Wan v R

Case [2020] NZCA 328 4 August 2020

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA89/2019
[2020] NZCA 328

BETWEEN	GABRIEL WAN Appellant
AND	THE QUEEN Respondent

Hearing:	16 June 2020
Court:	Courtney, Brewer and Hinton JJ
Counsel:	M J Dyhrberg QC and H G de Groot for the Appellant MRL Davie for the Respondent
Judgment:	4 August 2020 at 11 am

JUDGMENT OF THE COURT

AThe application for an extension of time is granted.
BThe appeal is allowed.
C The sentence of 16 years and six months’ imprisonment is quashed, and a sentence of 13 years and six months’ imprisonment substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Hinton J)

In August 2017 a jury found Mr Wan guilty of one charge of importing methamphetamine.[1] On 29 September 2017 Fitzgerald J sentenced Mr Wan to 16 years and six months’ imprisonment.[2]
[1]Misuse of Drugs Act 1975, s 6(1)(a) and (2)(a).
[2]R v Wan [2017] NZHC 2376.
Mr Wan now appeals against sentence. The parties are agreed that this Court’s recent judgment in Zhang v R revising the approach to sentencing for methamphetamine-related offending applies to Mr Wan’s benefit, such that the sentence imposed was manifestly excessive. [3] The parties are however apart on the question of what sentence should now be substituted on appeal.
[3]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
Mr Wan’s notice of appeal was filed on 7 March 2019, some sixteen months or so out of time.[4] Absent any prejudice to or opposition from the Crown, and especially given the Crown’s acceptance that the appeal should be allowed, we grant leave to appeal out of time.

Offending

[4]Criminal Procedure Act 2011, s 248(2).

Customs officers intercepted a package at Auckland International Airport on 27 July 2016. That package had left Hong Kong on 9 July 2016. They found 19.1 kilograms of methamphetamine concealed among the kitchen supplies the parcel had been declared to contain.
Mr Wan was, as the Judge put it, the “catcher” for the package. He had arrived in New Zealand on 8 May 2016 with the expectation of profiting from receiving goods into New Zealand on behalf of a Hong Kong based group he called “the company”. A friend in Hong Kong had introduced him to “the company”. Mr Wan planned to use the payment he would receive to fund future studies.
When Mr Wan arrived at Auckland Airport, he told officials he intended to take a short holiday in New Zealand. He had pre-printed material of tourist activities and had been provided by “the company” with a return ticket for eight days later. In fact, he set about looking for accommodation and an office to which “the company” could send the package containing the methamphetamine. Evidence led at trial indicated Mr Wan had been at pains to ensure the office he rented was discreet, based on directions he had received from representatives of “the company”. He was in ongoing contact with these people via internet…

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 Wan v R

Details

AGLC: Wan v R [2020] NZCA 328
Case: [2020] NZCA 328
Decision Date: 4 August 2020 at 11 am

CaseChat Overview and Summary

Gabriel Wan was convicted of importing methamphetamine and sentenced to 16 years and six months' imprisonment. Wan appeals against the severity of his sentence. The appeal hinges on whether the sentence was manifestly excessive in light of the Court of Appeal's recent judgment in Zhang v R. The Court of Appeal finds that the sentence imposed was indeed manifestly excessive and should be adjusted in accordance with the Zhang guidelines.

The central issue before the Court was whether the sentence imposed on Wan was manifestly excessive, and if so, what sentence should replace it. The Court found that the sentence was excessive and substituted a sentence of 13 years and six months' imprisonment. In reaching this decision, the Court first assessed the appropriate starting point for Wan's sentence in light of the quantity of drugs involved and Wan's role in the importation. The Court found that a starting point of 15 years' imprisonment was appropriate. The Court then considered the appropriate discount for personal mitigating factors, ultimately allowing a discount of 10 per cent, or one year and six months, to arrive at an end sentence of 13 years and six months' imprisonment.

Orders