R v Feng - [2016] NZHC 1333

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-004-3038 [2016] NZHC 1333

THE QUEEN

v

JINSONG FENG

Counsel:
SL McColgan for Crown

MJ Dyhrberg QC and PJ Barrowclough for defendant

Sentenced:

17 June 2016

Charges:

Conspiracy to possess methamphetamine for supply

Plea:

Guilty

Sentence:

6 years 9 months

SENTENCING NOTES OF FAIRE J

Solicitors: Meredith Connell, Auckland

To: M Dyhrberg QC, Auckland
P Barrowclough, Auckland

R v Feng [2016] NZHC 1333 [17 June 2016]

Contents

Introduction ............................................................................................................[1] Facts .......................................................................................................................[2] Co-offenders...........................................................................................................[4] Personal circumstances ..............................................................................................
Prior Convictions  [6]
Pre-Sentence Report  [7]
Character References  [9] Purposes and Principles of Sentencing ................................................................ [11]
Submissions................................................................................................................
Crown Submissions  [14]
Offender’s Submissions  [15]

Sentencing ..................................................................................................................
Tariff Case – Fatu [16]

Analysis ......................................................................................................................
Setting a Starting Point [28]
Adjusting the Starting Point [33] Minimum Period of Imprisonment.......................................................................[41] Conclusion............................................................................................................[43]

Introduction

[1] Mr Feng, you appear for sentence today having pleaded guilty to one count of conspiring to possess methamphetamine for the purpose of supply for which the maximum penalty is 14 years imprisonment.1 Your trial on this charge was set down to begin on 23 May 2016; you entered your guilty plea at callover on 18 May 2016.

Facts

[2] The facts of your offending can be shortly stated. Prior to 24 March 2015, you communicated with Mr Yeun, a Hong Kong national who was visiting New

1 Misuse of Drugs Act 1975, ss 6(1)(f) and 6(2A).

Zealand, to arrange to pick up some methamphetamine from him. On Tuesday

24 March 2015, you met Mr Yeun on Karangahape Road in Auckland and took a white crystalline substance from him. You thought the substance was methamphetamine but in fact most of the methamphetamine had been replaced with rock salt by the New Zealand Customs Service.

[3] Later that day, police executed a search warrant on your house. In your lounge area, they located one kilogram of the rock salt as well as snap lock bags, scales and other items associated with dealing methamphetamine.

Co-offenders

[4] Your co-offender, Mr Yeun pleaded guilty to importing and possession for supply of 40 kilograms of methamphetamine, and one charge of conspiring to supply one kilogram of methamphetamine. He was sentenced on 5 April 2016 to 15 years seven months’ imprisonment by Justice Courtney.2 For the charge of conspiring to supply, he was sentenced to 12 years to be served concurrently. Justice Courtney did not impose a minimum period of imprisonment.3

[5] Your, co-offender, Ms Sze was convicted following trial of importing, possessing for supply, and conspiring to supply methamphetamine. She has not yet been sentenced.

Personal circumstances

Prior Convictions

[6] Mr Feng, you have six previous convictions which are, in comparison with your current charge, for minor offending. There are two convictions for driving with excess breath alcohol, one for wilful trespass, one for failing to answer District Court bail, one for obstructing/hindering police and one for driving while your licence was suspended or revoked. You have never received a sentence of imprisonment.

Pre-Sentence Report

[7] The pre-sentence report states that it is…

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 Feng

Details

AGLC: R v Feng [2016] NZHC 1333
Case: [2016] NZHC 1333
Decision Date: 17 June 2016

CaseChat Overview and Summary

In the High Court of New Zealand, the defendant, Jinsong Feng, appeared for sentencing following a guilty plea to conspiracy to possess methamphetamine for supply. The court had to determine the appropriate sentence, taking into account various legal issues, including the defendant's role in the conspiracy, the seriousness of the offence, and the purposes and principles of sentencing. The Crown suggested a starting point of between 10 and 11 1/2 years’ imprisonment, with a discount of up to 20 per cent for the guilty plea. The defence argued for a starting point between 8 years, 3 months and 9 years with discounts of 20 to 25 per cent for the guilty plea and 5 to 10 per cent for previous good character and remorse. The court considered the case of R v Fatu as the tariff case for methamphetamine-related offending and adjusted the bands accordingly for the conspiracy charge. After considering the defendant's role in the operation, the amount of methamphetamine involved, and the fact that the charge was for conspiracy, the court set a starting point of nine years’ imprisonment. The court then adjusted the starting point by discounting the sentence by five per cent for previous good character, remorse and supportive friends and family, and by 20 per cent for the guilty plea. The court did not impose a minimum period of imprisonment.

The final orders were that Mr Feng be sentenced to six years, nine months' imprisonment for conspiracy to possess methamphetamine for supply.

Orders