R v Tran
[2020] NZHC 2633
•6 October 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-004-006965
[2020] NZHC 2633
THE QUEEN v
ALAN TRAN
Hearing: 6 October 2020 Appearances:
N R Webby & A J A Gee for Crown
R M Mansfield & H R Smith for Defendant
Sentence:
6 October 2020
SENTENCE OF PAUL DAVISON J
Solicitors:
Crown Solicitor, Auckland
R v TRAN [2020] NZHC 2633 [6 October 2020]
[1] Mr Tran, having earlier pleaded guilty to a charge of possessing the Class A controlled drug methamphetamine, for supply, you appear before the Court this morning for sentencing. Your offending relates to the 109.6 kilograms of methamphetamine which was found by Police and Customs to be in your possession.
[2]I note that you are 27 years old.
Your Offending
[3] You travelled to New Zealand from Sydney on 17 June 2019. This was your first trip to New Zealand. A fortnight after you arrived your associate Mr Michael Navarro also travelled to Auckland from Sydney and the two of you then worked together in relation to this drug operation.
[4] It appears that your role in the drug operation was that of collecting and moving methamphetamine after its arrival in New Zealand.
[5] On arrival you rented a car using your Australian driver’s licence as identification, and on 20 July 2019 you hired a truck, again using your Australian driver’s licence as identification.
[6] On 22 July 2019 you and Mr Navarro together went to rented residential premises in Chonny Crescent, Manurewa where Mr Navarro had arranged for the windows to be tinted and darkened. Later that afternoon you went in the truck you had rented to the premises of Storage King in Merton Road where you were given access to the storage units and you went into one of the units. On 24 July you and Mr Navarro went together to the Bunnings store in New Lynn where you purchased protective wear and a circular saw. Having purchased those items you then travelled to the Chonny Crescent address where you went inside and remained for over an hour before travelling to a residential address in Avondale where Mr Navarro was staying, and where you too stayed some of the time.
[7] The premises at Chonny Crescent were being used to store a large quantity of methamphetamine that you had no doubt transported from the Storage King storage unit to that address and it appears that you and Mr Navarro were together involved in
using the power tools that had been purchased and other hand tools to disassemble and access the concealed methamphetamine from the plastic pallets.
[8] On 25 July 2019 the Police and Customs executed search warrants at the Chonny Crescent address and at the rented premises in Avondale where it appears you and Mr Navarro had been staying.
[9] Inside the Chonny Crescent address were four A4 sized plastic bags containing methamphetamine and 126 plastic pallets in which methamphetamine was concealed in specially designed compartments. Two of the plastic pallets had been partially disassembled and the concealed compartments opened.
[10] Also in that house were electronic scales, plastic ziplock bags, and other items related to the processing and packaging of drugs. In a separate room there was an assembly of clandestine laboratory equipment including gas bottles and a burner, pyrex dishes, spotlights and other related equipment.
[11] Of the 126 pallets located at the Chonny Crescent address 51 of them were found to contain concealed methamphetamine. The total quantity of the methamphetamine located was 109.6 kilograms.
[12] At Mr Navarro’s Avondale address the Police located approximately $70,000 in cash concealed in the dishwasher. Also there were some of your personal possessions. At the hotel in central Auckland where you had been staying, the Police search located the keys in your room for the Chonny Crescent address and a Bunnings receipt for the purchase of a power tool was located in your rental car.
[13] The 109.6 kilograms of methamphetamine was analysed by the ESR and found to have a purity level of 80 per cent. The total value of the methamphetamine located by Police and Customs at Chonny Crescent was between $29 million and $54 million. The Crown says that based on the social cost calculation applied in Vea, the total social cost to New Zealand of the methamphetamine seized in this case would be around
$135,794,400.1
1 R v Vea [2019] NZHC 3422 at [5].
[14] You were arrested on 25 July 2019, shortly after that Police and Customs search was undertaken.
Personal Circumstances
[15] You have sworn an affidavit, which has been filed and presented to the Court this morning. In it you have outlined your background and provided an explanation for your offending and you have elaborated on matters which were covered in the pre-sentence report.
