Yuen v R - [2015] NZCA 555

IN THE COURT OF APPEAL OF NEW ZEALAND

CA248/2015
[2015] NZCA 555

BETWEEN	ANTHONY KOU FOI YUEN Appellant
AND	THE QUEEN Respondent

Hearing:	9 November 2015
Court:	Kós, Fogarty and Mallon JJ
Counsel:	C J Tennet for Appellant I Murray and S L Graham for Respondent
Judgment:	18 November 2015 at 4.00 pm

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed in part.

BThe minimum period of imprisonment of four years is quashed, and a minimum period of imprisonment of three years and two months is substituted.

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REASONS OF THE COURT

(Given by Kós J)

Following a sentence indication Mr Yuen pleaded guilty to four counts of importing ephedrine, a class B drug and precursor to methamphetamine. The amount involved was 60.779 kg, convertible to 12–18 kg of methamphetamine, worth some $6–18 million. Mr Yuen organised and provided addresses for the importation of packages of ephedrine. He would then deliver them to other persons. He said he expected to receive a cash payment of $3000 per package upon delivery.
Mr Yuen was sentenced by Judge Kiernan in the Auckland District Court to eight years’ imprisonment with a minimum non-parole period (MPI) of four years.[1]
[1]R v Yuen [2015] NZDC 9173.
He now appeals that sentence.

Sentencing indication

In her sentencing indication, the Judge said a starting point of 13 years was appropriate in light of the large scale commerciality and quantities involved in the operation, the harm that flows from methamphetamine, and the level of premeditation and organisation.[2] A discount of 25 per cent for a guilty plea would be given, and a further 10 per cent for youth, lack of previous convictions, and cooperation with authorities was indicated, but with the prospect of greater allowance still. The likely end sentence was expressed as a range: seven to nine and a half years, with a 50 per cent MPI.

Sentencing decision appealed

[2]R v Yuen DC Auckland CRI-2014-004-3909, 22 December 2014.

Mr Yuen pleaded guilty. He was sentenced in line with the indication: a 13 year starting point and an overall reduction of about 38 per cent for mitigating factors. That produced an eight year sentence and a four year (50 per cent) MPI was imposed.

Appeal

The grounds of the appeal are three: that the starting point was too high, the end sentence was unfairly disparate to that of his co‑offender, and an MPI should not have been imposed. Although Mr Yuen was sentenced in accordance with the sentencing indication he was given, his right of appeal remains.[3]

Issue 1: Was the starting point too high?

[3]Criminal Procedure Act 2011, s 245.

Mr Tennet notes that ephedrine was increased from a class C to class B controlled drug in 2011.[4] The guideline judgment for class B drugs is R v Wallace and Christie. It provides:[5]
… for commercial activity on a major scale the starting point before any allowance for mitigating factors for a principal offender will be in excess of 8 years…

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 Yuen v R

Details

AGLC: Yuen v R [2015] NZCA 555
Case: [2015] NZCA 555
Decision Date: 18 November 2015 at 4.00 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Anthony Kou Foi Yuen appealed against his sentence for drug importation. Mr Yuen pleaded guilty to four counts of importing ephedrine, a precursor to methamphetamine, with the total amount involved being 60.779 kg, convertible to 12–18 kg of methamphetamine, worth approximately $6–18 million. The court was required to decide whether the starting point for sentencing was too high, if the sentence imposed was disparate to that of a co-offender, and if a minimum period of imprisonment should have been imposed.

The court held that the starting point of 13 years was appropriate for the large-scale commerciality and quantities involved in the operation, the harm that flows from methamphetamine, and the level of premeditation and organisation. The court found that the appeal against the sentence was allowed in part, as the minimum period of imprisonment of four years was quashed, and a minimum period of imprisonment of three years and two months was substituted. The court considered the sheer commercial scale of importation, its repeated nature, and the potential harm to the community had conversion to methamphetamine been effected, making it an appropriate response in this case.

Orders