R v Chan - [2009] NZCA 528

IN THE COURT OF APPEAL OF NEW ZEALAND
CA321/2009
[2009] NZCA 528
THE QUEEN
v
CHIT HEI CHAN
Hearing:10 November 2009

Court:Robertson, Rodney Hansen and Courtney JJ
Counsel:D G Young for Appellant

B D Tantrum for Crown

Judgment:11 November 2009 at 3.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
[1]        This is an appeal against an effective term of eight years’ imprisonment imposed by Priestley J on 5 May 2009 after a plea of guilty had been entered to one count of importing a class A drug, methamphetamine: HC AK CRI 2008-092-11192.
[2]        It is argued that the sentence was manifestly excessive because the discounts allowed from the starting point were insufficient and there was a lack of parity between the sentence imposed on the appellant and a co-accused.
[3]        Priestley J in sentencing said:
[2]         You and an associate, a friend of yours, Ms Lau, were co-offenders. Both of you resided in Hong Kong. Although there was some suggestion by Ms Lau that you and she were living in a de facto relationship you have disputed that and, for the purposes of sentencing, I accept your explanation.
[3]         On 28 January 2008 you and your co-offender arrived at Auckland International Airport on a flight from Hong Kong. You were searched in the customs area. A personal search of your body revealed that there were packages of methamphetamine hidden in the soles of each of your shoes and you also had packets of methamphetamine strapped around your body. The total number of packages involved, so far as you were concerned, was five. The total amount of methamphetamine strapped to your body or hidden in your shoes was 537.4 gms.
[4]         Your co-offender, for what it was worth, also had five packages on her. The weight of the methamphetamine she was carrying was slightly higher, 572.6 gms.
[5]         The street value of the total importation brought into the country by you and your co-offender was approximately $1.1 million. If I were to look at the methamphetamine which you alone were bringing into New Zealand it would be somewhat over half a million dollars.

[4]        There is no challenge made to the starting point of 12 years which was adopted. It was the lower end of the band 4 of R v Fatu [2006] 2 NZLR 72 (CA). A 12 year starting point was in fact the optimistic submission of Mr Chan’s own counsel before the High Court.
[5]        The Judge mercifully noted that this starting point included the aggravating feature of premeditation.
[6]        The mitigating factors which were referred to were a credit for the plea of guilty, a degree of leniency because Mr Chan had the responsibilities of a parent towards a young child, the fact Mr Chan was friendless in New Zealand and that imprisonment in an alien culture surrounded by strange language would make imprisonment a more severe penalty for him than for many. The Judge also…

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 R v Chan

Details

AGLC: R v Chan [2009] NZCA 528
Case: [2009] NZCA 528
Decision Date: 11 November 2009

CaseChat Overview and Summary

The appeal in R v Chan was heard by the Court of Appeal of New Zealand, which was comprised of Robertson, Rodney Hansen and Courtney JJ. The appellant, Chit Hei Chan, appealed against an effective term of eight years’ imprisonment that had been imposed on him by Priestley J following a guilty plea to one count of importing a class A drug, methamphetamine. The appellant argued that the sentence was manifestly excessive due to insufficient discounts from the starting point and a lack of parity between his sentence and that of his co-accused, Ms Lau. The starting point of 12 years was adopted, which was the lower end of the band 4 of R v Fatu. The mitigating factors considered included a credit for the plea of guilty, the appellant’s responsibilities as a parent towards a young child, the fact that the appellant was friendless in New Zealand, and the severity of imprisonment in an alien culture. The Judge allowed a reduction of one-third, which he described as “appropriate and generous.” The court held that the appellant’s personal circumstances could at most have justified a reduction of three or four months, and his co-operation with the police could only attract a discount of three or four months. The court also noted that the sentence imposed on the appellant’s co-accused was seven years and six months’ imprisonment, which was justified based on the mitigating factors considered by the Judge. The appeal was dismissed as it had no merit.

Orders