Yuen v R - [2010] NZCA 521

IN THE COURT OF APPEAL OF NEW ZEALAND
CA328/2010
[2010] NZCA 521
BETWEENYIP MOON YUEN

Appellant

ANDTHE QUEEN

Respondent

Hearing:3 November 2010

Court:Randerson, Potter and Cooper JJ
Counsel:J T Edgar and G H Vear for Appellant

B D Tantrum and D M Robinson for Respondent

Judgment:17 November 2010 at 3 p.m.

JUDGMENT OF THE COURT

The appeal against sentence is dismissed
REASONS OF THE COURT
(Given by Cooper J)
[1]        The appellant appeals against a sentence of five years, two months’ imprisonment imposed in the District Court at Auckland when he pleaded guilty to one charge of possession of methamphetamine for supply and one charge of conspiracy to possess pseudoephedrine for supply.
[2]        The appellant contends that the Judge’s approach to the sentencing was flawed, and that she gave insufficient consideration to the totality principle. The result is said to be an effective term of imprisonment that is manifestly excessive.
The offending
[3]        The appellant was apprehended after the police arrested a co-accused who had arrived at Auckland International Airport with a total of 3.8 kilograms of ContacNT granules containing pseudoephedrine strapped to his body, an amount sufficient to enable the manufacture of between approximately 770 grams and 1.16 kilograms of methamphetamine. The following day, the appellant telephoned the co-accused, and his call was answered by a police officer who arranged to meet him at an Auckland hotel. The appellant was apprehended in possession of $5,000 in $20 notes. His cell phone showed twelve calls had recently been made to the co-accused. A search of the appellant’s vehicle located 51.5 grams of methamphetamine in resealable bags, together with a set of scales.
[4]        The methamphetamine had an estimated value of $50,000.
[5]        It is relevant to note that on 12 December 2008 the appellant was convicted of wounding with intent to injure. He was sentenced to 100 hours’ community work and six months’ supervision on that charge. It is unclear on the materials available to us whether he had completed the sentence of community work by the time the current offending occurred. However, he was, at the time, still subject to the sentence of supervision.
The sentence imposed in the District Court
[6]        Judge Bouchier was asked to give a sentencing indication on 23 December 2009. It was her view that the charge of possession of methamphetamine for supply justified a starting point for sentencing purposes of four years’ imprisonment and that the charge of conspiracy to possess pseudoephedrine for supply warranted a starting point of three years. She added both starting points together to arrive at a total of seven years. She then deducted 20 per cent for the appellant’s prospective guilty plea, and made a slight reduction, rounding in favour of the appellant, to arrive at an indication of five years, six months’ imprisonment.
[7]        Counsel for the Crown and the appellant were evidently both of the view that that sentence would be too stern. They filed a joint memorandum in which they submitted that the Judge should…

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 The Queen [2010] NZCA 521
Case: [2010] NZCA 521
Decision Date: 17 November 2010

CaseChat Overview and Summary

The appeal in Yuen v R was brought by the appellant, Yip Moon Yuen, against a sentence of five years and two months’ imprisonment imposed in the District Court at Auckland. The appellant had pleaded guilty to one charge of possession of methamphetamine for supply and one charge of conspiracy to possess pseudoephedrine for supply. The central issue was whether the Judge’s approach to sentencing was flawed and if she had adequately considered the totality principle, leading to a sentence deemed manifestly excessive. The court had to determine if the Judge's methodology and final sentence were appropriate, given the gravity of the appellant's criminal activities.

The Court of Appeal examined the appellant's argument that the Judge's approach to sentencing was flawed and that insufficient consideration was given to the totality principle. The court noted that the Judge had initially provided a sentencing indication of five years and six months, which both counsel considered too severe. Following a joint memorandum from both parties, the Judge reconsidered the sentence and reduced it by four months, imposing a sentence of five years and two months. The appellant argued that this sentence was still excessive, particularly as it did not adequately reflect the totality of the offending when compared to a more conventional sentencing approach. Conversely, the Crown argued that the sentence was within the appropriate range and not manifestly excessive.

The Court of Appeal concluded that while the Judge's methodology might differ from what some might consider conventional, it did not render the sentence inappropriate. The court found that the sentence imposed was within the available range and could not be characterised as manifestly excessive. The reasoning was grounded in the severity of the appellant's possession of methamphetamine and the potential for manufacturing a significant amount of the drug from the pseudoephedrine found with the co-accused. Additionally, the court noted that the appellant was still subject to a sentence of supervision at the time of the offending, which warranted an increment in the sentence. Therefore, the appeal against the sentence was dismissed, affirming the District Court's imposition of a five years and two months’ imprisonment term.

Orders