Wen v Police - [2014] NZHC 2085

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-60 [2014] NZHC 2085

BETWEEN
BO SHU WEN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 1 September 2014

Counsel:

MN Pecotic for Appellant
MJ Hammer for Respondent

Judgment:

1 September 2014

JUDGMENT OF BREWER J

Solicitors/Counsel: Maria Pecotic (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent

WEN v POLICE [2014] NZHC 2085 [1 September 2014]

Introduction

[1] Mr Wen appeals the sentence imposed on him by Judge CJ Field in the District Court at Auckland on 13 February 2014.1 The sentence followed pleas of guilty to one charge of importing pseudoephedrine into New Zealand and one charge of possession of pseudoephedrine for the purpose of supply. The Judge adopted a starting point of seven years’ imprisonment, made an allowance of 25 per cent for co-operation with authorities and a further allowance of 25 per cent for the pleas of
guilty. The end sentence was three years and nine months’ imprisonment. A

minimum period of imprisonment of two years was imposed.

Issues

[2] The overall issue on this appeal is whether the end sentence is clearly excessive or inadequate or inappropriate.2 It is subdivided as follows:

(a) Is the Judge’s starting point excessive in comparison with those adopted for his co-offenders?

(b)Was insufficient credit given to Mr Wen for his co-operation with authorities?

(c) Should the starting point be discounted because of Mr Wen’s personal

circumstances?

(d) Was the minimum period of imprisonment excessive?

Is the Judge’s starting point excessive in comparison with those adopted for his co-offenders?

[3] The charges to which Mr Wen pleaded guilty relate to the importation of

91 kilograms of Contac NT concealed within a water filter. The quantity of pseudoephedrine involved is 30.94 kilograms. A co-offender, Mr Xue, recruited Mr Wen to locate a place in which the water filter could be kept and opened.

Mr Wen did this, he liaised with Customs officials and arranged for a transport company to deliver the water filter. Mr Wen was also to purchase tools to open the water filter and was told that his reward for doing these things would be $60,000. Mr Wen arranged for his wife to rent a storage unit to house the Contac NT once it had been extracted from the water filter. He bought tools with which to open the water filter but did not do so before his arrest. He did not know how much Contac NT was in the water filter and he was not involved with organising for the water filter to be shipped to New Zealand.

[4] Ms Pecotic, for Mr Wen, argues that the Judge’s starting point of seven years’ imprisonment is too high because that was the starting point adopted by another District Court Judge for the sentencing of Mr Xue3 and the sentencing of another main player in the importation, a Mr Lin. This means that there has been no real recognition of Mr Wen’s lower degree of culpability. In Ms Pecotic’s submission, Mr Wen is…

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 Wen v Police

Details

AGLC: Wen v Police [2014] NZHC 2085
Case: [2014] NZHC 2085
Decision Date: 1 September 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Bo Shu Wen appealed against the sentence imposed on him by Judge CJ Field in the District Court at Auckland. Mr Wen pleaded guilty to one charge of importing pseudoephedrine into New Zealand and one charge of possession of pseudoephedrine for the purpose of supply. The Judge adopted a starting point of seven years’ imprisonment, made an allowance of 25 per cent for co-operation with authorities and a further allowance of 25 per cent for the pleas of guilty. The end sentence was three years and nine months’ imprisonment, with a minimum period of imprisonment of two years. The appeal's main issue was whether the end sentence was clearly excessive or inadequate or inappropriate. The court found the sentence was clearly inadequate.

The court found the starting point adopted for Mr Wen was not excessive when compared to that of his co-offenders. It found that the law relating to consistency of sentencing between co-offenders does not operate to reduce an inadequate sentence to a manifestly inadequate sentence because co-offenders received manifestly inadequate sentences. The court also found that insufficient credit was not given to Mr Wen for his co-operation with authorities. The court found that the Judge did not make an error by not giving a discount for Mr Wen’s personal circumstances. The court found the imposition of the minimum term of imprisonment was not excessive in the particular circumstances of this case.

The appeal was dismissed. The court expressed itself strongly in this judgment so that in future sentencings, the cases of Mr Wen, Mr Xue and Mr Lin would not be used to undermine the clear line of authority established by the Court of Appeal for serious Class B drug offending.

Orders