Hoang v R
[2016] NZCA 335
•18 July 2016 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA668/2015 [2016] NZCA 335 |
| BETWEEN | LINH TRAN DIEN HOANG |
| AND | THE QUEEN |
| Hearing: | 23 June 2016 |
Court: | Ellen France P, Mallon and Toogood JJ |
Counsel: | P J Kaye for Appellant |
Judgment: | 18 July 2016 at 10 am |
JUDGMENT OF THE COURT
AAn extension of time to file the appeal is granted.
BThe appeal against sentence is allowed. The sentences of 18 years’ imprisonment imposed on count 4 (importing methamphetamine), count 6 (supplying the imported methamphetamine) count 8 (supplying methamphetamine), and count 10 (supplying methamphetamine) are quashed and replaced with concurrent sentences of 17 years’ imprisonment. The minimum periods of imprisonment of eight years imposed on those counts are confirmed. All other sentences are confirmed, to be served concurrently.
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REASONS OF THE COURT
(Given by Toogood J)
Following a jury trial in the Auckland District Court, Judge Ronayne sentenced Linh Tran Dien Hoang to an effective end sentence of 18 years’ imprisonment, with an order that he must serve a minimum period of eight years, on charges of conspiring to import and importing methamphetamine; conspiring to supply and supplying methamphetamine; conspiring to manufacture methamphetamine; cultivating and selling cannabis; stealing electricity (in association with the cultivation offending); and participating in an organised criminal group.[1] Mr Hoang appeals against his sentence on the ground that it is manifestly excessive. He argues primarily that the Judge erred in determining the weight of the imported methamphetamine and, therefore, erred by using a sentence starting point that was too high. He also challenged the order for a minimum period of imprisonment but, responsibly, Mr Kaye did not pursue that point at the hearing.
The relevant facts
[1]R v Hoang [2015] NZDC 15131. Mr Hoang had pleaded guilty at the beginning of the trial to two counts of cultivating cannabis, two counts of selling cannabis and two counts of theft of electricity.
In his written submissions, Mr Downs helpfully provided a summary of the offending, taken from Judge Ronayne’s sentencing notes. It was not disputed by Mr Kaye and we are content to rely on it accordingly.
Mr Hoang was a senior member of an organised criminal syndicate. His primary associates were his co-offenders, Cong Huang Tran and Graeme Banaba. The police identified that others were involved but they were either never in New Zealand or no longer in this country.
Cannabis offending
On 17 August 2012, a police helicopter crew operating an infrared camera picked up a significant heat source coming from a house in Glenfield. In the covert observation of the property which followed, the police identified between eight and 10 people involved in the cultivation and supply of cannabis. The enterprise took place in eight residential properties that had been converted for the cultivation of cannabis. The roles taken by the offenders included renting properties; establishing utilities to enable cultivation; tending to the plants to ensure the maximum yield from them; and harvesting and selling the crop. Mr Hoang was involved in the management of the houses and he was identified as having been responsible for establishing bypassed electricity supplies to the houses. Mr Hoang also used his links to the Vietnamese community in Canada to recruit other people to come to New Zealand to operate the cannabis houses.
A search of six properties on 19 February 2013 revealed sophisticated indoor hydroponic cannabis cultivation operations from which over 600 cannabis plants of varying stages of maturity were seized. The police found 300 grams of cannabis at one address. Mr Hoang disclosed during an intercepted telephone conversation that he could sell a pound of cannabis (approximately 453 grams) for between $3,300 and $3,400. It was established that electricity to the value of $59,228.34 had been diverted at the six addresses for the purposes of the cannabis operation.
Conspiracy to import methamphetamine
On 11 December 2012, the Canadian Border Security Agency (CBSA) in Vancouver intercepted a shipment of 12 shock absorbers containing a total of 2.861 kilograms of methamphetamine. Three days later, CBSA intercepted a shipment containing a further 12 shock absorbers. These contained 3.889 kilograms of methamphetamine. The shipments were arranged and managed by Mr Hoang and his co-offenders Messrs Tran and Banaba. The Canadian seizure led to the group being placed under surveillance and investigation, which revealed the men meeting regularly to discuss matters relating to the importations.
The fact that the shipments of methamphetamine never left Canada resulted in Mr Hoang making frequent contact with the courier firm and New Zealand Customs, and there were phone calls to an associate in Canada. Mr Hoang had subsequent conversations with his associates about both the methamphetamine and cannabis growing operations. The methamphetamine seized by the Canadian authorities was found on analysis to be of very high purity.
