R v Wong

Case [2009] NZCA 332 29 July 2009

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA218/2009
[2009] NZCA 332
THE QUEEN
v
SIK CHEUNG WONG
Hearing:27 July 2009

Court:Baragwanath, Venning and Winkelmann JJ
Counsel:D G Young for Appellant

A M Powell for Crown

Judgment:29 July 2009 at 4pm

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
[1]       This is an appeal against a sentence of 11 years three months’ imprisonment with a minimum non-parole period of 50 per cent for importing methamphetamine. The sentence was imposed by Miller J. The Judge also sentenced the appellant to a concurrent term of imprisonment for nine years nine months for having possession of methamphetamine for the purposes of supply. The sentences followed the appellant’s guilty pleas to the charges.
Background
[2]       The appellant came to New Zealand on 30 June 2007 to complete the planned importation of a large quantity of methamphetamine from Hong Kong. The police monitored the activities and communications of those involved. The investigation disclosed that the importation operation was carefully planned and executed. The appellant rented an apartment in Auckland and faxed its address to a colleague in Hong Kong. He then continued to communicate with associates overseas about the importation. Two cardboard boxes were sent to the address from Canada. The customs declaration proclaimed that the boxes contained figurines. In fact they contained approximately two kilograms of methamphetamine skilfully packaged to conceal the drug.
[3]       Customs and police officers intercepted the drugs and substituted the methamphetamine with an imitation substance. The packages were resealed and delivered to the appellant by customs officers posing as courier company delivery persons on 19 July 2007. Later that day the police entered the appellant’s apartment. The appellant admitted the drugs were in the bedroom.
Sentencing
[4]       The appellant pleaded guilty to both charges. Despite the guilty pleas he sought to minimise his knowledge of the drugs in his possession when speaking to the writer of the pre-sentence report. But through counsel he confirmed he accepted the summary of facts for sentencing purposes. On the basis of the summary of facts, Miller J categorised the appellant’s role as a responsible one, equivalent to that of a manager or organiser. The Judge noted the importation fell into band 4 of R v Fatu [2006] 2 NZLR 72 at [36] (CA). That attracted a starting point of between 12 years and life imprisonment. Mr Haigh QC argued for a starting point of 13 and a half years. Miller J considered a number of other authorities, including R v Jarvid HC AK CRI 2005-004-014044 4 September 2007 and R v Nguyen HC AK CRI 2008-092-002791 14 November 2008, which demonstrated that starting points of between 11 and 13 years had been adopted for couriers. The Judge then took a starting point of 15 years, given the quantity of drugs involved and his assessment of the appellant’s role in the importation.
[5]       Miller J accepted that there were no personal aggravating factors. He…

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 Wong

Details

AGLC: R v Wong [2009] NZCA 332
Case: [2009] NZCA 332
Decision Date: 29 July 2009

CaseChat Overview and Summary

In R v Wong, the appellant was convicted of importing and possessing methamphetamine for the purposes of supply. The appeal against the sentence of 11 years three months' imprisonment with a minimum non-parole period of 50 per cent was dismissed by the Court of Appeal of New Zealand. The appellant, Wong, had come to New Zealand with the intent to complete the importation of a large quantity of methamphetamine from Hong Kong. The operation was carefully planned and executed, with the appellant arranging for the drugs to be sent to his rented apartment in Auckland. The police intercepted the drugs and substituted them with an imitation substance before delivering them to Wong. Following his guilty pleas, Miller J sentenced Wong to the aforementioned term of imprisonment.

The appellant argued that the sentence was manifestly excessive on several grounds. Firstly, he contended that the starting point of 15 years was set too high. The Court found that the starting point was within the range appropriate for the offence, given the commercial nature of the importation and the appellant's role as a manager or organiser. Secondly, the appellant submitted that insufficient credit had been given for mitigating factors. The Court held that Miller J had properly considered the mitigating factors and had allowed a 25 per cent discount for the guilty plea, which was not materially different from the 28 per cent discount proposed by the appellant's counsel. Lastly, the appellant argued that there was no need for a minimum non-parole period. The Court disagreed, finding that the criteria for an order under s 86 were made out, and that the Judge had exercised leniency by fixing the minimum period of imprisonment at 50 per cent.

The appeal against sentence was dismissed, and the original sentence was upheld. Wong's solicitors were John Sellers of Auckland, and the Crown was represented by the Crown Law Office of Wellington.

Orders