Yu v The the Queen - [2022] NZCA 382

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA44/2022
[2022] NZCA 382

BETWEEN	CHIU TAN YU Appellant
AND	THE QUEEN Respondent

Hearing:	13 July 2022
Court:	Miller, Lang and Cull JJ
Counsel:	S Brickell for Appellant B D Tantrum and D B Dow for Respondent
Judgment:	17 August 2022 at 11.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time is granted.
BThe appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Lang J)

Mr Yu pleaded guilty in the High Court to one charge of importing methamphetamine.[1] On 9 October 2020, Palmer J sentenced Mr Yu to 15 years, six months’ imprisonment.[2] The Judge also made an order under s 86 of the Sentencing Act 2002 (the Act) requiring Mr Yu to serve a minimum term of seven years before being eligible to apply for parole.[3]
[1]Misuse of Drugs Act 1975, s 6(1)(a).
[2]R v Yu [2020] NZHC 2661 at [24].
[3]At [24].
Mr Yu appeals against sentence.[4] He contends the Judge adopted a starting point that was too high, and then failed to give him adequate discounts for mitigating factors. He says this resulted in an end sentence that was manifestly excessive. He also contends the Judge should not have imposed a minimum term of imprisonment.
[4]Criminal Procedure Act 2011, s 229.
Mr Yu’s notice of appeal was filed over one year out of time. He explained his delay by pointing to difficulties finding a lawyer from prison and his limited English language ability. The Crown does not oppose the application being granted and does not point to any prejudice from the delay. Accordingly, we grant the extension of time.

The offending

Mr Yu pleaded guilty on the basis of an agreed summary of facts. This recorded that he is a citizen of Taiwan. He arrived in New Zealand with several associates on a three-month visitor’s visa on 11 January 2019.
Six days later, on 17 January 2019, a shipping container arrived in New Zealand from Long Beach, California. This was found to contain three electric golf carts. The consignees were described as a Ms Goddard and a Mr Lee. The golf carts were inspected by Customs officials and two pistols were found concealed within them. In addition, each golf cart contained modified batteries in which Customs officials found vacuum sealed plastic bags containing methamphetamine.
In total, Customs officials removed 110 kilograms of methamphetamine from the batteries and replaced it with a placebo substitute. The Crown estimates the value of the methamphetamine at $17.6 million if sold on a wholesale basis by the kilogram.
Between 31 January and 13 February 2019, Mr Yu obtained cash from his co‑defendant, a Mr Sun, and used this to pay outstanding storage fees owing on the container together with other expenses. He also inspected the container and photographed the golf carts.
By this stage Mr Yu had rented a residential property in Glendene. The freight company that had handled…

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 Yu v The the Queen

Details

AGLC: Yu v The the Queen [2022] NZCA 382
Case: [2022] NZCA 382
Decision Date: 17 August 2022 at 11.30 am

CaseChat Overview and Summary

Chiu Tan Yu appealed against his sentence for importing methamphetamine, arguing that the starting point and discounts applied were incorrect. The Court of Appeal of New Zealand considered the appeal and found that the starting point was appropriate given Mr Yu's role in the organisation, and the discounts applied were also appropriate. The appeal against sentence was dismissed, and the sentence imposed by the High Court was upheld.

The key legal issues in this case were whether the starting point and discounts applied by the High Court were appropriate. The Court of Appeal found that the starting point was appropriate, given Mr Yu's role in the organisation, and that the discounts applied were also appropriate. The Court of Appeal noted that the Judge had considered the relevant factors in determining the sentence and had applied the law correctly. The Court of Appeal also found that the imposition of a minimum term of imprisonment was appropriate given the seriousness of the offending. The appeal against sentence was therefore dismissed.

Orders