R v Yung - [2017] NZHC 895

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-004-5389 [2017] NZHC 895

THE QUEEN

v

CHUN KIT YUNG

Hearing: 5 May 2017

Appearances:

R McCoubrey for Crown
G Vear for Defendant

Judgment:

5 May 2017

SENTENCING REMARKS OF LANG J

R v YUNG [2017] NZHC 895 [5 May 2017]

[1] Mr Yung, you appear for sentence today after pleading guilty to a charge of importing methamphetamine into New Zealand. The maximum sentence for that offending is life imprisonment. You pleaded guilty after I gave you a sentence indication on 30 March 2017.1 You accepted the indication, and I therefore need to sentence you in accordance with it.

[2] Your offending arises out of the importation of 2.81 kilograms of methamphetamine in May 2016. The facts giving rise to the charge are set out in full in my sentence indication remarks. Those remarks will be attached to these sentencing notes and will form part of them. For that reason I do not propose to go through the facts of the offending again.

[3] In my sentencing indication remarks, I explained why I considered a starting point of 14 and a half years imprisonment was appropriate. I also said that I would provide a discount of two years 11 months to reflect guilty pleas entered shortly before your trial was due to begin. This produced an end sentence of 11 years seven months imprisonment before taking into account other mitigating factors.

[4] It is now necessary to consider the extent to which I should reduce the sentence further to reflect other mitigating factors.

[5] In the cases of serious drug offending, personal circumstances count for less than they do in other areas of the criminal law. Nevertheless, I am prepared to provide you with a further discount to reflect three factors. The first of these is that you have been of previously good character. I am not aware of any previous convictions either here or in China. You are, however, only 24 years of age so the credit to be given for this factor is not as great as it would be in the case of an older person. I would apply a discount of four months to reflect that factor.

[6] Another mitigating factor is that you will be obliged to spend several years in a New Zealand prison environment. This means that a prison sentence will be more difficult for you than it would be in the case of a prisoner born and raised in New
Zealand. You do not speak the English language and you are not familiar with New

1 R v Yung [2016] NZHC 608.

Zealand food, customs or culture. For that reason you will be somewhat isolated in the prison environment and will find it more difficult to serve your sentence. I make an allowance of seven months to reflect that factor.

[7] The pre-sentence report identifies that you have a problem with gambling. This led to the money issues that persuaded you to…

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 Yung

Details

AGLC: R v Yung [2017] NZHC 895
Case: [2017] NZHC 895
Decision Date: 5 May 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of The Queen v Chun Kit Yung involved an appeal against sentence. The defendant, Mr. Yung, had been convicted of importing methamphetamine into New Zealand and was subject to a maximum penalty of life imprisonment. The legal issues before the court were the determination of an appropriate starting point for the sentence, the consideration of mitigating factors, and the imposition of a minimum term of imprisonment.

The court found that a starting point of 14 and a half years imprisonment was appropriate, given the offender's role as a "catcher" in the importation process. The court also acknowledged a discount of two years and eleven months for the late guilty plea entered by Mr. Yung. The court further considered mitigating factors such as Mr. Yung's previously good character, his unfamiliarity with New Zealand's language and customs, and his efforts to address a gambling problem. However, the court found that Mr. Yung's lack of insight into the nature and effects of his offending precluded any credit for remorse.

Ultimately, the court decided to reduce the sentence by a total of one year and one month, resulting in a final sentence of ten years and six months imprisonment. The court also imposed a minimum term of four years and one month before Mr. Yung would be eligible to apply for parole. The decision reflected the court's emphasis on general deterrence in cases of serious drug offending, while also taking into account the limited role played by Mr. Yung in the importation process.

Orders