Court : New Zealand Court of Appeal
(Given by Harrison J) Introduction [1] Desheng Bi was found guilty on charges of importing and possessing for supply the Class C drug pseudoephedrine following his trial before Judge Recordon and a jury in the District Court at Auckland. He was convicted and sentenced to nine and a half years imprisonment. [1] [2] Mr Bi appeals against his sentence on the ground that it is manifestly excessive. In particular he says that (a) there was a gross disparity between his sentence and that imposed on his co-offender; and (b) the sentence offends the totality principle. Facts [3] In February 2011 Mr Bi travelled from New Zealand to Hong Kong to arrange a shipment of furniture from China to New Zealand. Included within the shipment were eight bean-bags within which 30 grey packages were secreted containing a total of approximately 67 kilograms of Contac NT granules. Customs officers intercepted the shipment in Auckland in April 2011 and arranged for a controlled delivery. [4] Mr Bi had organised...
Tag this Judgment!Court : New Zealand Court of Appeal
(Given by White J) Introduction [1] On 20 January 2012 the police executed search warrants at the properties of the first and fourth respondents, Messrs Kim Dotcom and Bram van der Kolk. Acting under the warrants, which had been obtained the previous day from a District Court Judge, the police seized more than 135 electronic items, including laptops, computers, portable hard drives, flash storage devices and servers, containing an estimated 150 terabytes of data. [2] The search warrants were obtained under the Mutual Assistance in Criminal Matters Act 1992 (the MACMA) at the request of the Department of Justice of the United States of America which is seeking the extradition of the four respondents to face charges in the United States District Court for the Eastern District of Virginia of criminal copyright offending and money laundering involving substantial sums of money. [3] The police also obtained warrants for the arrest of the four respondents and they were arrested at the same t...
Tag this Judgment!Court : New Zealand Court of Appeal
(Given by Harrison J) [1] Bowdy Henare pleaded guilty in the District Court at Manukau to one charge of unlawfully taking a motor vehicle and one of burglary. He was convicted and sentenced by Judge Winter to a term of 22 months imprisonment.[1] He appeals against that sentence on the grounds that it is wrong in principle; and that a term of home detention should have been imposed. [2] In summary, early one morning in February 2012 Mr Henare stole a Subaru motor vehicle from a Mangere address. Just after noon the next day Mr Henare and three others drove in the stolen vehicle to a residential property in Avondale. Two of the men entered and ransacked the dwelling, taking valuable property including jewellery and computer equipment. Mr Henare and another waited in the car, acting as lookouts. The stolen property has not been recovered. [3] Mr Anderson accepts that if imprisonment was the appropriate sentence, the term of twenty-two months imposed by the Judge was not excessive. Neverthe...
Tag this Judgment!Court : New Zealand Court of Appeal
(Given by Harrison J) [1] Douglas Tahere pleaded guilty in the District Court at Manukau to one charge of burglary. He was sentenced to a term of nineteen months imprisonment.[1] He appeals on the ground that a sentence of home detention should have been imposed. [2] In February 2012 Mr Tahere and another man stood outside an apartment block complex in Epsom. They were acting as lookouts for two other men who forced their entry into an apartment. They took items including $620.00 in cash and a large amount of gold jewellery. Mr Tahere dumped the stolen property in a rubbish bin but it was later recovered by the police. [3] Mr Broad accepts that a term of nineteen months imprisonment cannot be challenged if that type of sentence was appropriate. However, he submits that the Judge erred in failing to impose a sentence of home detention instead. In particular, he says that Judge Winter gave undue weight to the fact that a sentence of four months home detention had previously been imposed ...
Tag this Judgment!Court : New Zealand Court of Appeal
Introduction [1] The appellant brought a proceeding in the High Court in relation to a settlement agreement she had entered into with the respondent. Katz J dismissed the appellants claims which were for breach of contract and for rent.[1] The respondents counterclaim for equitable interest on the purchase price or, in the alternative, rent also failed. [2] The appellant has appealed against the decision of Katz J.[2] [3] The Registrar set security for costs in the sum of $5,880. The appellant by letter dated 27 May 2013 sought dispensation from the requirement to pay security. In a letter dated 6 November 2013, the Registrar declined to waive security.[3] The Registrar ordered that the security of $5,880 be paid by 4 December 2013. The appellant now seeks a review of the decision refusing to dispense with security. Approach [4] In the normal course, appellants in civil proceedings in this Court are required to pay security for costs.[4] An appellant may apply to the Registrar for a wa...
