Wan v The King - [2024] NZCA 143

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA560/2023
[2024] NZCA 143

BETWEEN	KA YIP WAN Applicant
AND	THE KING Respondent

Court:	Wylie, Mander and Jagose JJ
Counsel:	H G de Groot for Applicant S R Lamb for Respondent
Judgment: (On the papers)	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…

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 The King

Details

AGLC: Wan v The King [2024] NZCA 143
Case: [2024] NZCA 143
Decision Date: 1 May 2024 at 12 pm

CaseChat Overview and Summary

Ka Yip Wan has applied for an extension of time to appeal against a sentence imposed by 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. Mr Wan seeks to appeal the imposition of the MPI only. Mr Wan pleaded guilty to charges of importing and possessing methamphetamine. He now seeks an extension of time to appeal the imposition of the MPI only, some six years and four months after the date of his sentence.

The legal issues the court had to decide were whether the reasons for delay were sufficient to justify granting an extension and whether the merits of the proposed appeal were strong enough to warrant reconsideration of the sentence after such a long passage of time. The Court may extend the time allowed for filing a notice of appeal against sentence. In determining whether to grant an extension, the touchstone is the interests of justice in the particular case, balancing the general interest in finality of decisions against the particular interest claimed by the applicant. The issue commonly resolves to the reasons for the delay and the merits of the appeal.

Mr Wan’s reasons for delay were insufficient to justify granting an extension. He was told of his appeal rights within the period for their exercise. Even allowing for his immediate confusion and uncertainty after the 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. The merits of Mr Wan’s appeal were not strong. The sentencing Judge had not imposed the MPI as a matter of routine or in a mechanistic way but had considered Mr Wan’s parole eligibility inadequate for sentencing’s purposes, particularly because Mr Wan likely would be deported on release and would not return to New Zealand, meaning deterrence and accountability warranted imposition of a longer MPI than was offered by parole eligibility. Mr Wan’s reasons for delay and the merits of his appeal accordingly separately and together were insufficient justification to warrant reconsideration of his sentence after such a long passage of time. No special circumstance had been shown to justify any departure from the principle of finality; there was no special feature or features particular to the case that lead to the conclusion that in all the circumstances justice required that leave be given. The application for an extension of time was declined.

Orders