Zhou v The Queen - [2020] NZCA 278

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA89/2020
[2020] NZCA 278

BETWEEN	SUI JUN ZHOU Appellant
AND	THE QUEEN Respondent

Hearing:	23 June 2020
Court:	Gilbert, Ellis and Katz JJ
Counsel:	J D Lucas for Appellant J E Mildenhall for Respondent
Judgment:	9 July 2020 at 9.30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellis J)

Between April 2014 and May 2016, Mr Zhou — along with his co-offenders Ms He, Mr Miao, and Mr Fu — were engaged in a commercial-scale operation for the distribution and supply of synthetic cannabis in Christchurch. The quantities of involved (173 kilograms were found in their possession on the day of Mr Zhou and Mr Miao’s arrest) made it by far the biggest such operation ever uncovered in this country.[1]
[1]The biggest previous operation involved 2.5 kilograms.
On 28 November 2019, Judge O’Driscoll sentenced Ms He to 28 months’ imprisonment, Mr Zhou to 26 months’ imprisonment, and Mr Miao to eight months’ home detention and 250 hours community work.[2]
[2]R v He [2019] NZDC 24130.
Mr Zhou now appeals his sentence. In essence he says that, given their respective roles in the operation, his sentence should have been more than two months lower than Ms He’s. He says that the appropriate sentence would be at or below two years’ imprisonment and that home detention then can, and should, be substituted.
So, for present purposes, we are only concerned with the sentences imposed on Mr Zhou and Ms He.
Mr Zhou filed his appeal approximately one month out of time. There is no prejudice and the Crown does not oppose an extension of time being granted. We accordingly grant an extension of time to appeal.

District Court decision

Judge O’Driscoll (who had presided over the partial trial) sentenced Mr Zhou, Ms He, and Mr Miao together. He began by noting that the group’s offending was on a commercial-scale, involved significant amounts of cash and substance, occurred over a two-year period, and was — by far — the largest synthetic cannabis case brought before New Zealand courts.[3] The Judge also observed that synthetic cannabis has only recently been made illegal in New Zealand and that the maximum penalty for its supply is two years’ imprisonment[4] — considerably less than the maximum penalty for the supply of cannabis.[5]
[3]At [19].
[4]Psychoactive Substances Act 2013, s 70(3)(a).
[5]R v He, above n 2, at [20].
The Judge said that the purpose of the sentence was to denounce the offending and to hold the defendants accountable, relative to their respective culpability. He noted that imprisonment is not necessarily an effective deterrent for drug offenders.[6]

Ms He

[6]At [26], referring to Palmer J’s comments in R v Wellington [2018] NZHC 2196 at [5]–[9].

The Judge recorded that, on day nine of the trial, Ms He pleaded guilty to two charges under s 70 of the Psychoactive Substances Act…

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 Zhou v The Queen

Details

AGLC: Zhou v The Queen [2020] NZCA 278
Case: [2020] NZCA 278
Decision Date: 9 July 2020 at 9.30 am

CaseChat Overview and Summary

In the New Zealand Court of Appeal, Sui Jun Zhou, the appellant, challenged the sentence imposed on him by Judge O'Driscoll, arguing that the sentence was disproportionate compared to that of his co-offender, Ms He. Zhou's appeal against his sentence was dismissed by the Court of Appeal. Zhou was involved in a commercial-scale synthetic cannabis operation, which was the largest of its kind in New Zealand. He was sentenced to 26 months imprisonment, while Ms He received a 28-month imprisonment sentence. Zhou contended that his sentence should have been more than two months lower than Ms He's due to his lesser role in the operation.

The legal issues in this case were whether the Judge had made errors in setting the starting point for sentencing, the discount for personal mitigating circumstances, and the discount for the guilty plea. The Court focused on the final sentence imposed by the Judge and whether it was in the available range, rather than the exact process by which it was reached. The Court concluded that even if all the points made by Zhou were accepted, the end sentence would still be higher than the sentence actually imposed by the Judge and outside the home detention range.

The Court of Appeal held that the Judge made a significant adjustment to the end sentence based on parity grounds. The Court disagreed with Zhou's submission that the sentencing judge should ignore the differences between the parties' charges and personal circumstances, as this would stretch the principles of sentencing beyond their limits. The Court found that the sentence imposed by the Judge was not manifestly excessive, and thus dismissed the appeal against sentence.

Orders