Hoang v R - [2016] NZCA 335

IN THE COURT OF APPEAL OF NEW ZEALAND

CA668/2015
[2016] NZCA 335

BETWEEN	LINH TRAN DIEN HOANG Appellant
AND	THE QUEEN Respondent

Hearing:	23 June 2016
Court:	Ellen France P, Mallon and Toogood JJ
Counsel:	P J Kaye for Appellant M D Downs for Respondent
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.…

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 Hoang v R

Details

AGLC: Hoang v R [2016] NZCA 335
Case: [2016] NZCA 335
Decision Date: 18 July 2016 at 10 am

CaseChat Overview and Summary

Linh Tran Dien Hoang appeals against the sentence of 18 years' imprisonment imposed by Judge Ronayne in the Auckland District Court. The appeal contends that the sentence is manifestly excessive. The Court of Appeal allowed the appeal, reducing the sentence to 17 years' imprisonment while maintaining the eight-year minimum period of imprisonment. The remaining sentences are confirmed, to be served concurrently.

The appeal hinges on the Court's determination of the weight of methamphetamine imported by Hoang, which significantly affects the starting point of the sentence. Hoang argues that the Crown failed to prove beyond reasonable doubt that more than one kilogram of methamphetamine was involved in the importation. The Court found that the Crown had only proven beyond reasonable doubt that approximately one kilogram of methamphetamine was imported. Consequently, the starting point for the importation charge should have been 16 years' imprisonment, rather than the 19 years' imposed by the District Court. This adjustment, combined with the appropriate uplift for other offending and discounts for totality and prior good behaviour, results in a total starting point of 23 years' imprisonment. An adjustment for totality reduces this to 19 years' imprisonment. Given the correct starting point, the 18-year sentence imposed by the District Court is deemed manifestly excessive.

The Court granted an extension of time to file the appeal and allowed the appeal against sentence. The sentences of 18 years' imprisonment imposed on counts 4, 6, 8, and 10 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.

Orders