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Tong v The King

Tong v The King

Case [2024] NZCA 144 3 May 2024

Criminal Liability

Sentencing

Discretionary Discount for Personal Mitigating Factors

Impact on Dependent Child

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA544/2023
[2024] NZCA 144

BETWEEN	PETER AH TONG Appellant
AND	THE KING Respondent

Hearing:	6 March 2024
Court:	Thomas, Whata and Cooke JJ
Counsel:	K J Beaton KC and A J Greaves for Appellant S J Mallett and B W D Alexander for Respondent
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].

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 Tong v The King

Details

AGLC: Tong v The King [2024] NZCA 144
Case: [2024] NZCA 144
Decision Date: 3 May 2024 at 10.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Peter Ah Tong against his sentence for importing methamphetamine, possession of MDMA for supply, and possession of dimethylpentylone. The District Court at Christchurch had sentenced him to seven years’ imprisonment, which he appealed as manifestly excessive. The central issues were whether the starting point for sentencing was too high, if the discount for personal mitigating factors was insufficient, and if the implications of his imprisonment on his dependent daughter warranted an additional discount.

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.

Orders