R v Tran
[2016] NZHC 680
•13 April 2016
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CRI-2015-004-9391
[2016] NZHC 680
THE QUEEN v
TUYET THI TRAN
Hearing: 13 April 2016 Appearances:
N R Webby for Crown
R P Chambers for Defendant
Sentence:
13 April 2016
SENTENCE OF DAVISON J
Solicitors:
Meredith Connell, Auckland
R v TRAN [2016] NZHC 680 [13 April 2016]
Background
[1] Ms Tran, you appear before me for sentence today after being found guilty by a jury on two charges of importing into New Zealand a Class A controlled drug, methamphetamine, and two charges of possessing methamphetamine for the purpose of supply. The maximum penalty in respect of each charge is life imprisonment.
The facts
[2] You are a Canadian national living in Toronto, having moved there from Vietnam some 26 years ago.
[3] On the morning of Sunday 12 September last year, you arrived at Auckland International Airport on a direct flight from Vancouver with two suitcases, one large one small, and a carry-on piece of luggage.
[4] You participated in a routine enquiry conducted by an officer of the New Zealand Customs Service (Customs Officer); which led to your luggage being subjected to a search.
[5] Upon examination of your luggage, the emptied suitcases were found to weigh approximately five kilograms more than their expected weight according to the manufacturer’s specifications. Located inside the lining of the larger suitcase were two packages containing a combined weight of 3.195 kilograms of methamphetamine. Located inside the lining of the smaller suitcase were two packages containing a combined weight of 1.810 kilograms of methamphetamine. In total, you imported into New Zealand just over five kilograms of methamphetamine. That amount has a street value of up to $5 million.
[6] When questioned, you told the Customs Officers that you had travelled to Auckland to see your boyfriend, Stephen Le, whom you had met earlier in the year on Facebook and had formed a long-distance relationship with. You said Mr Le was also Vietnamese, and was living here in Auckland.
[7] You told the Customs Officers that this was your second visit to New Zealand to see Mr Le. A few months prior, in July 2015, you had arrived at Auckland for the first time after accepting an offer from Mr Le to pay for your airfares so that you could meet him in person for the first time. You explained that at Mr Le’s request, you had met with a man who you did not know at a carpark in Toronto and the man had provided you with two suitcases to bring to New Zealand to give to Mr Le. You were also provided with air tickets and a SIM card with a unique New Zealand number for you to use upon arrival in Auckland. When you arrived, in accordance with arrangements, you went to a central city hotel here in Auckland, and remained waiting there for two or three days until a man, again unknown to you, came to collect the suitcases from you.
[8] Sometime after that had taken place, you met with Mr Le and discovered that he had misled you as to his real identity; he had used a false name and was not the same person shown on his Facebook account profile picture that you had been using in communications with him. He told you his name was “Tommy”.
[9] You remained here in Auckland for some five days or so before returning to Canada and you explained that Mr Le provided you with a new set of suitcases for you to take with you and use on your return journey to Canada.
[10] You travelled to Auckland for the second time in September last year. You said that, once again, Mr Le had asked you to come to Auckland to see him, having paid for your airfare and accommodation.1 Again, shortly before travelling from Toronto, you say you met with a man who was unknown to you in a carpark in Toronto and he handed you two suitcases for you to use and bring with you to New Zealand. It is in relation to this second trip to New Zealand, and the methamphetamine located in the suitcases that you brought with you, that you were charged, found guilty and are being sentenced here today.
[11] After the methamphetamine had been located in the suitcases by Customs, you then agreed to participate in a controlled delivery to the hotel which had been pre-
1 Ms Tran was given CAD$3,470 in cash to make the purchase.
booked by you, on the recommendation of Mr Le.2 Nothing resulted from that controlled delivery investigation and no-one showed up to uplift the suitcases from you.
Pre-sentence report
[12]I now refer to the pre-sentence report which has been prepared.
[13] You are 41 years of age. You told the probation officer that you have been married twice, and that your most recent marriage ended about three years ago. You have two adult sons, aged 22 and 20 years, both of whom are living in Toronto. In Toronto, you worked as a fingernail technician and beautician.
[14] You told the probation officer that the only person you know to be living in New Zealand is “Tommy” or Mr Le, the person who has obviously led you into this and caused you to be in the position that you now are in. You said that you now realise that you had been used by him.
[15] It is noted in the pre-sentence report that you do not accept responsibility or culpability for your part in the offending. You maintain that you did not know you were importing drugs into New Zealand in the two suitcases that you brought with you from Canada.
[16] It is inconceivable that you would not have had questions in your mind about the purpose of these trips when you were being asked to take possession of suitcases from a man you did not know and bring them to New Zealand, on not just one but two occasions. However, that is the position that you have adopted, as noted by the pre- sentence report.
