The Queen v Xie - [2008] NZCA 111

IN THE COURT OF APPEAL OF NEW ZEALAND
CA192/07
[2008] NZCA 111
THE QUEEN
v
JIAN ZHONG XIE
Hearing:23 April 2008

Court:William Young P, Chisholm and Ronald Young JJ
Counsel:B J Hart and A J Haskett for Appellant

M D Downs and S B Edwards for Crown

Judgment:5 May 2008 at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Chisholm J)
Introduction
[1]       After pleading guilty to 20 counts of importing pseudoephedrine, one count of possession of pseudoephedrine for supply, and one count of breaching bail, the appellant was sentenced by Asher J to eight years and three months imprisonment. He appeals against that sentence on three primary grounds: the starting point adopted by the Judge was too high; inadequate allowance was made for his guilty plea and previous good character; and the Judge erroneously treated him as the mastermind behind the importations.
[2]       In relation to the third ground, affidavits sworn by the detective in charge of the file and the appellant are before the Court. Both the detective and the appellant were cross-examined. Counsel for the Crown and counsel for the appellant also placed affidavits before the Court, but they were not cross-examined. We will return to this evidence when we consider the third ground of appeal.
Background
[3]       Interception of a package containing a large number of blank credit cards led to the execution of a search warrant at 24 Springleigh Avenue, Auckland, on 21 December 2005. That property was rented by the appellant and his wife. The search revealed 120,000 Contact NT pseudoephedrine capsules behind a locked door leading to the basement area. It was estimated by the police that those capsules could make methamphetamine having a street value of $4 – 6 million.
[4] Subsequently the police established that there had been 20 separate importations from China to fictitious consignees at various Auckland addresses. By virtue of various exhibits located at the appellant’s address plus other information, the police were able to link the appellant to each of these importations: see [25]. A total of 135,512 pseudoephedrine capsules were seized by Customs. It was calculated that the seized capsules could make methamphetamine having a street value of $6 – 9 million. The final importation involving 8,691 capsules occurred while the appellant was on bail.
[5]       Taking into account both the capsules located at the appellant’s address and those seized by Customs, there was a total of 255,512 pseudoephedrine capsules weighing 22.9 kg. Those capsules were capable of making methamphetamine with a street value of $10 – 15 million.
[6]       The appellant, who is 37 years of age, was born and raised in China. He came to New Zealand with his wife in 2002. Their two children remained in China with the appellant’s mother. After the appellant’s arrest and before his sentencing, the appellant’s wife was permitted to return to China.
Sentencing in the High Court
[7]       Although Asher J noted that there was no tariff case…

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 The Queen v Xie

Details

AGLC: The Queen v Xie [2008] NZCA 111
Case: [2008] NZCA 111
Decision Date: 5 May 2008

CaseChat Overview and Summary

In The Queen v Xie, the appellant, Jian Zhong Xie, appealed against his sentence for drug importation and possession charges. The High Court had sentenced him to eight years and three months imprisonment, which Xie argued was excessive. The appeal was heard by the Court of Appeal of New Zealand, comprising William Young P, Chisholm, and Ronald Young JJ. The key issues were whether the starting point for the sentence was too high, if there was adequate allowance for Xie's guilty plea and previous good character, and if he was accurately categorised as the mastermind behind the importations.

The Court found that the starting point of 10 years imprisonment was appropriate, considering the significant quantity of pseudoephedrine involved and the number of separate importations. The Court dismissed Xie's claim that his role in the importations was not accurately assessed, finding that he was indeed the mastermind behind the operation. Furthermore, the Court held that the discount for Xie's guilty plea and previous good character was adequate. In light of these findings, the appeal was dismissed, and Xie's sentence was upheld.

The Court of Appeal's decision in this case reinforces the importance of considering the quantity of drugs involved, the number of separate importations, and the offender's role in determining an appropriate sentence for drug-related offences. Additionally, the Court highlighted the need for accurate categorisation of the offender's involvement in the criminal activity and the appropriate assessment of mitigating factors such as a guilty plea and previous good character.

Orders