Wang v Police - [2017] NZHC 787

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-000064 [2017] NZHC 787

BETWEEN
HUI WANG

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 26 April 2017

Counsel:

OE Harold for Appellant
GA Campbell for Respondent

Judgment:

27 April 2017

JUDGMENT OF DOWNS J

This judgment was delivered by me on Thursday, 27 April 2017 at 1 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
OE Harold, Auckland.
Meredith Connell, Auckland.

WANG v POLICE [2017] NZHC 787 [27 April 2017]

The appeal

[1] This is an appeal against sentence. On 27 February 2017 Judge Johns sentenced the appellant to a term of two years and nine months’ imprisonment in relation to a charge of possessing methamphetamine for the purpose of supply and another of supplying that drug.1

Background

[2] The facts are straightforward. In September 2016 Police commenced an investigation into methamphetamine distribution. On 8 November they went to a Swanson address to execute a search warrant. While there, Mr Wang arrived in a car. He was stopped in the driveway. Police said they would search for drugs under the Search and Surveillance Act 2012. Mr Wang admitted he had two ounces of methamphetamine in the car which he intended to deliver. Police searched it. They found approximately 60 grams of methamphetamine in the driver’s door panel. Following arrest, Mr Wang said this was the second time he had been to the address to supply methamphetamine. He told the Police he met his supplier by chance at a hardware store. While brief, the appellant’s Police statement is suggestive of opportunistic offending in consequence of a serendipitous meeting with a stranger. Mr Wang said he received $500 for each delivery.

[3] The appellant told the pre-sentence writer he was asked to supply the drugs

by his “employer”. What he meant by that remains unclear.

[4] Mr Wang entered guilty pleas on 28 November 2016.

[5] With reference to the Court of Appeal’s guideline judgment of R v Fatu,2

Judge Johns adopted a starting point of four years’ imprisonment. Her Honour discounted the sentence by five percent for prior good character and then 25 percent for guilty plea-entry. The Judge then rounded up the discount (from 14 and a half months) to 15 months, giving rise to the appealed sentence of two years and nine
months’ imprisonment.

1 R v Wang [2017] NZDC 3961.
2 R v Fatu [2006] 2 NZLR 72, (2005) 22 CRNZ 410.

The appellant’s case

[6] There are three points. First, the Judge was wrong to infer Mr Wang was a close associate of those higher up the supply chain. Second, the starting point was too high. Third, further discount should have been given for Mr Wang’s personal circumstances: his building company will not survive his incarceration and he has family to care for.

[7] The first two points allege the starting point was too high. The third alleges inadequate discount.

Was the starting point too high?

[8] Here, it is worth…

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 Wang v Police

Details

AGLC: Wang v Police [2017] NZHC 787
Case: [2017] NZHC 787
Decision Date: 27 April 2017

CaseChat Overview and Summary

This appeal arises from a sentence of imprisonment imposed on Hui Wang for drug supply and possession. Wang was arrested in November 2016 after police found 60 grams of methamphetamine in his car. He admitted to possessing methamphetamine for the purpose of supply and to supplying that drug on two occasions. Wang was sentenced to a term of two years and nine months' imprisonment. Wang appealed on the basis that the starting point of four years was too high and that the discount applied for his guilty plea was too low.

The appeal centred on two main issues: first, whether the starting point of four years was appropriate; and second, whether the discount applied for Wang's guilty plea was sufficient. In relation to the starting point, Wang argued that the trial judge erred in finding that he had a close association with those higher up the supply chain. The trial judge had observed that Wang's explanation for how he became involved in the offending was inherently implausible. The Court held that the trial judge was entitled to reject Wang's explanation and that the starting point was within the range mandated by relevant authority.

In relation to the discount, Wang argued that the trial judge should have applied a greater discount for his personal circumstances, including the fact that his building company would not survive his incarceration and that he had a family to care for. The Court held that personal circumstances are less important when drug dealing is in issue, and that the trial judge's discount of 6.25 percent was appropriate. The appeal was dismissed.

The Court held that the sentence was within the range of appropriate sentences for the offending and that the appeal was accordingly dismissed.

Orders