R v Yin - [2008] NZCA 257

IN THE COURT OF APPEAL OF NEW ZEALAND

CA199/2008

[2008] NZCA 257

THE QUEEN

v

JUN YIN

Hearing: 30 June 2008
Court: Arnold, Panckhurst and Fogarty JJ Counsel: R J Earwaker for Appellant
M D Downs for Crown

Judgment: 25 July 2008 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Panckhurst J)

R V YIN CA CA199/2008 [25 July 2008]

Introduction

[1] Following trial the appellant was found guilty on a charge of possession of the class C controlled drug pseudoephedrine for the purpose of sale or supply. He was sentenced to two and a half years imprisonment. This appeal is against sentence. The appellant contends that the trial Judge erred in concluding that a sentence of home detention was not an available option and that, in any event, the sentence imposed was clearly excessive given the quantity of pseudoephedrine involved and the appellant’s role in the offending.

The background

[2] On 28 April 2005 a container arrived in Auckland from Hong Kong. Included in the consignment was a lounge suite. Customs officers examined it and found seven plastic bags containing approximately five kilograms of ContacNT pseudoephedrine capsules. The seven bags contained about 17,000 capsules. These
in turn each contained 90 milligrams of pseudoephedrine, or 1.530 kilograms of pseudoephedrine in total.

[3] This quantity of pseudoephedrine was sufficient to yield between 765 grams and 1.150 kilograms of methamphetamine. The potential street value of this quantity
of methamphetamine was in the range of $765,000 to $1,150,000.

[4] Between 24 and 30 May 2005 a person using the name Sun Yun Long (but probably Zhigang Yu) telephoned the shipping company and Customs brokers handling the consignment and arranged for the lounge suite to be delivered to a
Mt Albert address.

[5] On 26 May Zhigang Yu and the appellant went to a bank and the appellant withdrew $1,483 from his account which was paid by Zhigang Yu into the account
of the Customs brokers. This payment facilitated delivery of the lounge suite to the

Mt Albert address.

[6] A controlled delivery of the lounge suite was made on 30 May 2005 at

10.15am. Zhigang Yu identified himself to the Customs officers acting as delivery men as Sun Yun Long and took possession of the lounge suite. As soon as the delivery van left Zhigang Yu and an unidentified male removed the ContacNT from the sofa and took it by car to Zhigang Yu’s apartment in central Auckland.

[7] Later in the day the appellant visited Zhigang Yu’s apartment and two of the seven bags containing ContacNT were given to him. He took them back to his central city apartment. At 10pm that night police officers visited the addresses of the two suspects. In the appellant’s bedroom, concealed beneath clothing in a suitcase, they found the two packages containing ContacNT. The appellant told the police that Zhigang Yu had requested him to look after the suitcase and that he did not know what was…

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 Yin

Details

AGLC: R v Yin [2008] NZCA 257
Case: [2008] NZCA 257
Decision Date: 25 July 2008

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from Jun Yin, who was convicted of possessing the controlled drug pseudoephedrine for the purpose of sale or supply. Yin was sentenced to two and a half years in prison, and he appealed the sentence on the grounds that the trial judge had erred in concluding that home detention was not an available sentencing option and that the sentence imposed was excessive. The Crown accepted that home detention was a jurisdictional option but argued that it was not appropriate in this case.

The Court of Appeal examined whether home detention was an appropriate sentence, considering the seriousness of the offence and the appellant's personal circumstances. The Court found that while Yin was a suitable candidate for home detention due to his young age, naivety, and good prospects for rehabilitation, the seriousness of the offence made it inappropriate. The appellant was actively involved in the commission of the crime, and the quantity of pseudoephedrine he possessed had the potential to produce a significant amount of methamphetamine. The Court also considered that the trial judge's sentence was within the available range and not clearly excessive.

The appeal was ultimately dismissed, and the sentence of two and a half years imprisonment was upheld.

Orders