[16] You have explained that you grew up in Sydney. Both your parents are Cambodian, they met and were married in Cambodia before fleeing to Australia as effectively refugees to escape the genocide in Cambodia that was taking place in the late 1970’s. You explain that you felt pressure to succeed, after your parents had arrived in Australia with nothing in terms of money and assets. You have explained that you were bullied at school and you moved from one school to another school on two or three occasions and that you fell into the wrong crowd at school. You yourself became something of a bully, you started skipping classes, drinking and smoking, and acting in a way which was taking you certainly down the wrong pathway in terms of a productive future. After you left school, which you did having secured some secondary school qualifications, you worked first of all as an Australian Post warehouse employee at a warehouse operated by that organisation, before moving to other warehouse jobs and at one stage training as an apprentice chef, something that you did not pursue. You were unemployed when you met Mr Navarro through some mutual friends.
[17] In early 2019, you say that you ran into Mr Navarro at a social event in Sydney and, whilst talking to him, explained that you were not in full-time employment. You say that he told you that he had been asked to set up a warehouse in Auckland, and offered you a job. You said that he told you that you would be paid a fixed sum of AUD 10,000 if you were to get on board and join him in the project. You say that he told you the project would only take two months and that you would be required to inspect a new warehouse and complete any manual labour jobs and transport any equipment required to ready the warehouse for use. You say that Mr Navarro’s boss
was to cover the costs, and that would include covering the cost of your accommodation.
[18] You say that at the beginning of your involvement with Mr Navarro you had no real idea that drugs were involved in the work that you were going to do. However, you became increasingly suspicious. You say that it was not until you saw the white powder inside the plastic pallets that were being extracted from the concealed sections of the pallets that you knew that you were involved with drugs, methamphetamine, and at that point you appreciated just exactly what you had become involved in. You say however that you were unaware of the total amount, or the total value of the drugs that you were involved with. You say that your role was to follow Mr Navarro’s directions and instructions, and that it appeared that he was receiving instructions from another person who was his boss in Australia. You describe finding yourself in a situation where you realised you were well and truly out of your depth, and you were then afraid to leave or abandon the project because of your fear of violent repercussions for you from other members of the drug syndicate.
Approach to sentencing
[19] I will first determine an adjusted starting point for your offending, in accordance with the Court of Appeal’s guidance in the case of Zhang v R.2 In that decision, the Court of Appeal established five bands into which methamphetamine-related offending can be placed, having regard to the quantity of drug involved in the offending, and the Court there set out the range of potential penalties for offending relative to each band. The Court confirmed that the quantity of the illegal drug is an important measure of culpability, as quantity is an indicator of the commerciality and of the harm that the drug will cause if distributed into the community.3
[20] However, the quantity of the methamphetamine is not the sole determinant of culpability. I must also carefully consider your particular role in the offending. In Zhang, the Court of Appeal divided the role played by offenders into three categories:
2 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
3 At [104].
lesser, significant, and leading. The nature of the role you played will inform my assessment of the gravity of the offending, and of where it should be placed within the band for the purpose of determining the appropriate sentence to be applied and imposed upon you.
[21] Once I have determined the adjusted starting point, I will then adjust that starting point to take account of any aggravating or mitigating factors personal to you, as well as your guilty plea.4 By this process I will arrive at the end sentence to be imposed subject to further discounts.
[22] Finally I will consider whether a minimum period of imprisonment should be imposed, pursuant to s 86 of the Sentencing Act 2002.
[23]In sentencing you, I will have regard to the following purposes of sentencing:5
(a)To hold you accountable for the harm done to the community;
(b)To promote in you a sense of responsibility for, and an acknowledgement of, the harm that you have caused;
(c)To denounce your conduct;
(d)To deter both you, and other persons, who may be minded to commit like offences, from committing the same or a similar offence;
(e)To assist you in your rehabilitation and reintegration into the community in due course; and
(f)To protect the community from you, and the harm you have caused.
[24]In terms of the relevant sentencing principles, I must:6
4 Moses v R [2020] NZCA 296.
5 Sentencing Act 2002, s 7.
6 Section 8.
(a)Take into account your particular culpability, and the gravity of the offending in your case;
(b)Take into account the seriousness of your offending by comparison with other types of offences;
(c)Take into account the general desirability of consistency with other types of offending of a like kind and type;
(d)Impose a sentence near to the maximum prescribed for the offence where the offending is near to the most serious of cases for which the penalty is prescribed, unless circumstances relating to you make that inappropriate;
(e)Consider whether there are any matters relating to you that mean a sentence that would otherwise be appropriate would, in your case, be disproportionately severe for you.
Crown Submissions
[25] Mr Webby, for the Crown, submits that the quantity of methamphetamine in this case, along with your role, justifies the Court adopting a starting point of 22 years’ imprisonment.
