Tang v R

Case [2021] NZCA 266 23 June 2021

Type to search within this case.

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA657/2020
[2021] NZCA 266

BETWEEN	XIAO YAN TANG Appellant
AND	THE QUEEN Respondent

Hearing:	12 May 2021
Court:	Clifford, Simon France and Edwards JJ
Counsel:	H G de Groot and T W R Lynskey for Appellant M H Cooke for Respondent
Judgment:	23 June 2021 at 11 am

JUDGMENT OF THE COURT

AThe application for leave to admit the report of Ms Howarth dated 15 March 2021 is granted.
BThe appeal against sentence is allowed. It is substituted for a sentence of 12 years’ imprisonment.
C The District Court’s order imposing the MPI is quashed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Edwards J)

Mr Tang pleaded guilty to 41 charges[1] of supplying a total of 1.6 kg of methamphetamine;[2] four charges of possessing a total of 161 g of methamphetamine for supply;[3] and one charge each of supplying 500 g of ephedrine,[4] possessing methamphetamine[5] and possessing utensils.[6] The latter two charges were committed while on bail.
[1]There are differences as to the number of charges in the summary of facts, Crown Charge Notice and sentencing notes. We have relied on the summary of facts to which Mr Tang pleaded guilty. Counsel for Mr Tang accepts that any differences are immaterial.
[2]Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a).
[3]Section 6(1)(f) and (2)(a).
[4]Section 6(1)(c) and (2)(b).
[5]Section 7(1)(a) and (2).
[6]Section 13(1)(a) and (3).
Judge Dawson, at the District Court at Auckland, imposed a sentence of 13 years and seven months’ imprisonment with a 50 per cent minimum period of imprisonment on 18 May 2017 for all but the offences committed while on bail. Concurrent sentences of one month’s imprisonment were imposed for those two offences.[7]
[7]R v Tang [2017] NZDC 10379.
Mr Tang was granted leave to appeal his sentence out of time. He appeals his sentence as-of right on the following grounds:[8]
(a)the starting point of 16 years’ imprisonment was too high;
(b)a two year uplift for the ephedrine charge was excessive;
(c)a higher discount for personal factors including addiction, good character, youth, remorse and the burden of isolation was warranted; and
(d)the MPI was unnecessary.

The offending

[8]Criminal Procedure Act 2011, s 244.

In early 2015, police began an investigation into the drug dealing activities of an Auckland based group, including Mr Tang. The investigation included the use of interception, visual surveillance, and tracking devices in relation to Mr Tang and another individual.
The supply of methamphetamine occurred on 41 occasions over a three-month period from 12 June to 18 September 2015. The total supplied was 1.6 kg. The offending involved Mr Tang obtaining methamphetamine and supplying it to a co‑offender who on-supplied it to his own customers. Another co-offender would both supply Mr Tang with methamphetamine and receive methamphetamine from him.
Mr Tang was generally supplying half, one, two, or three ounces (14, 28, 56, and 84 grams respectively) at a time. He charged between $10,000 and $15,000…

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 Tang v R

Details

AGLC: Tang v R [2021] NZCA 266
Case: [2021] NZCA 266
Decision Date: 23 June 2021 at 11 am

CaseChat Overview and Summary

Xiao Yan Tang appeals against his sentence of 13 years and seven months' imprisonment, imposed by the District Court, for his involvement in the supply of a significant quantity of methamphetamine. Tang pleaded guilty to 41 charges of supplying a total of 1.6 kg of methamphetamine; four charges of possessing a total of 161 g of methamphetamine for supply; and one charge each of supplying 500 g of ephedrine, possessing methamphetamine, and possessing utensils. The appeal focuses on the starting point of 16 years' imprisonment, the two-year uplift for the ephedrine charge, the discount for personal factors, and the imposition of a minimum period of imprisonment (MPI). The Crown accepts that the starting point of 16 years' imprisonment was at the upper end, but not outside, the available range. The court agrees with Tang's counsel that the two-year uplift for the ephedrine charge was excessive and that an uplift of no more than six months was appropriate for this charge. Regarding personal circumstances, the court finds that while the Judge did not apply a significant discount for personal mitigating factors, the overall discount applied by the Judge results in a slightly higher discount (12.12 per cent) than that applied by the Judge. In light of this, the court reduces the sentence to 12 years' imprisonment. The court finds that the imposition of an MPI was an error as there were several features of Tang's case which suggested that an MPI was not necessary. The appeal against sentence is allowed and is substituted for a sentence of 12 years' imprisonment. The District Court's order imposing the MPI is quashed.

Orders