Wan v The King
[2024] NZCA 143
•1 May 2024 at 12 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA560/2023 [2024] NZCA 143 |
| BETWEEN | KA YIP WAN |
| AND | THE KING |
| Court: | Wylie, Mander and Jagose JJ |
Counsel: | H G de Groot for Applicant |
Judgment: | 1 May 2024 at 12 pm |
JUDGMENT OF THE COURT
The application for an extension of time is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Jagose J)
The applicant, Ka Yip Wan, seeks an extension of time to appeal against the judgment of Lang J in the High Court at Whangārei on 8 June 2017, in which the Judge imposed a sentence of 23 years’ imprisonment with a minimum period of imprisonment (MPI) of nine years and six months.[1] Mr Wan seeks to appeal the imposition of the minimum period of imprisonment only. Mr Wan had pleaded guilty to and charges of importing[2] and possessing methamphetamine.[3]
Background
[1]R v Wan [2017] NZHC 1255 [sentencing notes].
[2]Misuse of Drugs Act 1975, s 6(1)(a) and 6(2)(a). Maximum penalty of life imprisonment.
[3]Section 6(1)(f) and 6(2)(a). Maximum penalty of life imprisonment.
As a person convicted of an offence, Mr Wan may appeal against the sentence imposed for that offence,[4] by filing his notice of appeal “within 20 working days after the date of the sentence appealed against”.[5] His 25 September 2023 application for an extension of time to file his notice of appeal is brought some six years and four months after the date of his sentence.
Approach to extensions of time
[4]Criminal Procedure Act 2011, s 244(1).
[5]Section 248(2).
This Court may extend the time allowed for filing a notice of appeal against sentence.[6] In determining whether to grant an extension, “[t]he touchstone is the interests of justice in the particular case”,[7] balancing the general interest in finality of decisions against the particular interest claimed by the applicant.[8] The issue commonly resolves to the reasons for the delay and the merits of the appeal.[9]
Submissions on application
[6]Section 248(4).
[7]R v Knight [1998] 1 NZLR 583 (CA) at 587, referring to the predecessor of s 248(4) of the Criminal Procedure Act, s 388(2) of the Crimes Act 1961.
[8]Kriel v R [2024] NZCA 45 at [79]–[86], citing R v Knight, above n 6, and R v Lee [2006] 3 NZLR 42 (CA).
[9]Kriel, above n 8, at [87], citing Mikus v R [2011] NZCA 298 at [26], which cited R v Slavich [2008] NZCA 116 at [14].
For Mr Wan, Mr de Groot argues sentencing courts’ then “prevailing approach” inevitably or invariably to impose minimum periods of imprisonment for serious drug offending, coupled with Mr Wan’s “limited command of English and distress at the sentencing outcome”, meant he could not have made an informed decision about the exercise of his appeal rights at the time of sentencing. Should the application for an extension of time be granted, Mr de Groot would argue on appeal the sentencing Judge overstated Mr Wan’s role in the offending, improperly relied on disputed facts for sentencing and did not identify the minimum period’s utility in Mr Wan’s case.
The Crown opposes the application, arguing the Judge individually assessed Mr Wan’s circumstances to impose the impugned minimum period of imprisonment, meaning the merits of the appeal are not strong and the substantial delay is unjustified.
Discussion
Reasons for delay
Mr Wan has filed an affirmation to explain his delay in appealing his sentence.
Mr Wan complains he was not adequately supported for sentencing by his counsel and interpreter and the pre-sentence report writer. Delays and his then-limited English language capability left him feeling “helpless and frustrated”. He contests his role in the offending. He acknowledges his counsel spoke to him after sentence was delivered on 8 June 2017 — including asking if he wanted to appeal against his sentence, while observing “it was good given the quantity of drugs” — but says he was then “upset and frustrated” and “very emotional because [he] had been given such a long sentence”. Then in custody at the Northland Region Corrections Facility, he had limited contact with counsel but was moved to Hawke’s Bay Regional Prison on 4 July 2017. He acknowledges also counsel’s 7 July 2017 letter, but does not recall receiving it. He says his English language capability then was assessed as basic.
In 2020, he became aware of another prisoner’s successful appeal against a minimum period of imprisonment and began making enquiries. He later became aware of another two prisoners’ successful appeals against minimum periods of imprisonment.[10] He says “[w]hen I hear of some of the circumstances, I feel I might fit into those criteria now”, and sought their counsel’s assistance for which he also sought legal aid on 4 April 2023. He says he has “more confidence now” and the support of fellow prisoners and prison officers and administrators to pursue his appeal. His affirmation continues to explain his background, travel to New Zealand, offending, experience in prison and wish to resume life in his Hong Kong community.