[17] The pre-sentence report also notes that you do not consume alcohol and you say that you have never consumed illicit drugs.
2 From 13 September to 23 September 2015.
Submissions
[18] In its submissions the Crown says that, in setting the starting point for the purpose of deciding the sentence to be imposed upon you, I should take a global approach since all of the charges essentially relate to the same single series of events and incident. The Crown submits that I should adopt a starting point in the vicinity of 15 years’ imprisonment.
[19] In the Crown’s submissions, the factors relevant to your offending are the extent of commerciality; the sophistication of drug concealment; your position within the network; and the high degree of premeditation that was an inherent feature of your offending. The Crown refers me to the case of R v Tyniec, which I shall consider in some detail presently. The Crown relies on that case in support of its submission that your role was a very important one to the drug supply chain because, without people like you, the importation of methamphetamine and other drugs into New Zealand would be difficult to achieve.3
[20] I now turn to circumstances personal to you. The Crown accepts that there are no aggravating factors, and that modest discounts may be allowed for your previous good character to recognise the fact that, as a foreign national without any New Zealand contacts, your experience of imprisonment is likely to be more difficult than if you were in your own country, and closer to your family.
[21] Furthermore, the Crown submits that I should impose a minimum period of imprisonment of 50 per cent of whatever sentence of imprisonment I impose, requiring you to serve at least half of the term imposed.
[22] Your counsel, Mr Chambers, submits that I should adopt a starting point of 12- and-a-half years’ imprisonment. In his submission, you had no involvement in the drug world, and you were naïvely duped by a person who knew of and took advantage of your vulnerability. Mr Chambers submits this contention is supported by the fact that you made no financial or commercial gain from the role that you played. He further submits that you are entitled to discounts or reductions from the starting point
3 R v Tyniec HC Auckland CRI-2011-092-006373, 9 August 2011.
to recognise your good character and the assistance given to the authorities. He submits that, as you are a foreign national, you should receive a discount to recognise the fact that your experience of serving a term of imprisonment here in New Zealand will be comparatively more severe than serving an equivalent sentence in your own country.
[23] Mr Chambers submits that no minimum term of imprisonment is warranted, saying that the mandatory one-third of the term of imprisonment “should suffice” and meet the ends of justice. He also emphasises the statutory requirement upon this Court to impose the least restrictive outcome upon you in the circumstances.
Approach to sentencing
[24] The sentencing process requires me to take a two-step approach. First, I must establish what is termed a “starting point”. That requires me, first, to look at the nature and extent of your offending. Because this case deals with methamphetamine offending, I am also required to follow a guideline case called R v Fatu which sets out specific sentencing bands, depending on the amount of the drugs involved in the offending.4 You will hear me speak of that case, and other cases, which I will apply in deciding the starting point. Secondly, I must consider whether adjustments should be made to your starting point. Here, I will assess matters relating to your personal circumstances which may operate to either increase or reduce the sentence that I shall ultimately impose upon you.
[25] I must also take into account the purposes and principles of sentencing. In particular, I am mindful of the need to deter others from committing the same or similar drug-related offences. Because of the harm done to the community by methamphetamine, it being a socially destructive drug, denunciation and deterrence is an important purpose of sentencing. As is the need to hold you accountable and to promote in you a sense of responsibility for, and acknowledgement of, that harm and of your offending.
4 R v Fatu [2006] 2 NZLR 72 (CA).
[26] In sentencing you today, I have regard to the gravity and seriousness of your offending; the need for consistency with appropriate sentencing levels with similar offenders committing similar offences; and the requirement to impose on you the least restrictive outcome that is appropriate in the circumstances.
Analysis
Setting the starting point
[27] Ms Tran, I shall deal with the four offences together; that is, concurrently. In setting a starting point, I follow the standard approach which is, first, to determine the lead offences, being the importation charges,5 and, secondly, to increase or uplift the starting point to reflect the totality of your offending.
[28] It is common ground between both Crown and defence counsel that your offending falls within what is termed band four of R v Fatu. The Court of Appeal has said that the appropriate starting point for cases falling within this band is between 12 years’ imprisonment and life imprisonment.
[29] Your counsel submits your case sits at the lower end of the band four range. I do not agree. The Court of Appeal in Fatu said that the quantity of drug involved in the offending provides the most helpful measure of culpability.6 Band four is categorised by reference to “importing very large commercial quantities (500 grams or more)”. You, Ms Tran, imported about five kilograms of methamphetamine into New Zealand, which is, of course, well over the 500 gram level referred to in Fatu, and over it by about 10 times. I would, therefore, consider that your offending falls around the middle range of band four.
