Su v R

Case [2020] NZCA 128 30 April 2020

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA105/2019
[2020] NZCA 128

BETWEEN	XIANG SU Appellant
AND	THE QUEEN Respondent

Hearing:	26 February 2020
Court:	Miller, Dobson and Moore JJ
Counsel:	R J Hooker for Appellant JEL Carruthers for Respondent
Judgment:	30 April 2020 at 9.00am

JUDGMENT OF THE COURT

AApplication for extension of time to appeal granted.
BAppeal allowed.
CThe sentence of five years and 10 months imprisonment is quashed.
DA sentence of five years imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Mr Su was convicted after a jury trial on one count of possessing 233 g of methamphetamine for supply. He appeals his sentence of five years, 10 months imprisonment,[1] relying on this Court’s guideline judgment in Zhang v R.[2] He contends that his was a lesser role and he ought to receive a discount for addiction.

Extension of time

[1]R v Su [2017] NZHC 1147.

[2]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

Mr Su was sentenced by the trial Judge, Gordon J, on 30 May 2017. He did not take steps to appeal his sentence until 18 March 2019, when he filed what purported to be an application for leave to appeal. He was 408 working days late. He requires an extension of time to bring his appeal. This raises two questions. The first is whether Zhang, which was delivered on 21 October 2019, governs this case. The second is whether an extension is warranted on the facts.
In Zhang the Court held that the guidelines apply to sentences passed after 21 October 2019 regardless of when the offending took place. The Court adopted the traditional view that Zhang applies to sentences that had already been passed “if and only if two conditions are satisfied: (a) that an appeal against the sentence has been filed before the date the judgment is delivered; and (b) the application of the judgment would result in a more favourable outcome to the appellant”.[3]
[3]At [188].
Both parties contended that Zhang should apply here. As Mr Carruthers pointed out, it was not necessary for Mr Su to apply for leave to appeal. The procedurally correct course was to file a notice of appeal in which he sought an extension of time.[4] We accept that Mr Su’s application for leave is appropriately treated as a notice of appeal with a request for an extension of time. As Mr Hooker observed, some of the appeals decided in Zhang also required extensions of time and when holding that the new guidelines apply to ‘appeals filed’ before 21 October 2019 the Court did not distinguish those appeals that require an extension from those that do not. A literal approach is appropriate. The appeal was filed before 21 October 2019, and Zhang accordingly applies.
[4]Criminal Procedure Act 2011, s 248(1)(a) and (4)(a); and Court of Appeal (Criminal) Rules 2001, rr 11 and 12.
Mr Su belatedly…

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 Su v R

Details

AGLC: Su v R [2020] NZCA 128
Case: [2020] NZCA 128
Decision Date: 30 April 2020 at 9.00am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Xiang Su v The Queen saw the appellant, Mr Su, appealing his sentence of five years and 10 months imprisonment for possessing 233 g of methamphetamine for supply. He argued that his role in the operation was lesser and that he should receive a discount for addiction. The central legal issues revolved around whether the Court's guideline judgment in Zhang v R applied to this case and whether an extension of time was warranted given Mr Su's late appeal. The Court concluded that Zhang applied to this case as the appeal was filed before the judgment's delivery on 21 October 2019 and granted the extension of time since Mr Su provided a plausible explanation for his delay and there was no opposition from the Crown.

In assessing the appeal, the Court noted that Mr Su participated in a methamphetamine-dealing operation as a driver and storage facilitator. The Judge had found Mr Su's involvement to be relatively minor but did not make specific factual findings to support this conclusion. The Court found that Mr Su's role was more than that of a mere courier and storeman, as he was involved in preparing the methamphetamine for onward sale, but his role was still lesser compared to others. The Court adopted a starting point of five and a half years imprisonment, taking into account the quantity, role, and addiction factors. The Court did not accept a further discount for addiction, as there was insufficient evidence to show that it impaired Mr Su's rational decision to commit the offence. Ultimately, the appeal was allowed, and the sentence was quashed, substituting a sentence of five years imprisonment.

Orders