[10]Mr Wan says he became aware of those two prisoners’ successful appeals in 2022. If those are the appeals referred to in this Court’s judgment of Hura v R [2023] NZCA 7 that judgment issued on 10 February 2023.
In our assessment, Mr Wan’s reasons for the delay are too insubstantial in themselves to justify granting an extension. He was told — informally and, we infer from his reference to counsel’s letter, formally — of his appeal rights within the period for their exercise. Even allowing for his immediate confusion and uncertainty after 2017 sentence, his 2020 knowledge another prisoner was successful in appealing against imposition of a minimum period of imprisonment does not explain his delay in pursuing them. Even then, he appears not to have taken any material step until 2023. And there is no suggestion counsel did not apprise him at the outset of his right to appeal against such imposition in his case.
Merits of the proposed appeal
We therefore turn to consider the merits of Mr Wan’s appeal.
This Court has granted extensions of time of comparable duration to applicants similarly seeking to appeal against minimum periods of imprisonment imposed in connection to their convictions also for very substantial (unrelated) drug offending.[11] There, this Court accepted imposition of minimum periods of imprisonment “must be a conclusion reached on the facts of a particular case”,[12] and “must not be imposed as a matter of routine or in a mechanistic way”.[13] In those cases, the Court found the particular minimum periods of imprisonment for challenge were imposed as the almost invariable or inevitable consequence of serious drug offending,[14] as a result of following this Court’s earlier guidance.[15]
[11]See for example Rogers v R [2022] NZCA 39; and Hura v R, above n 10.
[12]Rogers v R, above n 11, at [34].
[13]Hura v R, above n 10, at [29], quoting Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [169] per Kós P and French J.
[14]Rogers v R, above n 11, at [33]; and Hura v R, above n 10, at [58] and [68].
[15]As stated in R v Wong [2009] NZCA 332 at [21]: “In the decisions of R v Anslow CA182/05 18 November 2005 and R v Aram [2007] NZCA 328, this Court confirmed that in cases of very serious drug offending, while its discretion will never be fettered, it will be almost invariable that the criteria for an order under s 86, particularly the need for deterrence and denunciation, will be made out”.
Such was not the approach taken by the Judge in sentencing Mr Wan. The Judge explained:[16]
[41] In any case of this seriousness the Court must give consideration to the imposition of a minimum term of imprisonment. If a minimum term was not imposed in your case, you would be eligible for parole after serving less than eight years of your sentence. I consider that would be inadequate to recognise the sentencing principles of deterrence, denunciation and the need to hold the offender accountable.
[42] The issue of general deterrence is of particular importance in this case. I consider there is little likelihood that you will return to New Zealand to offend again in a similar way following your release and deportation. Nevertheless, the message needs to go out that those like you who are prepared to come to New Zealand will not be deported after serving just one-third of your sentence. Issues of deterrence and the need to hold offenders accountable are to the forefront of this sentencing exercise, as is the need to denounce serious offending.
The Judge did not refer at all to this Court’s earlier guidance.
[16]Sentencing notes, above n 1 (footnote omitted).
It is not open to Mr Wan simply to coat-tail on any perception of inevitability of a minimum period of imprisonment’s imposition in sentencing for serious drug offending to reopen his sentence.[17] Despite whatever the orthodoxy of the time may appear to have been, in contrast to Rogers and Hura it cannot be said here that the Judge treated the imposition of a minimum period of imprisonment on Mr Wan as an inevitability.
[17]See Kriel v R, above n 8, at [82]–[83], citing R v Knight, above n 7, at 588–589 and R v Jogee [2016] UKSC 8, [2017] AC 387 at [100].
Instead, the Judge considered Mr Wan’s parole eligibility otherwise was inadequate for sentencing’s purposes, particularly because Mr Wan likely then would be deported on release and would not return to New Zealand, meaning deterrence and accountability warranted imposition of a longer minimum period of imprisonment than was offered by parole eligibility. Those are the facts of Mr Wan’s particular case. The Judge’s consideration of them is for present purposes his necessary “reasoned analysis … both as regards the imposition of a minimum period of imprisonment and its length”.[18] The Judge had not “simply recited” the statutory provision.
Conclusion
[18]Zhang v R, above n 13 at [169] per Kós P and French J.
Mr Wan’s reasons for delay and the merits of his appeal accordingly separately and together are insufficient justification to warrant reconsideration of his sentence after such a long passage of time. No “special circumstance” has been shown to justify any departure from the principle of finality; there is no “special feature or features particular to the case that lead to the conclusion that in all the circumstances justice requires that leave be given”.[19] We will not extend time for filing Mr Wan’s notice of appeal.
Result
[19]See R v Knight, above n 7, at 589.
The application for an extension of time is declined.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
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