[26] Mr Webby submits that based on quantity alone, you are placed squarely over the threshold and well within the band five in Zhang, which provides that the appropriate starting point for the offending is between 10 years and life imprisonment.
[27] In terms of your role in the offending, Mr Webby submits that you were more than a mere “catcher”, given that you played an active role in transporting and extracting the methamphetamine from the plastic pallets. Mr Webby points particularly to the evidence of you renting the truck, transporting the methamphetamine between locations, and then to the evidence of the materials and equipment found at the residential address which were typically used to package methamphetamine for supply and sale. Other evidence referred to by the Crown
includes the fact you were clearly trusted and relied on to act with little supervision to carry out your role here in New Zealand.
[28] Mr Webby contends that your offending was similar to that of Mr Zhang in Zhang v R. Although the quantity of methamphetamine at issue is much higher in your case, Mr Webby submits that the offending is nonetheless similar. That is because in both cases, the defendants had an operational functioning, both travelling to New Zealand in order to receive concealed shipments of methamphetamine.
[29] From the starting point of 22 years’ imprisonment, Mr Webby essentially withheld any detailed submissions on mitigation because at the time he was preparing his written submissions there was very little information to that effect. At the hearing today, he maintains the position that there is little in the way of mitigation that would apply to you in terms of your personal factors. However, he accepts that a small discount for the fact you are a foreign national who will be imprisoned in New Zealand, would be an appropriate factor to reduce your sentence. The Crown accepts that a 25 per cent discount from the notional starting point sentence for your guilty plea should be allowed.
[30] Finally, the Crown submits that a minimum period of imprisonment (MPI) of 50 per cent is appropriate in your case, or at least half, as it was put in the Crown submissions. That is because of the large quantity of methamphetamine, and the particular need to deter other offenders from this sort of behaviour.
Defence Submissions
[31] Mr Mansfield, on your behalf, is in substantial agreement with the Crown as regards the appropriate starting point to be adopted. Mr Mansfield suggests the adoption of a 21 year starting point, just one year difference from the starting point submitted by the Crown as being appropriate. Mr Mansfield submits that the role you played was significantly less culpable than that of Mr Navarro and he submits that you were not an important player in the organisation behind the drug operation or the activities in New Zealand. Mr Mansfield submits that your role should be assessed as being at a low-level, and that you were largely kept in the dark about the full extent and seriousness of the drug related activities that you were involved with. He submits
that you had no decision-making power and that you were really something in the nature of a worker doing what you were told and he submits that it has not been established that you were to receive a significant financial benefit, the sum of AUD 10,000 is the extent of the financial benefit established on the material before the Court.
[32] Mr Mansfield submits that an appropriate starting point then to be considered should be consistent with R v Leung, where for defendants who played a lesser role in the importation of almost exactly the same amount of methamphetamine, a 21 year starting point was adopted by the sentencing Judge.
[33] From that 21 year starting point, Mr Mansfield submits that a 15 per cent discount should be allowed to reflect your previous good character and the particular burden that a lengthy term of imprisonment will have on you, as a foreign national who will be imprisoned here in New Zealand separated from your family. Mr Mansfield points out that whilst travel between New Zealand and Australia was a matter that was undertaken fairly readily, at present at least travel between the two countries is severely restricted, if not impossible, and for you that would limit the opportunities of any contact between your family and you during the course of you serving a term of imprisonment.
[34] Mr Mansfield also submits that the Court should apply a 25 per cent discount in recognition of your guilty plea. Finally, Mr Mansfield submits that an MPI should not be imposed in your case and it is unnecessary. He submits that because this is an instance of on-off instance offending, that you have a previous good record and you have good prospects of rehabilitation, and this being involvement at the lower end of the scale, are matters which should combine to satisfy the Court that an MPI need not be imposed in your case.
Starting Point
[35] As I have said, both counsel are in substantial agreement regarding the appropriate starting point; they are only apart by one year.
[36] The quantity of methamphetamine of just over 109.7 kilograms, places your offending, as has been submitted and I accept, well within the fifth band described in Zhang, and the appropriate starting point will accordingly fall between 10 years’ imprisonment and life imprisonment.
[37] Determining the appropriate starting point within that band is informed by an assessment of the seriousness of your role and the nature of your activities. The Crown submits that your role should be classified as falling within the “significant” classification; the defence submits that your role should be appropriately classified within the “lesser” category as described in Zhang.