Importation of methamphetamine
During the investigation, New Zealand Police and Customs identified three previous shipments of shock absorbers from Canada. Mr Hoang and a companion were identified on closed-circuit television as having uplifted one of those shipments from a courier depot on 31 October 2012 in Manukau. During a subsequent police search of a property controlled by Mr Hoang a cellphone was located. It contained images of the appellant, of four shock absorbers being deconstructed and of methamphetamine being removed from the shock absorbers in similar packaging to those of the shipments intercepted in Canada.
Supplying methamphetamine
Mr Hoang was convicted of a representative charge of supplying the methamphetamine that he had imported and also on four specific counts of supplying 57 grams of methamphetamine. He was also convicted on a count of supplying five grams of methamphetamine to his co-offender Mr Banaba for $3,800.
Conspiracy to manufacture methamphetamine
This charge was based on text messages and phone calls between Mr Hoang and his Canadian associate during which the pair discussed sending a list of ingredients for making methamphetamine and how Mr Hoang was to check their availability in New Zealand. The associate said he would send a cook and a cook’s assistant to New Zealand to manufacture the methamphetamine and they discussed the immigration implications.
The District Court
In sentencing the appellant, Judge Ronayne identified Mr Hoang’s lead offences as the importation, manufacture and supply of methamphetamine. Postal records showed that the total weight of the parcel seen in the photographs on Mr Hoang’s phone was 19.05 kilograms. The package was never recovered but the Judge estimated the weight and purity of the imported drugs by reference to the parcels that had been intercepted in Canada. Basing his calculations on the methamphetamine comprising approximately 10 per cent of the total weight of the package, the Judge inferred that around the same percentage of that weight would have been methamphetamine in the package that was imported into New Zealand. He assessed the weight at 1.96 kilograms.
The Judge also noted, however, that it appeared from the photos that a kilogram of methamphetamine was being removed from the shock absorbers. The Judge also assessed the purity levels as being of the order of 94 per cent, based on analysis from the Canadian authorities. But Mr Downs properly acknowledged that the analysis in Canada was carried out on a different basis from the way in which it is usually done in New Zealand. He agreed that we should assume for the purposes of the appeal that the purity was unspecified but not less than 60 per cent, which is the commonly accepted basis in cases before the New Zealand courts. In any event, the purity does not seem to have been an issue in the Judge’s assessment of the appropriate sentence and Mr Kaye did not make any point of it.
Basing his view of the seriousness of Mr Hoang’s offending on the lead offences, Judge Ronayne set a starting point of 19 years, taking into account a number of cases including R v Wong[2] and R v Huang[3] and the guideline judgment in this Court, R v Fatu.[4] To reflect the other offending, being the extensive cultivation and sale of cannabis and “huge thefts of electricity”, the Judge took a starting point of an additional seven years, bringing the total starting point to 26 years.[5] He then discounted six years to reflect the totality of the offending and gave Mr Hoang a further discount of two years for his lack of previous convictions.
[2]R v Wong [2009] NZCA 332.
[3]R v Huang HC Auckland CRI-2010-092-14540, 9 November 2010. On appeal this Court varied the sentence by imposing a minimum period of imprisonment: Solicitor-General v Huang [2011] NZCA 436.
[4]R v Fatu [2006] 2 NZLR 72 (CA).
[5]R v Hoang, above n 1, at [86].
Noting that there was a particular need for denunciation and deterrence of this sort of offending, the Judge concluded that a minimum period of imprisonment should be imposed. Mr Hoang was therefore sentenced to concurrent terms of 18 years’ imprisonment with a minimum period of imprisonment of eight years on the charge of importing methamphetamine, the representative charge of supplying the imported methamphetamine and the other two charges of supplying methamphetamine. Lesser concurrent sentences of imprisonment were imposed on the other counts.
Submissions for the appellant
At the hearing, Mr Kaye focused his submissions on the calculation by the Judge that the importation had involved a quantity of just under two kilograms of methamphetamine. That is four times the amount that would place the sentence starting point at the bottom end of band 4 in R v Fatu.[6] In Mr Kaye’s submission, the Judge could not properly have determined beyond reasonable doubt that more than one kilogram of methamphetamine was involved, consistently with the inferences to be drawn from the photographs on Mr Hoang’s phone. On that basis, Mr Kaye argued for a starting point of around 15 years. Realistically, he did not challenge the uplift of seven years’ imprisonment for the other offending. Counsel argued that the discount of six years to reflect the totality of the offending was appropriate. Mr Kaye also submitted that the two-year discount for prior good behaviour was available to the Judge.
Discussion
[6]R v Fatu, above n 4, at [36].
