R v Wan - [2017] NZHC 2376

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2016-004-7800 [2017] NZHC 2376

THE QUEEN

v

HO HIN (GABRIEL) WAN

Hearing: 29 September 2017

Counsel:

T Hu for Crown
JG Krebs for defendant

Sentenced:

29 September 2017

SENTENCING NOTES OF FITZGERALD J

Solicitors: Meredith Connell, Auckland
Gifford Devine, Hastings

R v Wan [2017] NZHC 2376 [29 September 2017]

Background

[1] Mr Wan, you appear for sentence before me today having been found guilty by a jury of importing a class A controlled drug, methamphetamine. And, as you will know, the maximum penalty for that is life imprisonment.

Facts

[2] I will now set out the background facts to your offending. And these facts are of course well known to you and to the lawyers hear today, but it is important that others who are here today and who might read this sentencing are aware of the basis upon which I am sentencing you today.

[3] Your conviction relates to a package intercepted by New Zealand Customs officials on 27 July 2016. It was sent from Hong Kong by air, and was labelled as containing kitchen spatulas. But concealed amongst the spatulas, Customs found
19.1 kilograms of methamphetamine. And that is a very large amount of methamphetamine in terms of importations into New Zealand. Your role in the importation centres on certain things you did, at the direction of others in Hong Kong, to receive that package into New Zealand. And your role in a drug importation of this kind I accept is often referred to as a “catcher”.

[4] You said you came to New Zealand at the suggestion of a friend in Hong Kong, who introduced to you some men, who you referred to as “the company”. And you said that it was agreed that they would pay for you to travel to New Zealand in order to receive goods into New Zealand on their behalf. You did this expecting to get paid for doing so, as you said in your interview with Customs officials that you agreed to do this so that you could earn some money for later study in Taiwan.

[5] You said that you had asked at the outset whether the goods would be drugs, but were told they would not be, but that “the company” did not tell you what the goods would be. Your lawyer has submitted in his written submissions that you thought the goods would be sports shoes, but in your interview with Customs officials, you said you only found this out the night before you were arrested, when you asked your friend back in Hong Kong what the package was to contain.

[6] You arrived at Auckland Airport from Hong Kong on 8 May 2016. On entering this country, you carefully and deliberately lied to Customs officials when questioned about your reasons for visiting New Zealand. You said you were here for a short holiday, had a return ticket for eight…

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 Wan

Details

AGLC: R v Wan [2017] NZHC 2376
Case: [2017] NZHC 2376
Decision Date: 29 September 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of R v Wan was heard before Fitzgerald J, who sentenced Mr Wan for the importation of a class A controlled drug, methamphetamine. Mr Wan had been found guilty by a jury of importing 19.1 kilograms of methamphetamine, a crime that carries a maximum penalty of life imprisonment. The court was required to determine an appropriate starting point for sentencing, adjust for Mr Wan's personal circumstances, and decide whether a minimum period of imprisonment should be imposed. In setting a starting point, Fitzgerald J considered the quantity of methamphetamine, the sophistication of the importation, and Mr Wan's role within the drug ring. The court determined that a starting point of 17 years and six months’ imprisonment was appropriate. After adjusting for personal factors, such as Mr Wan's age, lack of prior convictions, and limited English proficiency, the final sentence was set at 16 years and 6 months’ imprisonment. The court decided against imposing a minimum period of imprisonment, finding that the lengthy sentence already imposed would serve as a sufficient general deterrent. Mr Wan was sentenced to 16 years and 6 months’ imprisonment for importing methamphetamine, with no minimum period of imprisonment imposed.

Orders