Sun v Police - [2015] NZHC 414

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000428 [2015] NZHC 414

BETWEEN
TAK YIU SUN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 9 March 2015

Appearances:

A G Speed for Appellant
Z R Hamill for Respondent

Judgment:

10 March 2015

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 10 March 2015 at 12.00 noon
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

SUN v NZ POLICE [2015] NZHC 414 [10 March 2015]

Introduction

[1] Tak Yiu Sun pleaded guilty to one charge of possession of methamphetamine for supply, one of equipment for the manufacture of methamphetamine and one of possession of precursor substances. Judge Treston sentenced him to an effective sentence of two years 10 months’ imprisonment.1 Mr Sun appeals the sentence on the grounds that the starting point taken was too high and the discounts given for time on EM bail, efforts at rehabilitation, remorse and good character were not high enough.

Starting point

[2] The offending arose from the execution of search warrants on two addresses occupied by Mr Sun. At one address the Police found a plastic bag containing two sets of scales, a bowl and scoop and some 50 sachets that had been used to package methamphetamine. All of these items contained methamphetamine residue. At the same house the Police found 13 grams of methamphetamine in a plastic bag and a separate bag containing 1.5 grams of methamphetamine. They also found $4,850 in cash. A further $2,000 in cash and another set of scales were found in Mr Sun’s car. At the second address the Police found precursor substances and equipment, namely hydrochloric acid, caustic soda, an element, a steam distiller and snap-lock bags.

[3] There was no dispute that the offending fell within band 2 of R v Fatu,2 attracting a starting point of between three and nine years’ imprisonment. Although not entirely clear, when read in their entirety the Judge’s notes suggest that he took a starting point of three-and-a-half years on the possession charge and imposed an uplift of six months to reflect the totality of the offending.

[4] Mr Speed accepted that a starting point of three-and-a-half years was within the available range. His concern was with the extent of the uplift, imposed to reflect the totality of the offending, which the Judge treated as having a commercial flavour. Mr Speed submitted that there was insufficient evidence from which to conclude that
Mr Sun had the intention to manufacture methamphetamine. Rather, his possession

1 R v Sun DC Auckland CRI-2014-092-003078, 1 December 2014.
2 R v Fatu [2006] 2 NZLR 72 (CA).

of the equipment and precursor chemicals was consistent with his claim that he was holding them for others. None of the precursor substances were essential ingredients that were difficult to obtain but, rather, the more common substances that were readily available.

[5] I do not think that there can be any criticism of the Judge’s approach on…

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 Sun v Police

Details

AGLC: Sun v Police [2015] NZHC 414
Case: [2015] NZHC 414
Decision Date: 10 March 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, Tak Yiu Sun appealed his sentence against the New Zealand Police. Mr Sun was convicted of possession of methamphetamine for supply, equipment for the manufacture of methamphetamine, and possession of precursor substances. The court found that the starting point for sentencing was within the appropriate range, but the appellant argued that the discounts for various mitigating factors were insufficient. Specifically, Mr Sun contended that the discounts for his guilty plea, time on electronic monitoring bail, efforts at rehabilitation, and remorse were inadequate.

The court examined the evidence presented, including the significant quantities of drugs and drug paraphernalia found, and agreed with the starting point and uplift for the totality of the offending. However, the court found that the Judge had erred in not sufficiently recognising the appellant's efforts at rehabilitation, which warranted a greater discount. The court held that a 15 per cent discount for rehabilitation efforts would have been appropriate, bringing the total discount to 42 per cent. This resulted in a revised sentence of two years and four months.

The court quashed the original sentence and substituted it with a sentence of two years and four months, reflecting the appropriate discount for rehabilitation efforts. The court emphasised the importance of recognising genuine efforts at rehabilitation in drug sentencing, as it benefits the community by reducing the risk of re-offending. The revised sentence was considered appropriate, given the totality of the circumstances and the appellant's demonstrated commitment to rehabilitation.

Orders