CThe sentence imposed on the respondent in the High Court is varied by the addition of an order under s 86 of the Sentencing Act 2002 that the respondent serve a minimum period of imprisonment of four years in relation to the sentence.

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REASONS OF THE COURT

(Given by Stevens J)

Introduction

The Solicitor-General seeks leave to appeal the sentence imposed upon the respondent, Chien-Chuan Huang, by Rodney Hansen J in the High Court.[1] Mr Huang pleaded guilty to one count of importing into New Zealand a Class A controlled drug (methamphetamine), contrary to s 6(1)(a) of the Misuse of Drugs Act 1975. He was sentenced to nine years and four months’ imprisonment but the Judge did not order that a minimum period of imprisonment (MPI) be served.
[1]R v Huang HC Auckland CRI-2010-092-14540, 9 November 2010.
There is no challenge to the length of the respondent’s sentence. However, the Solicitor-General submits that an MPI ought to have been ordered under s 86 of the Sentencing Act 2002, having regard to the size of the importation, the perniciousness of the controlled drug concerned and the need for emphatic denunciation and deterrence for this type of offending. Specifically, the Solicitor-General contends that the Judge erred in distinguishing the circumstances of two of Mr Huang’s co-offenders, each of whom were sentenced to imprisonment and ordered to serve an MPI. The sole issue on appeal is whether an MPI ought to have been ordered.

Factual background

The respondent is from Taiwan. On 16 May 2010 he arrived in New Zealand from Hong Kong as part of an organised tour group, consisting of five other Taiwanese residents. In reality, the group was a front for the illegal importation of what was a very significant commercial amount of methamphetamine. The respondent was one of a number of couriers within the group. He told police that he was to be paid approximately NZ$8,900.00 for his part in the importation. He claimed that his involvement was motivated by his financial struggles.
The attempt to import the methamphetamine in New Zealand was thwarted when one of the members of the group was subjected to a routine search by customs officers upon arrival at the Auckland International Airport. In the luggage the officers discovered methamphetamine. The luggage of the other tour group members was then searched and the respondent was found to be carrying 1.3 kilograms of methamphetamine. Collectively, the group was in possession of a total of 8.1 kilograms.
When spoken to by police, the respondent admitted to importing drugs into New Zealand. Two of the respondent’s co-offenders, Che‑Yu Jian and Min-Kuan…

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 Solicitor-General v Huang

Details

AGLC: Solicitor-General v Huang [2011] NZCA 436
Case: [2011] NZCA 436
Decision Date: 2 September 2011

CaseChat Overview and Summary

The Court of Appeal of New Zealand was asked to decide whether a minimum period of imprisonment (MPI) should have been ordered for Chien-Chuan Huang, who was convicted of importing a Class A controlled drug into New Zealand. The Solicitor-General appealed the decision of Rodney Hansen J in the High Court, who did not order an MPI for the respondent. The appeal hinged on whether the sentencing judge had erred in not imposing an MPI, considering the size of the drug importation, the perniciousness of the drug, and the need for emphatic denunciation and deterrence.

The court held that the sentencing judge had indeed erred in not imposing an MPI. The court noted that serious drug offences typically warrant an MPI unless there are compelling reasons otherwise. The court was particularly concerned with the large scale of the drug importation and the need for general deterrence. The fact that the respondent had not been involved in a previous importation was adequately reflected in the higher sentence imposed on his co-offenders. The court also emphasized the importance of ensuring that New Zealand is not viewed as a "soft touch" for the transit of illicit drugs.

The court concluded that the need for general deterrence and denunciation in this case was significant and that the usual MPI of one-third of the sentence under the Parole Act 2002 would be insufficient. Therefore, the appeal was allowed, and the sentence was varied to include an MPI of four years.

Orders