R v Wang

Case [2014] NZCA 409 22 August 2014

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA882/2013
[2014] NZCA 409

BETWEEN	THE QUEEN Appellant
AND	JIQING WANG Respondent

Hearing:	12 August 2014
Court:	Stevens, Simon France and Mallon JJ
Counsel:	M D Downs and Z R Hamill for Appellant P E Dacre QC for Respondent
Judgment:	22 August 2014 at 3.00 pm

JUDGMENT OF THE COURT

AThe application for leave to appeal is granted.
BThe appeal is allowed.
CThe sentence of four years and six months’ imprisonment is quashed and a sentence of seven years and six months’ imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

The respondent Mr Wang was convicted following trial by jury of possessing 11.2 kilograms of pseudoephedrine for the purpose of supply.[1] He was sentenced to four years and six months’ imprisonment by Katz J.[2]
[1]Misuse of Drugs Act 1975, s 6(1)(f).
[2]R v Wang [2013] NZHC 3259.
The Solicitor-General applies for leave to appeal against this sentence on the ground it is manifestly inadequate. The key question is whether the sentence imposed adequately took into account the reclassification of pseudoephedrine from a Class C to a Class B controlled substance.
The respondent opposes the appeal on its merits but does not oppose leave to appeal being granted.

Background

In August 2012, a shipment from China containing an oven was intercepted by Customs at Auckland Port. The oven contained 35.32 kilograms of ContacNT. This amounted to 11.2 kilograms of pseudoephedrine, with the potential to produce around 5.6–7.84 kilograms of methamphetamine, with an estimated street value of between $5.6–$7.84 million.
The oven was initially to be delivered to a central Auckland apartment. It became apparent it was too large to be delivered there. Mr Wang’s address was provided as an alternative delivery address. Thereafter, on 12 September 2012, a controlled delivery was carried out to Mr Wang’s address.
Mr Wang’s residence was searched by police and some electronic devices belonging to him were seized. These revealed extensive correspondence with a China-based friend called Lucky, whom Mr Wang had visited numerous times in jail. Lucky was involved in orchestrating the importation of the oven from China. These messages provided instructions to Mr Wang not to touch the oven, to deny knowledge of its contents, and storage advice so as to distance Mr Wang from the oven. Calendar entries in Mr Wang’s telephone related to importing and “catching” the drugs in New Zealand.
There were also references to meetings with recruiters of potential catchers, the meaning and subject of which was denied by Mr Wang at trial. Finally, there was evidence of exchanges between Mr Wang and his girlfriend, instructing her as to conducting the delivery of the oven at their apartment in a manner to avoid her interacting with the delivery agents, or making it appear as if the delivery were not linked to her. Upon delivery, Mr Wang photographed the consignment and delivered a picture to Lucky by logging into Lucky’s email account and saving the picture…

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 Wang

Details

AGLC: R v Wang [2014] NZCA 409
Case: [2014] NZCA 409
Decision Date: 22 August 2014 at 3.00 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the Crown appealed against the sentence imposed on Jiqing Wang, who was convicted of possessing 11.2 kilograms of pseudoephedrine for the purpose of supply. The Crown argued the sentence of four years and six months’ imprisonment was manifestly inadequate. The primary issue before the Court was whether the sentence adequately took into account the reclassification of pseudoephedrine from a Class C to a Class B controlled substance. The Court considered the role Wang played in the importation and possession of the drugs, as well as the need for flexibility in applying sentencing guidelines.

The Court found that Wang's involvement in the importation and possession of pseudoephedrine was significant and his role in the operation was more than that of a minor participant. The Court concluded that the sentencing judge failed to place sufficient weight on the reclassification of pseudoephedrine from a Class C to a Class B controlled drug, resulting in a starting point well below the available range. The Court determined that a starting point of eight years’ imprisonment was appropriate and substituted a sentence of seven years and six months’ imprisonment, inclusive of a six-month discount for good character.

The appeal was allowed, and the original sentence was quashed, replaced with a sentence of seven years and six months’ imprisonment. The Court of Appeal emphasised the importance of considering the reclassification of pseudoephedrine and the role of the offender in determining an appropriate starting point for sentencing.

Orders