[30] Of course, in setting a starting point, regard must also be had to a number of other factors, including the role played by you, the offender. The Crown refers me to the decision of Wylie J in Tyniec, and submits that you played a similar role to the defendant in that case. In that case, Mr Tyniec, a Polish national living in Spain,
5 I note the Court of Appeal’s comment in R v Fatu, above n 4, at [22] that, all things being equal, an importer is more culpable than a supplier.
6 At [26].
imported 1.991 kilograms of methamphetamine into New Zealand. He pleaded guilty, and admitted that he had agreed to import drugs into the country because he needed the money. Among the factors Wylie J saw as being aggravating was that Mr Tyniec’s offending involved significant premeditation and planning on his part as his suitcases had obviously been modified to conceal the drugs. In that case, a starting point of 14 years’ imprisonment was adopted.
[31] However, in my view the facts of Tyniec can be distinguished from yours, because in your case the evidence did not suggest you were not motivated by financial gain. Rather, it appears that you were looking for romantic partnership and Mr Le presented himself as being interested in forming a relationship with you, and you, in this context, became involved in importing drugs into this country for him. Furthermore, Mr Tyniec admitted that he knew, as part of the process, that he would have to carry drugs across borders. In your case, and giving you the benefit of doubt, you were (at best) wilfully blind as to the contents of the suitcases that were given to you to bring into New Zealand. So, I am not satisfied that there was the same degree of premeditation in your case as there was in the case of Tyniec. Therefore, my view is that Mr Tyniec’s culpability was comparatively greater than I consider yours to be.
[32] Nor am I satisfied that there was any great degree of sophistication in respect of your offending. There is nothing to show that you had anything to do with the planning that is evident from the way in which the drugs were concealed in the suitcases. I accept, nevertheless, that careful planning was a feature of the enterprise of which you were a part.
[33] In any event, it is clear that the “mastermind” behind the operation, being Mr Le, must have reposed considerable trust and confidence in you given that it is highly likely that you had successfully completed an importation on a previous occasion on his behalf.7
7 See, R v Tshisa CA507/05, 31 August 2006 and R v Iwu [2015] NZHC 1438.
[34] Putting your personal motivations aside, the role you played as a courier or mule was equally crucial to the drug enterprise, and Wylie J’s comment in that regard applies here:8
Mules or couriers are an integral part of international drug dealing operations. The community is entitled to expect protection from people who act as couriers or mules, and this Court must impose sentences which deter couriers from trying to import drugs into this country.
[35] Considerations of commerciality are also relevant. The amount of methamphetamine you imported into this country has an estimated street value of up to $5 million. It is accepted that you were not involved in or had not participated in the higher level of the drug operation, so the inference I draw is you were not to have been financially rewarded by the fruits of the importation. On the other hand, that conclusion should also recognise that there was some evidence suggesting that you had been given money “to do the job”.9 Unlike usual couriers who are often recruited on the promise of drugs, travel and/or money, you were hopeful for a romantic affair with Mr Le. This may explain why you were willing to continue to engage in further importations for the purpose of maintaining contact with Mr Le. That is particularly so given, as you have described, the circumstances of your offending are very similar in nature to the circumstances which led to your first visit to Auckland in July last year.
[36] Taking those matters into account, I consider that an appropriate starting point to adopt is 14 years’ imprisonment.
[37] I now consider whether to apply an uplift in relation to the possession for supply charges. I do not accept counsel’s submission that the possession charges are necessarily wholly encompassed by the importation charges. They are not. You had arranged and agreed that once the importation was complete, you were to contact Mr Le (this time by using a public telephone) advising him of your safe arrival, and, presumably, the successful arrival of the bags and the undetected drugs. You had in
8 At [21].
9 Located in a series of Facebook and Viber messages later retrieved by the authorities and translated from Vietnamese to English, was a comment to the effect that Ms Tran was given money to “do the job” which she had prematurely spent.
your possession a handwritten note with what you believed to be Mr Le’s full name and contact details written upon it.
[38] It is worth noting that your conversation history with Mr Le on the Viber and Facebook apps had been deleted from your phone, presumably to help avoid detection. Consistent with the previous occasion which you described, you would have been required to await further instructions for the handing over or delivery of the drugs along the supply chain from someone who came to collect them from you at the hotel. You were obviously entrusted by the “mastermind” of this operation to ensure that the drugs reached their next intended recipient. Again, your offending in relation to possession for supply falls squarely within band four of Fatu. To recognise this offending, I propose to uplift the starting point by two years.
[39] I now consider the totality of your overall offending. The purpose of this process is to ensure that the aggregate sentence is not out of proportion to the gravity of your offending viewed as a whole. To achieve this objective, I propose to reduce the starting point by one year to reflect that the possession charges are part and parcel of the facts upon which the importation charges are based.
