R v Chen - [2016] NZHC 3037

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-004-002124 [2016] NZHC 3037

THE QUEEN

v

YEN HUA CHEN

Hearing: 13 December 2016

Appearances:

B R Northwood for Crown
B L Sellars for Mr Chen

Sentence:

13 December 2016

SENTENCE OF FOGARTY J

Solicitors:
Crown Solicitor, Auckland
B L Sellars, Auckland/Russell McVeagh, Auckland

R v CHEN [2016] NZHC 3037 [13 December 2016]

[1] Mr Chen a number of charges were laid by the Crown against you. Charges

1, 3 and 4 have now been dropped by the Crown in the light of your plea of guilty to charge 2, which I have just received and because pleading guilty to charge 2 does enable the Court to fix the appropriate sentence.

[2] You have also agreed through your counsel to be sentenced today without the

Court obtaining a report from the Probation Service.

[3] Crown counsel have advised me, quite properly, the only basis in his view for my reducing the sentence indication might be if I was prepared to enter a discount for significant remorse, but on top of the five per cent discount I have already allowed for no previous convictions and the 25 per cent for a guilty plea, I am satisfied that these are the maximum discounts I would allow from the indicative
sentence using the guide of the decision of R v Fatu.1

[4] You have had the benefit of the sentence indication. You have had advice from your counsel and pleaded guilty against the sentence indication of an indicative end sentence of 12 years six months’ imprisonment.

[5] The reasons for this sentence are set out in the sentence indication, dated 7

December 2016, but also amended today to correct an error in paragraph [18].

[6] So as I explained I am formally amending the date of the sentence indication

to today’s date which is 13 December 2016, and on charge 2 I am sentencing you to

12 years and six months’ imprisonment.

[7] As I explained in the sentence indication I am not imposing a minimum sentence, but rather leaving the matter to be dealt with in the usual way by the Parole Board.

[8] The background subject matter of this offending was an importation of a large quantity of methamphetamine from China in the amount of 39.6 kilograms of

1 R v Fatu [2006] NZLR 72 (CA).

crystals, which with the purity of 76 per cent, is the equivalent to 30 kilograms of pure methamphetamine.

[9] The defendant Mr Chen, arrived from China to assist another man, Mr Hung, in receiving the consignment. This suggests that Mr Chen was a significant player in the organisation of this importation.

[10] The consignment was in 28 boxes described as granite tea trays. It was intercepted by the Customs services. The majority of the drugs were taken out and replaced with a placebo for the purposes of completing a controlled delivery. The consignment was then delivered to the defendants, Mr Hung and Mr Chen, at…

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 Chen

Details

AGLC: R v Chen [2016] NZHC 3037
Case: [2016] NZHC 3037
Decision Date: 13 December 2016

CaseChat Overview and Summary

In the case of the Queen versus Yen Hua Chen, the defendant was sentenced for his involvement in the importation and supply of a large quantity of methamphetamine. The primary charge against Chen was possession for supply, following his guilty plea to charge 2. The Crown had initially laid several charges, but these were dropped in light of Chen's guilty plea. The sentencing hearing took place on 13 December 2016, with both Crown and defence counsel present. The legal issues before the court were primarily around the appropriate starting point for sentencing and the applicable discounts for Chen's plea of guilty and his previously unblemished record. The Crown argued for a starting point of at least 20 years' imprisonment, referencing the case of R v Fatu, and noting that the amount of methamphetamine involved warranted a significant sentence. The defence, on the other hand, contended that a starting point of around 17 to 18 years would be more appropriate, given Chen's role as a "catcher" and the lesser degree of culpability in possession for supply cases.

The court considered the extensive quantity of the drugs involved, which amounted to 39.6 kilograms of crystals with a purity of 76%, equivalent to approximately 30 kilograms of pure methamphetamine. It was clear from the evidence that Chen played a crucial role in the operation, although he was not directly involved in the importation. The court determined that the appropriate starting point for sentencing was 18 years' imprisonment, acknowledging the significant quantity of drugs involved but also considering the defence's arguments regarding Chen's lesser role in the supply chain. After applying the discounts for Chen's plea of guilty and his good character, the court arrived at an indicative end sentence of 12 years and six months' imprisonment. The court also decided against imposing a minimum sentence, opting to leave the matter to the Parole Board for consideration upon completion of Chen's sentence. The final orders of the court were that Chen be sentenced to 12 years and six months' imprisonment, with no minimum sentence imposed.

Orders