[38] In my view, your role was more serious than that of a mere catcher. Although you claim not have known the true nature of the work you had been asked to undertake when you first arrived in New Zealand, it very soon must have become apparent to you that you were involved in dealing with methamphetamine here in New Zealand. I do not mean dealing with it in a “sales” sense. I mean transacting it, moving it and processing it. And in my view the AUD 10,000 sum that you were to be paid to assist Mr Navarro must have provided you with some indication as to the nature of your work. You were tasked with collecting and moving the methamphetamine and you rented a truck for that purpose. You then went to the storage unit where the plastic pallets were located and you were involved in moving the pallets from the storage unit to the Chonny Crescent address. You then worked alongside Mr Navarro to extract the methamphetamine from the plastic pallets in which it was concealed. To do that, you and Mr Navarro went to Bunnings and bought some tools and assembled other items necessary to carry out the work. The items located at Chonny Crescent included electronic scales and plastic bags which show that it is likely that you were also tasked with the activity of packaging and preparing the drugs for supply. There is no evidence that you were to be involved in any on-selling of it but certainly it can be inferred that you were to be involved in the packaging of it in preparation for it to be sold.
[39] You claim in your affidavit that you did not come to New Zealand with knowledge that that was your purpose. You say that you only found yourself involved in a large-scale methamphetamine operation after you had arrived and started work to remove the methamphetamine from the pallets under Mr Navarro’s direction, and that
discovering this you realised you were in something well over your head and that you were trapped and could not get out of it. You say that you were afraid of reprisal and if you withdrew from the enterprise or alerted the police, you mind find yourself in trouble insofar as the hierarchy of the drug operation were concerned and so to avoid any of those consequences you decided to continue with your involvement and see it through.
[40] I find that explanation to be somewhat implausible. It must have been obvious what your role and work related to. I accept however that you made no attempt to conceal your identity by using your own Australian driver’s licence when arranging the rental car and in proceeding in that way you displayed a degree of naivety, but that naivety does not mean that you did not know that drugs were involved in what you were doing.
[41] I consider that your activities place you in the “lesser role” category in Zhang terms, albeit at the higher end of the range of culpability within that category. You became involved in the operation out of a degree of naivety and the opportunity to earn some money when you were otherwise unemployed, so it was the money that motivated you and you were prepared the take the risk of becoming involved in order to obtain that money. Although you were trusted with handling a large amount of methamphetamine, you were acting under the immediate direction of Mr Navarro, who was telling you what he wanted you to do and you did not have “an operational or management function within the chain”.7 You appear to have followed instructions and can be appropriately described as being a “willing pair of hands…[with] no organisational role”.8
[42]On this basis, I shall adopt a starting point of 21 years’ imprisonment.
Further adjustments to the starting point
[43]I accept that there are some mitigating factors applicable to you.
7 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [115].
8 R v Leung [2019] NZHC 3299 at [85].
[44] In particular, I accept that there is evidence of your previous good character.9 You have lived in Sydney for your whole life, and you have mainly worked in warehouse-related employment since you left school apart from a short period as an apprentice chef. This is your first offence, and you say that you had no intention of being involved in a large scale operation. You say that you feel that you have let your family down and you refer to your partner as being the best thing that happened in your life when you formed that relationship with her and you now have a very young baby with your partner. You are also yourself still comparatively young, with a future ahead of you, if you can be rehabilitated and you take a positive course in the future of your life.
[45] A lengthy term of imprisonment will be particularly difficult for you. Serving a sentence of imprisonment here in New Zealand means that you will be isolated from your family in Australia. Zhang confirms that this can be treated and dealt with as a mitigating factor for a foreign national.10 However, it is important to note that this is a discretionary consideration and it is a factor that does not justify a discount automatically.
[46] However, in my view the 15 per cent discount that Mr Mansfield urges for those factors would be too high. A key underlying purpose of the high sentences imposed for methamphetamine-related offending is the need for sentences to function as strong and unequivocal deterrence. New Zealand will not tolerate the exploitation of vulnerable members of our community by international drug organisations and their agents who import, distribute and supply methamphetamine as a purely commercial and rapacious enterprise. The social damage caused to our community and to the individuals who are the purchasers and consumers is appallingly destructive of their lives and those around them. Stern sentences for those involved in these drug related enterprises are intended to discourage foreign nationals from becoming involved. If it were not for people like you, Mr Tran, willing to take a risk and prepared to play a role in the enterprise in exchange for being well paid, the drug operations would not be viable. The organisers at the top of these enterprises will always keep well away from the drugs or their distribution and they rely on people like you willing to take the
9 Sentencing Act 2002, s 9(2)(g).
10 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [163].
risks on their behalf. A stern sentence is therefore required to send a clear signal that anyone who becomes involved, takes a risk and if apprehended faces a lengthy term of imprisonment. That is the disincentive, that is the deterrence that is an important feature of the sentence that I shall impose upon you.
