Doan v The Queen - [2021] NZCA 532

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA733/2020
[2021] NZCA 532

BETWEEN	ANH TUAN DOAN Appellant
AND	THE QUEEN Respondent

Hearing:	5 October 2021
Court:	Brown, Venning and Cull JJ
Counsel:	H G de Groot for Appellant L P Radich for Respondent
Judgment:	14 October 2021 at 10.30 am

JUDGMENT OF THE COURT

AThe application for leave to appeal out of time is granted.
BThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

Mr Doan pleaded guilty to two charges of importing methamphetamine[1] and one charge of possessing methamphetamine for supply.[2] On 29 October 2019 he was sentenced by Walker J to 15 years and four months’ imprisonment with a minimum period of imprisonment (MPI) of just over 40 per cent.[3]
[1]Misuse of Drugs Act 1975, s 6(1)(a) and (2)(a).
[2]Section 6(1)(f), (1)(c) and (2)(a).
[3]R v Doan [2019] NZHC 2749.
The Judge adopted a starting point of 17 years’ imprisonment in respect of the importation charges and applied an uplift of 18 months for the charge of possession for supply. A discount of 18 months’ imprisonment was allowed for personal mitigating factors, with a further discount of 10 per cent for the guilty plea which did not come at the first opportunity. Because the Judge did not consider that parole after a little more than five years’ imprisonment adequately would satisfy the deterrence objective of sentencing or hold Mr Doan accountable for his conduct, an MPI of six years and six months was imposed.
Mr Doan appeals his sentence, contending that:
(a)the starting point of 17 years on the importation charges was excessive;
(b)the 18-month discount for personal factors was inadequate and an adjustment of 15 per cent was warranted; and
(c)no MPI was necessary as Mr Doan had no criminal history, posed a low risk of reoffending and had good prospects for rehabilitation.

Leave

The appeal was filed on 15 December 2020, some 11 months out of time. The reason for the delay is said to be attributable to language difficulties, Mr Doan’s lack of understanding of his appeal rights and the loss of contact with his trial counsel who was appointed a District Court Judge on 21 January 2020. Although the delay is significant, it is adequately explained. As there is no prejudice for the Crown, leave to appeal is granted.

Background

The circumstances giving rise to the charges were detailed in an agreed statement of facts.
In 2017 the National Organised Crime Group commenced an investigation, code-named Operation Echo, into the importation and supply of the Class A controlled drug methamphetamine in Auckland by Mr Doan and others. That investigation revealed that Mr Doan had imported methamphetamine concealed in machinery and food products into New Zealand.

Importation of methamphetamine: the 11 June 2017 consignment

On 11 June 2017 a consignment purporting to be “used hydraulic cylinders” arrived into New Zealand from Canada via a customs brokerage company. The consignee/addressee on…

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 Doan v The Queen

Details

AGLC: Doan v The Queen [2021] NZCA 532
Case: [2021] NZCA 532
Decision Date: 14 October 2021 at 10.30 am

CaseChat Overview and Summary

Anh Tuan Doan appealed against his sentence, contending that the starting point of 17 years on the importation charges was excessive, the 18-month discount for personal factors was inadequate and an adjustment of 15 per cent was warranted, and no minimum period of imprisonment (MPI) was necessary as Mr Doan had no criminal history, posed a low risk of reoffending and had good prospects for rehabilitation. The appeal was filed on 15 December 2020, some 11 months out of time. The reason for the delay was said to be attributable to language difficulties, Mr Doan’s lack of understanding of his appeal rights and the loss of contact with his trial counsel who was appointed a District Court Judge on 21 January 2020. Although the delay was significant, it was adequately explained. As there was no prejudice for the Crown, leave to appeal was granted.

The appeal raised three issues. Firstly, the starting point of 17 years’ imprisonment in respect of the importation charges was challenged. The court agreed with the trial judge that the selection of a 17 year starting point was plainly justified. Secondly, the 18-month discount for personal factors was challenged. The court found that an 18 months adjustment adequately reflected the relevant considerations which were correctly identified by the Judge. Lastly, the imposition of an MPI of six years and six months was challenged. The court found that an MPI was justified in this case for two reasons. First, like Mr Zhang, Mr Doan was involved in commercial scale drug dealing with potentially devastating social consequences. Secondly, unlike Mr Zhang, Mr Doan did not provide assistance to the authorities or show genuine remorse for his offending. An MPI was warranted in his case. No issue could be taken with its level which at 42 per cent was comparatively modest.

For these reasons, the appeal was dismissed. The application for leave to appeal out of time was granted.

Orders