R v Wang - [2007] NZCA 226

IN THE COURT OF APPEAL OF NEW ZEALAND
CA477/06
[2007] NZCA 226
THE QUEEN
v
NANYIN WANG
Hearing:23 May 2007

Court:Wilson, Williams and Rodney Hansen JJ
Counsel:H E Juran for Appellant

A Markham for Crown

Judgment:5 June 2007 at 12 pm

JUDGMENT OF THE COURT

A        THE APPEAL AGAINST CONVICTION WAS ABANDONED.
B        The appeal against sentence is dismissed.

REASONS OF THE COURT
(Given by Rodney Hansen J)
Introduction
[1]       The appellant was convicted following trial before Judge R Wade and a jury in the Manukau District Court of one count of importing a Class C controlled drug, pseudoephedrine, and one count of conspiracy to import pseudoephedrine. He was sentenced to three years imprisonment. He appealed against conviction and sentence but abandoned his appeal against conviction.
Background facts
[2]       The appellant is a Chinese national who was studying English in New Zealand at the time of the offending. In November 2005 he travelled to China, returning to New Zealand on 4 December. Acting on intelligence received, customs officers stopped and searched him at Auckland airport. Although no drugs were found, the appellant was in possession of a receipt issued by customs authorities in Beijing indicating that “medication” had been taken from him and was being held by the Chinese authorities.
[3]       The appellant was interviewed by customs officers and subsequently by the police. He admitted attempting to leave Beijing airport with approximately 500 packets (5,000 capsules) of Contac NT capsules strapped to his body. Contac NT is a pseudoephedrine-based cold and flu medication legally available in China, which is sold on the illicit drug market in New Zealand for manufacture into methamphetamine. The appellant said he was offered $10,000 to bring the drugs to New Zealand by a man he met at the Auckland Casino.
[4]       The appellant also admitted travelling to China in March and again in April 2005 with another student, Yuanzheng Yu (or “Harry”). The appellant said that on the first trip Harry strapped about 300 packets of Contac NT capsules to his body and tried to persuade him to do the same. He declined to do so. The appellant was acquitted of conspiring with Harry to import the pseudoephedrine into New Zealand.
[5]       When the appellant and Harry again travelled to China in April, the appellant agreed to bring 200 packets (2,000 capsules) of Contac NT to New Zealand strapped to his body. Harry promised to pay him $10,000. The appellant brought the drugs into New Zealand undetected by the authorities.
[6]       At trial the appellant sought to disavow his admissions, claiming they were the result of coercion by customs and the police. He was found guilty of importing pseudoephedrine on or about 5 May 2005 and of conspiring to import pseudoephedrine in November-December.
[7]       The Crown evidence was that each capsule of Contac NT contains 90 milligrams of pseudoephedrine. The total amount involved in the two counts is 630 grams, which would sell for between $28,000 and $49,000 in New Zealand. That quantity of pseudoephedrine…

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 [2007] NZCA 226
Case: [2007] NZCA 226
Decision Date: 5 June 2007

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal against both conviction and sentence in the case of R v Wang. The appellant, a Chinese national studying in New Zealand, was convicted in the Manukau District Court of importing a Class C controlled drug, pseudoephedrine, and conspiracy to import pseudoephedrine. The appeal against the conviction was abandoned, but the appeal against sentence proceeded. The appellant was sentenced to three years imprisonment, and the Crown Law Office appeared on behalf of the respondent.

The primary legal issue before the Court was whether the sentencing judge had correctly assessed the appropriate starting point for the appellant's sentence, given the nature and extent of his involvement in the drug importation. The appellant argued that the starting point should have been lower, taking into account that he had not completed the second importation of pseudoephedrine and had voluntarily withdrawn from the offending after the first attempt was thwarted by Chinese authorities. The Crown argued that the starting point was appropriate, given the premeditated and repeated nature of the offending and the potential harm associated with the importation of pseudoephedrine.

The Court found that the sentencing judge had appropriately categorised the offending as premeditated and repeated, taking into account both consignments and the total quantity of 7,000 capsules involved. The Court noted that while the appellant had not completed the second importation, it was clear that he would have attempted to import the drug if not for the intervention of the Beijing authorities. The Court concluded that the starting point of three and a half years was consistent with recent sentencing levels and decisions and was appropriately reduced by six months to take into account the appellant's previous good character and relative youth. The appeal against sentence was dismissed.

Orders