Tag this Judgment!Court : New Zealand Court of Appeal
(Given by Miller J) [1] We give brief reasons of clarify the identified questions of law, and to explain why we have dismissed Mr Aarts applicants for leave to cross-appeal, and to appeal the Employment Courts costs judgement. [2] The first question of law addresses the issue whether the Commissioner of Police may bring an appeal to this Court when he is no longer a party to the proceedings under appeal. [3] The second question of law is intended to establish whether the Evidence Regulations 2007 preclude the Employment Relations Authority from issuing a summons to the police to produce evidential video interviews of child complainantsin proceedings for unjustified dismissal brought by Mr Aarts against his former employer, Barnardos New Zealand Inc. [4] The first question should logically be answered before leave can be given to argue the second, but in the interests of efficiency we will hear argument on both at the same hearing. [5] The Commissioner was not Mr Aarts' employer, but he...
Tag this Judgment!Court : New Zealand Court of Appeal
(Given by Randerson J) Introduction [1] Mr Ward applies under r 29A of the Court of Appeal (Civil) Rules 2005 for an extension of time to appeal against a judgment of Associate Judge Doogue delivered on 18 December 2012 in summary judgment proceedings brought by the respondents.[1] Mr Ward filed a notice of appeal against the Associate Judges decision on 11 February 2013. The notice was rejected as it was two days out of time. The application for an extension of time was filed on 18 June 2013, some four months after the time for appealing expired.[2] [2] Since the application was filed, Mr Ward has been adjudicated bankrupt on 30 January 2014 upon the application of the respondents. On 5 February 2014 the Official Assignee notified the Court that Mr Wards right to pursue this application had vested in the Official Assignee[3] and that he did not intend to pursue the application further. The Official Assignee has also formally abandoned any right to prosecute the application and the pro...
Tag this Judgment!Court : New Zealand Court of Appeal
(Given by Randerson J) Introduction [1] Mr Jefferies applies under s 308 of the Resource Management Act 1991 (the RMA) for special leave to appeal against a judgment of Williams J delivered on 10 May 2013.[1] Williams J dismissed Mr Jefferies appeal against an earlier decision of the Environment Court which upheld two abatement notices the respondent issued against Mr Jefferies.[2] [2] Williams J later declined an application for leave to appeal to this Court.[3] This led to Mr Jefferies current application to this Court. Background [3] Mr Jefferies owns a property adjoining the Mangaroa River within the jurisdiction of the Wellington Regional Council. In April and May 2010, the Council issued two abatement notices against Mr Jefferies alleging breaches of s 13 of the RMA. This section restricts certain activities in relation to the bed of any lake or river. It is not in dispute that Mr Jefferies and a neighbour placed a 1.5m high bund on land which the Environment Court held was part ...
Tag this Judgment!Court : New Zealand Court of Appeal
(Given by Ellen France J) Introduction [1] In a judgment delivered on 11 December 2013,[1] we dismissed applications by Mr Peterson for a recall and stay of our judgment delivered on 30 September 2013[2] declining to grant him special leave to appeal from a judgment of Gilbert J.[3] [2] We invited submissions from the parties as to various directions sought by the respondents in relation to the remaining appeals filed by the Peterson interests. This judgment deals with those matters. Strike-out of the remaining appeals [3] The Lucas parties seek an order striking out the remaining applications, CA40/2010, CA651/2011, CA766/2012 and CA767/2012, and costs in relation to CA766/2012 and CA767/2012. The strike-out application reflects the position taken by Arnold J in a minute of 21 June 2013 where his Honour said:[4] [5] As I see the position, if Mr Peterson is unable to persuade this Court that it should grant special leave to appeal in CA768/2012, Gilbert Js judgment will stand and the r...
Tag this Judgment!Court : New Zealand Court of Appeal
[1] By application dated and filed on 13 January, the appellant applies under r 7(2) for review of the Registrars decision refusing to accept his application dated 30 December last, and received by the Court when the Registry opened on 6 January. [2] The Registrars decision was made on 7 January. The appellants application of 30 December was made under s 61A(1) of the Judicature Act 1908 for a ruling by a Judge dispensing with the security for costs a Deputy Registrar had fixed at $5,880. [3] In her 7 January decision the Registrar held there was no jurisdiction for the 30 December application under s 61A(1). [4] I agree with the Registrar. My reasons are set out in the judgment I gave on 7 February in Siemer v Official Assignee [2014] NZCA 3, where the appellant had made an identical application. [5] For those reasons I uphold the Registrars decision of 7 January as correct and dismiss the application for review....
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