[47] The Crown points to examples of discounts which have been given in cases where the offender is a foreign national, which range between something under three per cent and five per cent.11
[48] In your case, I consider that a five per cent reduction or discount to recognise the particular difficulty you face serving a sentence away from your family and your personal background as a first offender is appropriate.
[49] The next question is whether any discount should be given for your guilty plea and what it should be. Both counsel accept that a 25 per cent discount would be appropriate given that you entered your plea early, after the Crown had filed its charge notice following negotiations which resulted in the withdrawal of the charge of importation and I am satisfied that in you case it is appropriate that a full 25 per cent discount for your guilty plea is allowed.12
[50] With a total reduction to your starting point of 30 per cent, your sentence is reduced from a starting point of 21 years to 14 years, seven months’ imprisonment.
Minimum Period of Imprisonment
[51] The final question is whether a minimum period of imprisonment should be imposed and, if so, what it should be.
[52] Section 86 of the Sentencing Act relevantly provides that where a court imposes a sentence of more than two years’ imprisonment, it may at the same time order that an offender serve a minimum period of imprisonment that is longer than the period that would otherwise apply, that being one third of the sentence, before you
11 Mingsisouphanh v R [2018] NZCA 571; R v Scott [2020] NZHC 68. Also see Chair v R [2020] NZCA 202 at [34].
12 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
would become eligible to apply for parole. However, an MPI must not be applied as a matter of routine. Each case must be determined on its own facts, and a decision based on a reasoned analysis.
[53] In this case, if you were to be eligible for parole after serving one-third of your sentence, in my view this would not meet the sentencing objectives set out in s 86(2) of the Sentencing Act. Those objectives are the need to hold you accountable for the arm you have done to the community, the need to denounce your offending, and to deter you and others from possessing large quantities of methamphetamine for supply. While I do not consider it likely that you pose any significant future risk to the community, the seriousness of your offending is of particular importance and there is a clear need to deter you and others from offending in this way.
[54] The quantity of methamphetamine in this case indicates that this was a significant commercial dealing. As I have said, the Crown have filed material to show that the total value of methamphetamine is somewhere between $29,000,000 and
$54,000,000 or $55,000,000. The total cost to society is in excess of $135,000,000.13 So those are substantial sums and the scale of this operation is reflected in those amounts and the extent of the misery and destruction of lives in our community that that quantity of methamphetamine has the potential to cause is profound.
[55] It is this quantity of methamphetamine that really underlies my assessment and determination in relation to an MPI because it significantly increases and illustrates the gravity of your offending, and makes the purposes of deterrence, denunciation and accountability centrally important in the determination of the sentence and MPI to be applied. As the Court of Appeal noted in Zhang:14
it is deterrence, denunciation and accountability that are likely to be at the forefront of decisions in drug cases involving the imposition of a minimum period of imprisonment. That in turn means that as a general rule, lengthy minimum periods of imprisonment are properly reserved for cases involving significant commercial dealing.
13 Supplementary Crown Memorandum dated 5 October 2020.
14 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [169].
[56] That in turn means that as a general rule lengthy periods of imprisonment are properly reserved for cases involving significant commercial dealing. This is clearly one of those.
[57] On this basis, and having regard to the nature of your offending and the scale of your offending, I consider that a minimum period of imprisonment of seven years is required in order to meet the relevant sentencing objectives set out in s 86(2) of the Sentencing Act.
Result
[58] Mr Tran, I now sentence you to a term of imprisonment of 14 years, seven months’ imprisonment. You are to serve a minimum period of imprisonment of seven years.
Supplementary Orders
[59] I make an order under s 32(1) of the Misuse of Drugs Act 1975 in respect of all of the items found, apart from the $70,000 sum. The items are those set out in Appendix One of the Crown submissions.
[60]Mr Tran, you may now stand down.
Paul Davison J
6