R v Chan - [2017] NZHC 2924

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-2723 [2017] NZHC 2924

THE QUEEN

v

YUEN CHAN

Hearing: 28 November 2017

Appearances:

F Culliney for the Crown
M P Hislop for the Defendant

Judgment:

28 November 2017

SENTENCING NOTES OF GORDON J

R v CHAN [2017] NZHC 2924 [28 November 2017]

Solicitors: Crown Solicitor, Auckland
Counsel: M P Hislop, Auckland

[1] Mr Chan, you appear today for sentencing on one charge of conspiring to manufacture methamphetamine, possession of material with intent to manufacture methamphetamine and possession of equipment with intent to manufacture methamphetamine. You pleaded guilty to these charges following a sentence indication by me on 10 October 2017.1

[2] I do not propose to describe the facts of your offending again because they are set out in full in my sentence indication, which will be annexed to and form part of this judgment. It is sufficient for today’s purposes to say that you were in possession of t-boc methamphetamine which had been imported into New Zealand, in quantities sufficient to manufacture approximately 46 kilograms of methamphetamine. You were well on the way to carrying out the manufacture. I concluded in my sentence indication that a starting point of 13 years and 10 months’ imprisonment was required to reflect the gravity of your offending.

[3] The Crown accepted then, as they do now, that there were no aggravating features relating to you personally. I indicated that I would give you a deduction of
20 per cent to reflect your guilty pleas, if you accepted the sentence indication.

[4] There are two issues which remain to be determined. The first is whether you should receive any additional reduction to the starting point of 13 years and 10 months’ imprisonment to reflect any mitigating factors relating to you personally. The second is whether the Court should impose a minimum period of imprisonment, over and above the statutory minimum of one-third of your sentence.

[5] Your counsel, Mr Hislop, submits there are several factors which justify a reduction in the starting point. The first of these is good character, on the basis that you have no previous convictions. There are two difficulties with this submission. The first is that the Court has not been provided with any official record of your criminal history in Hong Kong and Canada. The Department of Corrections has attempted to ascertain your criminal history in those countries but has been unable to

do so. The second and more fundamental problem with this submission is that a mere absence of previous convictions does not necessarily justify a discount for previous good character. Something more is required. That is particularly the case in the context of commercial drug offending, where the principle of deterrence carries very significant weight.2

[6] Next, Mr Hislop submits that the Court should allow a separate discount, over and above that given in respect of your guilty pleas, for remorse. Today Mr Hislop has handed up…

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 [2017] NZHC 2924
Case: [2017] NZHC 2924
Decision Date: 28 November 2017

CaseChat Overview and Summary

In the case of The Queen v Yuen Chan, the defendant was sentenced for conspiring to manufacture methamphetamine, possessing material with intent to manufacture methamphetamine, and possessing equipment with intent to manufacture methamphetamine. The defendant, Mr Chan, pleaded guilty to these charges after receiving a sentence indication from the court. The primary issues before the court were whether to reduce the starting point of the sentence to reflect any mitigating factors, and whether to impose a minimum period of imprisonment (MPI) over and above the statutory minimum. The court considered several submissions from the defendant's counsel, including good character, remorse, rehabilitative efforts in prison, and the challenges of serving a sentence in New Zealand. However, the court found that the defendant's claims of remorse were undermined by his implausible account of events and his continued denial of his involvement in the offending. The court also rejected the argument that the defendant's rehabilitative efforts warranted a discount, as there was no link between the subject matter of the programmes and the nature of the offending.

The court did, however, grant a small discount to reflect the difficulties of serving a prison sentence in New Zealand due to the defendant's separation from his family. The court imposed an MPI of 50% on the charge of conspiracy to manufacture methamphetamine, as it believed that a one-third period would be insufficient to hold the defendant accountable for the harm done to the community and to send a strong deterrent message. The defendant was sentenced to 10 years and 11 months’ imprisonment for the conspiracy charge, with a requirement to serve half of that sentence before being eligible for parole. The charges of possessing material and equipment with intent to manufacture methamphetamine were each sentenced to four years’ imprisonment, to be served concurrently with the lead sentence.

Orders