with. He says the counsel who represented him at sentencing told him the sentence was a fair one and that an appeal could not succeed. Mr Pai says it was only a change of cellmates that brought Ms Sellars QC's name to his attention.

The Court begins by explaining that a long delay is a major factor weighing against leave being granted and, if unexplained, would usually be decisive. The Court notes that Mr Pai filed his notice of appeal within the period which would otherwise entitle his case to be assessed through the lens of the new tariff case on methamphetamine offending, Zhang v R. The Court also notes that Mr Pai's personal circumstances as a foreign national with limited English are relevant. The Court grants Mr Pai's application and extends the period for the filing of his notice of appeal.

The Court then assesses Mr Pai's sentence through the lens of Zhang to determine whether an error has been made such that his end sentence is manifestly excessive and should be reduced. The Court also assesses whether a MPI should have been imposed. The Court finds that Mr Pai's sentence of 12 years and eight months' imprisonment was manifestly excessive and that the imposition of a 50 per cent MPI was appropriate. The appeal is allowed. Mr Pai's sentence and MPI are quashed. They are replaced with a sentence of 10 years and 10 months' imprisonment and a MPI of five years and five months' imprisonment.

Orders