Yim v R - [2017] NZCA 421

IN THE COURT OF APPEAL OF NEW ZEALAND

CA247/2017
[2017] NZCA 421

BETWEEN	KA KIT YIM Appellant
AND	THE QUEEN Respondent

Hearing:	30 August 2017
Court:	Harrison, Duffy and Williams JJ
Counsel:	S J Bonnar QC for Appellant E J Hoskin for Respondent
Judgment:	21 September 2017 at 2.15 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

The appellant, Ka Kit Yim, pleaded guilty in the High Court at Auckland to one charge of possessing a kilogram of methamphetamine for the purposes of supply. Venning J convicted and sentenced him to a term of 11 and a half years’ imprisonment.[1] Mr Yim appeals his sentence on the ground that it is manifestly excessive because the Judge (a) adopted a starting point which was too high; (b) failed to allow an appropriate discount for good character and lack of relevant previous convictions; and (c) allowed an insufficient discount for the guilty plea.

Facts

[1]R v Yim [2017] NZHC 702 [Sentencing notes].

The relevant facts were agreed. In February 2016 the New Zealand Customs Service intercepted a consignment of 28 boxes of granite tea trays from China to New Zealand. Some 39.6 kilograms of methamphetamine were hidden inside. The police obtained an electronic surveillance warrant of a property on Auckland’s North Shore occupied by two recent arrivals from Taiwan, Yen Hua Chen and Tzu Te Hung, to which a controlled delivery of the consignment was undertaken. The surveillance operation led the police separately to Mr Yim. Following execution of a series of search warrants, the police found a kilogram of methamphetamine and more than $1.8 million in cash in storage units, a house and three luxury motor vehicles elsewhere in Auckland either owned by Mr Yim or under his control.
The Crown originally charged Mr Yim with (a) conspiring with Messrs Chen and Hung to possess for supply the 39.6 kilograms of methamphetamine consignment; and (b) separately possessing for supply the one kilogram of methamphetamine found at his property. He pleaded not guilty to both charges.
In December 2016 Mr Chen pleaded guilty to the conspiracy charge following a sentencing indication; he was convicted and sentenced on a starting point of 20 years’ imprisonment.[2] In February 2017 Mr Hung pleaded guilty and was convicted and sentenced on a starting point of 18 years.[3] The respective end sentences imposed were 12 and a half years’ and 13 years and nine months’ imprisonment.
[2]R v Chen [2016] NZHC 3037.
[3]R v Hung [2017] NZHC 467.
In early February 2017 also the Crown accepted Mr Yim’s proposal to resolve the proceeding by entering a plea of guilty to the possession-for-supply charge in exchange for the Crown withdrawing the conspiracy charge.

High Court

It was common ground before Venning J that the starting point for Mr Yim’s offending fell within band four of the sentencing categories prescribed by this Court in R v Fatu; that is, within a range…

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 Yim v R

Details

AGLC: Yim v R [2017] NZCA 421
Case: [2017] NZCA 421
Decision Date: 21 September 2017 at 2.15 pm

CaseChat Overview and Summary

Ka Kit Yim, the appellant, was convicted and sentenced in the High Court at Auckland to 11 and a half years’ imprisonment for possessing a kilogram of methamphetamine for the purpose of supply. He appealed his sentence, contending that it was manifestly excessive because the Judge (a) adopted a starting point which was too high; (b) failed to allow an appropriate discount for good character and lack of relevant previous convictions; and (c) allowed an insufficient discount for the guilty plea. The Court of Appeal rejected the appeal and upheld the sentence. It found that the starting point of 14 years was appropriate, that there was no error in the assessment of mitigating personal circumstances, and that the 15 per cent discount for the guilty plea was appropriate. The Court found that the sentence was not manifestly excessive.

The appellant, Ka Kit Yim, was found guilty in the High Court at Auckland of possessing a kilogram of methamphetamine for the purposes of supply. The Crown accepted a plea bargain in which Mr Yim pleaded guilty to the possession charge in exchange for the withdrawal of a conspiracy charge. Venning J convicted and sentenced him to 11 and a half years’ imprisonment. Mr Yim appealed his sentence on the grounds that it was manifestly excessive because (a) the Judge adopted a starting point which was too high; (b) failed to allow an appropriate discount for good character and lack of relevant previous convictions; and (c) allowed an insufficient discount for the guilty plea. The Court of Appeal dismissed the appeal and upheld the sentence. The Court found that the starting point was appropriate, that there was no error in the assessment of mitigating personal circumstances, and that the 15 per cent discount for the guilty plea was appropriate. The Court found that the sentence was not manifestly excessive.

The Court of Appeal found that the starting point of 14 years was appropriate, given the amount of drugs involved and the appellant's involvement in a large-scale drug operation. The Court also found that there was no error in the assessment of mitigating personal circumstances, as the appellant's personal circumstances carried relatively little weight due to the dominant importance of deterrence. Finally, the Court found that the 15 per cent discount for the guilty plea was appropriate, given that the plea was entered at a relatively late stage of the proceeding. The Court also noted that the Judge had deliberately decided not to follow the settled practice for major drug offending of imposing a minimum period of imprisonment, which had resulted in a more lenient sentence for the appellant.

The Court of Appeal dismissed the appeal and upheld the sentence of 11 and a half years’ imprisonment imposed on the appellant.

Orders