R v Yu - [2020] NZHC 2661

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-004-1873

[2020] NZHC 2661

THE QUEEN

v

CHIU TAN YU

Hearing: 9 October 2020

Appearances:

D B Dow for the Crown

D S Niven for the defendant

Date of sentence:

9 October 2020

SENTENCING BY PALMER J

Counsel/Solicitors:
D S Niven, Barrister, Auckland
Meredith Connell, Crown Solicitor, Auckland

R v YU [2020] NZHC 2661 [9 October 2020]

Introduction

[1] I have said before, on too many occasions, that methamphetamine destroys lives and communities. Those dealing in methamphetamine cause, and profit from, human misery. That is why, in 2003, methamphetamine was reclassified as a class A drug in New Zealand. It “appeals to vulnerable populations, has a high physical and psychological dependence potential, and can lead to long-term physical and psychological effects”.1 It is one of the most dangerous of drugs, which is why the maximum sentence for importing methamphetamine into New Zealand is life imprisonment. Mr Yu Chiu Tan, aged 40, has pleaded guilty to one charge of importing methamphetamine. I convict him of that offence and I sentence him today.

What happened?

[2] On 11 January 2019, Mr Yu arrived in New Zealand with five others from Sydney on a three-month visitor visa as a citizen of Taiwan. On 17 January 2019, a container arrived in New Zealand from Long Beach, California with three electric six- seater golf carts. It was sent by an unknown person overseas. The consignees were a Ms Goddard and a Mr Lee though Mr Lee was not in New Zealand. Two 9 mm pistols were concealed in the golf carts. Each golf cart contained eight batteries modified to look like normal batteries. Each battery contained two plastic boxes, the larger of which concealed a vacuum-sealed plastic bag of methamphetamine.

[3] The total amount of methamphetamine concealed was 110 kilograms. The Crown estimates its value at $17.6 million, at a minimum, if sold wholesale by the kilo and estimates there being $136 million of societal harm that would have been caused by this methamphetamine. Customs removed the methamphetamine and replaced it with a substitute but only replaced one of the two boxes in each battery, not both.

[4] Between 31 January and 13 February 2019, Mr Yu paid fees owing on the consignment with money from a co-defendant. He inspected and photographed the golf carts. Mr Yu rented a property in Glendene, Auckland, which the importer told

1 Misuse of Drugs (Classification of Ephedrine and Pseudoephedrine) Order 2003: Report of the Health Committee (April 2003) at 3.

the freight company would be the address for delivery. On 14 February 2019, Mr Yu bought tools and buckets from Bunnings.

[5] On 15 February 2019, 15 minutes after the golf carts were delivered to the address he rented, Mr Yu arrived and removed the batteries from the carts, put them in his car and placed them into a storage unit his co-defendant had arranged. Between 19 and 21 February…

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 Yu

Details

AGLC: R v Yu [2020] NZHC 2661
Case: [2020] NZHC 2661
Decision Date: 9 October 2020

CaseChat Overview and Summary

The case of R v Yu involves the defendant, Mr Yu Chiu Tan, who pleaded guilty to importing 110 kilograms of methamphetamine into New Zealand. The significant nature of the drug trafficking and the high societal harm potential necessitated a stringent judicial response. The court was tasked with determining the appropriate sentence for this serious offence, taking into account the defendant's role, the quantity of the drug, and his culpability.

The legal issues the court had to address included establishing the appropriate starting point for sentencing based on the gravity of the offence and Mr Yu's role within the operation, adjusting the sentence for personal circumstances and the plea of guilty, and determining whether a minimum period of imprisonment should be imposed. The court considered several precedents and guidelines to ascertain the starting point within the sentencing band for such high quantities of methamphetamine. The court also evaluated mitigating factors such as Mr Yu's lack of previous convictions, his expression of remorse, and the impact of serving his sentence in a foreign country.

The court concluded that Mr Yu's role was significant but not leading, placing him at the lower end of significant roles within the established bands. The starting point was set at 22 years' imprisonment, adjusted by discounts for personal circumstances and the guilty plea, resulting in a total sentence of 15 and a half years' imprisonment. Considering the potential societal harm and the need for deterrence, the court imposed a minimum period of imprisonment of seven years. This decision ensures that Mr Yu serves a substantial portion of his sentence before being eligible for parole, effectively addressing the purposes of sentencing.

The final orders of the court included the destruction of all seized goods and equipment and a sentence of 15 and a half years' imprisonment with a mandatory minimum of seven years before parole eligibility.

Orders