Wei v R - [2012] NZCA 54

IN THE COURT OF APPEAL OF NEW ZEALAND

CA129/2011
[2012] NZCA 54

BETWEEN KUN WEI
Appellant

AND THE QUEEN
Respondent

Hearing: 15 February 2012

Court: Stevens, Ronald Young and Andrews JJ

Counsel: S D Cassidy for Appellant
M J Lillico for Respondent

Judgment: 2 March 2012 at 4.00 pm

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT
(Given by Andrews J)

Introduction

After a trial before Courtney J and a jury the appellant, Mr Wei, was found guilty on three counts (counts 3, 5 and 6 in the indictment) of supplying the class A controlled drug methamphetamine. He was acquitted on three further counts of supplying methamphetamine. He was sentenced to imprisonment for ten years and six months, and ordered to serve a minimum period of imprisonment of 50 per cent of the sentence.[1]
[1] R v Wei HC Auckland CRI-2009-404-251, 18 February 2011 [Wei sentencing judgment].
The appellant has appealed against conviction on the grounds that the jury’s verdict on count five was unreasonable having regard to all the evidence.[2] He has appealed against the sentence on the grounds that it is manifestly excessive. The appellant also contends that the Judge should not have imposed a minimum period of imprisonment.

Background facts

[2]Although the appeal on this ground was put on the basis of the verdict being against the weight of evidence, we have reformulated the question to conform with s 385(1)(a) of the Crimes Act 1961: R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [5] and [12].

The charges against the appellant arose out of police operations which involved surveillance and the interception of communications between a group of people suspected of dealing in methamphetamine. The Crown case at the appellant’s trial was that the group represented part of a supply chain for distributing methamphetamine, and that the appellant was near the top of the chain. The Crown put to the jury that the appellant obtained large quantities of methamphetamine and then supplied the drug to a Ms Nguyen. Ms Nguyen in turn supplied methamphetamine to Mr Crichton, who on-supplied it to dealers, who then supplied it at street level.
Ms Nguyen pleaded guilty to seven counts of supplying methamphetamine to Mr Crichton. She was sentenced to six years imprisonment.[3] Ms Nguyen was called as a witness for the prosecution and gave evidence against the appellant at his trial. Mr Crichton pleaded guilty to one representative charge of supplying methamphetamine and was sentenced to seven years imprisonment (to be served cumulatively on a term of imprisonment imposed in 2009).[4]
[3]R v Nguyen HC Auckland CRI-2008-092-2364, 1 December 2009 [Nguyen sentencing judgment].
[4]R v Crichton HC Auckland CRI-2009-404-251, 5 August 2010 [Crichton sentencing judgment].
On count three, the appellant was found guilty of supplying methamphetamine on or about 24 May 2007. On count five he was found guilty of a supply on or about 3 June 2007, and on count six, he was found…

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 Wei v R

Details

AGLC: Wei v R [2012] NZCA 54
Case: [2012] NZCA 54
Decision Date: 2 March 2012

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Kun Wei, appealed against his conviction and sentence for supplying methamphetamine. Wei was found guilty on three counts of supplying the drug and was sentenced to ten and a half years in prison with a minimum imprisonment period of 50 per cent. Wei argued that the jury's verdict on count five was unreasonable and that his sentence was manifestly excessive and should not include a minimum period of imprisonment. The Court considered the evidence presented and the arguments made by both parties. The Court found that the jury's verdict was reasonable, and the sentence was appropriate given the nature and seriousness of the offending. The appeals against conviction and sentence were dismissed.

The legal issues in this case involved the reasonableness of the jury's verdict on count five, the calculation of the quantity of methamphetamine supplied, the disparity in starting points between Wei and other offenders, the discount given for good character, and the imposition of a minimum period of imprisonment. The Court reviewed the evidence and arguments presented by both parties and found that the jury's verdict was reasonable, the quantity of methamphetamine supplied was correctly calculated, there was no unjustifiable disparity in starting points, the discount given for good character was adequate, and the imposition of a minimum period of imprisonment was justified. The appeals against conviction and sentence were dismissed.

Orders