The Judge was correct to acknowledge that both the methamphetamine and cannabis offending involved premeditation and a very high degree of planning and sophistication. He also correctly identified Mr Hoang as having been at the top of the organisation in New Zealand. But, as Mr Downs fairly acknowledged in the course of the hearing, the Judge mis-stepped when he accepted the Crown’s suggestion of a 19-year starting point based on a total quantity of 1.96 kilograms of methamphetamine for the importation. In determining facts for the purposes of imposing a sentence, a Judge is required to be satisfied beyond reasonable doubt of any facts that are relevant to the assessment of the appropriate sentence, so long as they are not inconsistent with any verdict of the jury.[7]
[7]Sentencing Act 2002, s 24(2); R v Heti (1992) 8 CRNZ 554 (CA) at 555–556 and Robertson v R [2016] NZCA 99 at [75].
Bearing in mind the appearance of the unpackaged shock absorbers in the photographs from Mr Hoang’s cellphone, which the Judge noted, we consider the Crown to have proved beyond reasonable doubt only that approximately one kilogram of methamphetamine was imported. Given the significance of the weight of methamphetamine in calculating an appropriate starting point,[8] we consider that a starting point of 16 years’ imprisonment for that offending should have been adopted to reflect Mr Hoang’s position at the top of the New Zealand organisation.
[8]R v Fatu, above n 4, at [36].
The need to reflect Mr Hoang’s role is the reason why we are not persuaded that the starting point should be at the 15-year level Mr Kaye sought. That role marks Mr Hoang out from his co-conspirator, Mr Banaba.[9] This Court, in allowing Mr Banaba’s appeal in part, said a starting point of 13 years’ imprisonment should have been adopted in relation to three charges of conspiracy to import large amounts of methamphetamine (more than 6.75 kilograms). The Court considered an uplift of four years for cannabis offending was appropriate with an adjustment for totality to a 15-year starting point. The amounts of methamphetamine involved in that offending are highly relevant but, first, both the Court and sentencing Judge accepted that Mr Banaba’s role in the conspiracy was not as great as that of Mr Hoang rather, he was “the man on the ground”.[10] Secondly, the Court said the conspiracy was well-advanced and so only a small discount (five to 10 per cent) was warranted. That would apply to the conspiracy charge on which Mr Hoang was convicted as well.
[9]Banaba v R [2016] NZCA 122.
[10]At [11].
Similarly, in Chen v R, another case relied on by Mr Downs, the appellant was sentenced for importation and possession of methamphetamine for supply.[11] The amount involved was nearly 3 kilograms. This Court upheld a starting point of 18 years’ imprisonment comprised of 15 years’ imprisonment for the importation and three years for the other offending. Mr Chen was nowhere near the bottom of the enterprise in that case, but he was not a mastermind, organiser or senior manager.[12]
[11]Chen v R [2010] NZCA 552.
[12]At [17].
Adding an uplift of seven years’ imprisonment for the other offending, which was acknowledged by both counsel to be appropriate, makes the total starting point for all offending one of 23 years’ imprisonment. We think an appropriate adjustment for totality would be to reduce the starting point by four years’ imprisonment.
We acknowledge Mr Downs’s submission that a further discount of two years’ imprisonment to reflect the absence of prior convictions might be seen, in the context of major drug offending, as “kind hearted” but we are not disposed to interfere with it. In taking that view we acknowledge that Mr Hoang will be required to serve his sentence a long way from his home and his family.
The Court must allow an appeal if it is satisfied that for any reason there is an error in the sentence imposed on conviction and a different sentence should be imposed.[13] Reaching an appropriate total effective end sentence of 17 years’ imprisonment on the basis of the correct view of the quantity of the importation means that the term of 18 years’ imprisonment imposed in the District Court must be regarded as manifestly excessive.
[13]Criminal Procedure Act 2011, s 250(2).
Serious drug offending of this kind calls for the imposition of a minimum period of imprisonment.[14] The period of eight years imposed by the Judge is less than 50 per cent of the total end sentence that we consider to be appropriate. There is no need to alter it.
Result
[14]R v Zhou [2009] NZCA 365 at [18]–[19].
We grant an extension of time to file the appeal. We allow the appeal against sentence. The sentences of 18 years’ imprisonment imposed on count 4 (importing methamphetamine), count 6 (supplying the imported methamphetamine), count 8 (supplying methamphetamine) and count 10 (supplying methamphetamine) are quashed and replaced with concurrent sentences of 17 years’ imprisonment. The minimum periods of imprisonment of eight years imposed on those counts are confirmed. All other sentences are confirmed, to be served concurrently.
Solicitors:
Crown Law Office, Wellington for Respondent
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