| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA544/2023 [2024] NZCA 144 |
| BETWEEN | PETER AH TONG |
| AND | THE KING |
| Hearing: | 6 March 2024 |
Court: | Thomas, Whata and Cooke JJ |
Counsel: | K J Beaton KC and A J Greaves for Appellant |
Judgment: | 3 May 2024 at 10.30 am |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe sentence of seven years’ imprisonment is quashed and substituted with a sentence of six years’ imprisonment.
____________________________________________________________________
REASONS OF THE COURT
(Given by Cooke J)
Mr Peter Ah Tong pleaded guilty to, and was convicted of, importing methamphetamine,[1] possession of MDMA for supply,[2] and possession of dimethylpentylone.[3] He was sentenced to seven years’ imprisonment by Judge T J Gilbert, in the District Court at Christchurch.[4] Mr Ah Tong appeals against his sentence.
Relevant facts
[1]Misuse of Drugs Act 1975, s 6(1)(a). Maximum penalty of life imprisonment: s 6(2)(a).
[2]Section 6(1)(f). Maximum penalty of 14 years’ imprisonment: s 6(2)(b).
[3]Section 7(1)(a). Maximum penalty of three months’ imprisonment and/or a $500 fine: s 7(2)(b).
[4]R v Ah Tong [2023] NZDC 19252 [judgment under appeal].
Mr Ah Tong lived in a flat in Christchurch. Between 9 May and 15 June 2022, he imported four packages containing a total of 2.092 kilograms of methamphetamine. Three of these packages were intercepted by New Zealand Customs Service | Te Mana Ārai o Aotearoa and one of these packages successfully arrived at Mr Ah Tong’s partner’s flat, an address Mr Ah Tong regularly frequented. All of the packages were addressed to fictitious people. On 13 May 2022, Mr Ah Tong had also discussed in his text messages a “kilo” arriving from London, that he had “a massive amount of customers”, and that he had already sold everything.
On 14 June 2022, search warrants were executed at Mr Ah Tong’s flat and his partner’s flat. At this time, Mr Ah Tong was temporarily living at his partner’s flat. Police found 79.2 grams of MDMA (ecstasy), 15 pink pills containing the ecstasy analogue dimethylpentylone (a class C controlled drug), digital scales, small plastic bags, and $5,140 in cash.
Decision under appeal
It was accepted by both counsel that in applying the bands in Zhang v R, the importation of just under 2.1 kilograms of methamphetamine placed Mr Ah Tong’s offending at the bottom of band five.[5] The Judge determined the importation was pre‑meditated but not sophisticated offending.[6] The Judge adopted a starting point of 11 years’ imprisonment for that offending.[7] He considered this reflected the scale of the offending and that Mr Ah Tong’s role was in the “significant” category.[8] In relation to the remaining offences, the Judge uplifted the starting point by one year. This resulted in a starting point of 12 years’ imprisonment.[9]
[5]At [21] and [26], citing Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[6]Judgment under appeal, above n 4, at [30].
[7]At [33].
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- AGLC
- Tong v The King [2024] NZCA 144
- Case
- [2024] NZCA 144
- Decision Date
CaseChat Overview and Summary
The Court of Appeal found that the starting point was appropriately set at the bottom of band five of Zhang v R, given the scale of the methamphetamine importation. The Court also held that the 20 per cent discount for personal mitigating factors was adequate, as it properly accounted for Mr Ah Tong’s lifelong addiction issues and deprived upbringing. However, the Court determined that the Judge had erred in not granting a further discount for the implications of Mr Ah Tong’s imprisonment on his 11-year-old daughter. The Court found that the significant adverse implications for the child warranted a 10 per cent discount, as established in Philip v R and Sweeney v R. The Court concluded that the sentence was manifestly excessive without this additional discount.
Consequently, the appeal was allowed, and the sentence was reduced from seven years’ imprisonment to six years’ imprisonment. This reduction materially affects both the end sentence and the period before Mr Ah Tong can be considered for parole.
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