R v Pai - [2015] NZHC 2345

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-092-13963 [2015] NZHC 2345

THE QUEEN

v

HAO JEN PAI CHIH LIANG CHIEN

Hearing: 25 September 2015

Appearances:

L Radich for Crown
M Kan for Mr Pai
M A Edgar for Mr Chien

Sentence:

25 September 2015

SENTENCING REMARKS OF LANG J

R v PAI & CHIEN [2015] NZHC 2345 [25 September 2015]

[1] Mr Pai and Mr Chien, you appear for sentence today after pleading guilty to charges of importing methamphetamine and being in possession of methamphetamine. As I am sure you know, the maximum penalty under New Zealand law for those offences is life imprisonment. You pleaded guilty after receiving a sentence indication from another Judge.1 That Judge is not available today. I have agreed to sentence you on the basis of the indication given by the other Judge, but taking into account the submissions made by your lawyers today.

Background

[2] I do not propose to set out the facts giving rise to the charges. They are set out fully in the Judge’s sentence indication. They are also contained in a summary of facts that you have agreed is correct. A copy of the other Judge’s sentence indication will be attached to the written transcript of my remarks. It will therefore form part of the sentencing record.

[3] In short, however, you were part of an organised importation of a very substantial quantity of methamphetamine. Your role was to rent properties and to receive shipments of goods from overseas that were found to contain 22.6 kilograms of methamphetamine. When the shipments arrived, you obtained tools to unpack them. The shipments contained machinery. The methamphetamine was packed inside the machinery. Having unpacked the packages of methamphetamine, you left the methamphetamine at the property and went to the airport. You were arrested there on the evening of 13 December 2014 shortly before you were scheduled to leave the country.

The sentence indication

[4] The Judge who gave the sentence indication took a starting point of 18 years imprisonment. He indicated that he would give you a 20 per cent discount for your guilty pleas. This would result in three years eight months being deducted from your sentence. He left open the possibility that he might give you a greater discount for your guilty pleas if your lawyers could show that the pleas could not have been
entered earlier. The Judge also said that further discounts might be given for other

1 R v Pai & Chien [2015] NZHC 1808 (Faire J).

factors personal to you. Furthermore, he said that he intended to impose a minimum term of imprisonment of 50 per cent. This means that he would make an order requiring you to serve one-half of your sentence before being able to apply for parole. The Judge said that he might be prepared to review that issue should your lawyers be able to satisfy him that he should do so.

[5] I am now required to determine all the issues…

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 Pai

Details

AGLC: R v Pai [2015] NZHC 2345
Case: [2015] NZHC 2345
Decision Date: 25 September 2015

CaseChat Overview and Summary

Hao Jen Pai and Chih Liang Chien, both Taiwanese nationals, were sentenced in the High Court of New Zealand for their involvement in the importation of a substantial quantity of methamphetamine. They pleaded guilty to charges of importing methamphetamine and being in possession of methamphetamine for supply. The court, Lang J, was required to determine the appropriate sentence, taking into account the starting point given by another judge, the discount for guilty pleas, and other mitigating factors. Lang J decided on a starting point of 18 years imprisonment, increased the discount for guilty pleas from three years eight months to four years, and reduced the sentence by one year four months to reflect mitigating factors such as the defendants' lack of criminal history, their status as non-English speaking foreign nationals, and their expressions of remorse. Lang J decided to maintain the minimum term of imprisonment of 50 per cent, stating that it was necessary to deter future drug importation. The final sentence for both defendants was 12 years eight months imprisonment, to be served concurrently, with a minimum term of imprisonment of six years four months on each charge.

Orders