R v Gan - [2016] NZHC 2349

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000114 [2016] NZHC 2349

THE QUEEN

v

YIXIN GAN

Hearing: 4 October 2016

Counsel:

S L McColgan and O M Klaassen for Crown
G J Newell and Y Wang for Defendant

Judgment:

4 October 2016

SENTENCING NOTES OF DOWNS J

Solicitors/Counsel:
Crown Solicitor, Auckland.
G J Newell, Auckland.

R v GAN [2016] NZHC 2349 [4 October 2016]

Introduction

[1] Ms Gan, you appear for sentence after a jury found you guilty of three charges in a trial last month: importing 250 kilograms of ContacNT, which contains pseudoephedrine (charge 1); possessing the same drugs for the purpose of supply (charge 2); and importing an earlier quantity of pseudoephedrine (charge 4).1 As you know pseudoephedrine is a Class B controlled drug.

[2] Sentencing is dependent on charge, fact and case law. Each of your charges carries a maximum penalty of 14 years’ imprisonment. The facts I will come to. As to case law, the operative principle is that the quantity of the drugs and the role of the offender assume particular importance when sentencing for dealings in controlled drugs. I will say more about this shortly, but first let me say something about the facts of your case.

The facts

[3] You arranged with a contact in China to import at least 250 kilograms of ContacNT from there to New Zealand. That amount of ContacNT yields approximately 100 kilograms of pseudoephedrine. The drugs were packaged and labelled as potato starch or corn starch. They arrived here on or about 4 October
2013 in a larger shipment of goods imported by you.

[4] You had a legitimate importation business in which you brought goods, largely foodstuffs, to New Zealand from China but destined for Tonga. The goods would go to a customs-secure area in Auckland, operated under license by Ezi World Cargo Ltd, and from there, to Tonga. At some point—and exactly when we don’t know—you appreciated this presented an opportunity for great profit. You persuaded the operator of Ezi World Cargo Ltd, Mr Uele, to remove goods packaged
and labelled as potato starch or corn starch, but which really contained

1 The jury acquitted you of charge 3, which alleged yet earlier importation of pseudoephedrine between December 2009 and September 2011 (the charges went backwards in time). I assume the jury saw this time period as too remote from the October 2013 shipments in relation to charges 1 and 2. And, while there was evidence of large cash deposits within the period accompanying charge 3, that evidence was not quite as striking as it was in relation to charge 4, particularly as to the related cash flows of Ezi World Cargo Ltd.

pseudoephedrine, and to replace those packages with their innocuous counterparts. So, the foodstuffs would go on to Tonga, while the drugs would remain here.

[5] You later put that plan into effect by arranging for the shipment containing ContacNT to come to New Zealand from China. And when the shipment arrived…

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 Gan

Details

AGLC: R v Gan [2016] NZHC 2349
Case: [2016] NZHC 2349
Decision Date: 4 October 2016

CaseChat Overview and Summary

In the case of R v Gan, the defendant was found guilty of three charges: importing 250 kilograms of ContacNT, which contains pseudoephedrine; possessing the same drugs for the purpose of supply; and importing an earlier quantity of pseudoephedrine. Sentencing for these offences, which involved a significant quantity of controlled drugs and substantial profits, was dependent on case law and the role of the offender. The court determined that the defendant was the primary architect of the offending in New Zealand, arranging for the shipment and exploiting a legitimate business to camouflage the importation.

The court considered the starting point for sentencing, taking into account the quantity of drugs involved, the sophistication of the offending, and the role of the defendant. It was determined that the starting point should be 16 years' imprisonment, with a reduction of two years to account for mitigating factors such as the defendant's first-time offending, voluntary return to New Zealand, and the impact on her young children. The court also imposed a minimum period of imprisonment of eight years and four months to address the purposes of denunciation, deterrence, and protection of the community.

Ultimately, the defendant was sentenced to 14 years' imprisonment, with terms running concurrently. The court imposed a minimum period of imprisonment of eight years and four months, reflecting the seriousness of the offending and the defendant's significant role in orchestrating the drug importation scheme.

Orders