[40] Accordingly, I have concluded that a starting point of 15 years’ imprisonment is appropriate in the circumstances of your case.
Adjusting the starting point
[41] Ms Tran, you appear for sentence with no previous convictions and there is nothing to suggest that you have any convictions in any other jurisdiction. Accordingly, I consider that you are entitled to a discount as a “first offender”. However, the amount of reduction that is to be allowed must be modest given the fact that, as you have admitted, you have previously brought suitcases into New Zealand under very similar circumstances, and it cannot be safely said that you are to be entirely regarded as being of previous good character. In the circumstances, I allow a discount of five per cent for your previous good character.
[42] Your counsel submits you are also entitled to a discount in light of the fact that your experience in serving a term of imprisonment as a foreign national will be
disproportionally hard on you given that you have no New Zealand contacts other than the person who has put you into this position. I agree. However, I wish to explain what it is that entitles you to a discount in the circumstances. I am not satisfied that there are cultural or language barriers to the same degree as, for example, a Polish national, given you have lived in Canada for over 20 years of your adult life and have a good grasp of the English language. I do accept, however, that you will be imprisoned far from friends and family, and you will not have the kind of support that other sentenced prisoners would have.10
[43] Against that, is the Courts’ approach that foreign nationals who come to this country bringing drugs with them cannot expect any leniency given the need for deterrence, both to the offender and those who may contemplate becoming involved in the importation of drugs into the country.11 However, I am prepared to accept that your case sits outside some of the typical characteristics of a drug mule, in that you were not motivated by financial gain and it is perhaps because of your naïvety that you became involved in this business. To recognise this factor I allow a discount or reduction of four months’ imprisonment.
[44] Your counsel further submits that you are entitled to a discount for the assistance you gave to the authorities. The Crown agrees. The rationale is that there is a clear public interest that offenders should be encouraged to assist authorities to bring others to justice. Usually, the discount would apply in a context where two factors are present. First, where a defendant has provided, or promised to provide, assistance to the Police after admitting responsibility and guilt; and, secondly, where the defendant has actually and willingly assisted in the detection and conviction of offenders in circumstances where, without such assistance, the inquiry would have been more difficult and would have been likely to have consumed considerably more time and resources of the authorities, and where a satisfactory conclusion would not have otherwise necessarily been achieved.12
10 R v Soles [2014] NZHC 2665.
11 R v Wang [2014] NZCA 409 at [28]; R v Wickremasinghe HC Auckland T013408, 28 March 2003 at [38]; Jarden v R [2008] 3 NZLR 612 (SC) at [12].
12 R v Rose [1990] 2 NZLR 552 (CA) at 643.
[45] However, neither of these factors apply in your case. You were, by law, subject to a requirement to answer questions asked by Customs Officers so it cannot be said there was any extra assistance in that regard. I accept, however, that you agreed to participate in a controlled delivery exercise and sent messages from your phone in an effort to assist the authorities to contact and locate Mr Le. The weight that is to be attached to any such assistance, however, is to be assessed in context. You have maintained your innocence, causing the need for a trial. You have advanced an implausible explanation for your actions, which the jury rejected. Further, I am not satisfied that there was full or complete co-operation or assistance on your part. For example, the Police tried to access your Facebook account to identify Mr Le and your response was that you could not recall your password, with the result that the matter could not be taken any further.
[46] Furthermore, the strength of the information and evidence you gave was, in my view, not necessarily reliable. For example, you gave a physical description of Mr Le as being dark skinned, and having black hair, glasses and a goatee, which was virtually the same description you gave for the man who you said came to collect the suitcases from you on your first visit here in July last year. Of course, the investigation in this case against co-offenders was unsolved despite whatever assistance you gave.
[47] Having regard to all of what I have just said, I consider that only a modest discount is appropriate, and I allow two months reduction to recognise your co- operation, such as it was.
[48] Ms Tran, you have not expressed or demonstrated any remorse for your offending. You continue to maintain your innocence and, of course, you are not entitled to a discount for a guilty plea as you defended the charges.
Minimum period of imprisonment
[49] Finally, I turn to consider whether a minimum period of imprisonment should be imposed. The Court of Appeal has said that “it is almost invariable” in very serious drug offending cases that an order for a minimum period of imprisonment will be
made.13 Ultimately, the decision whether to impose a minimum period of imprisonment is discretionary and is to be undertaken having regard to the four factors listed in s 86(2) of the Sentencing Act. These four factors are: the need to hold you accountable for the harm done to the community; denouncing your conduct; deterring you or others from committing the same or similar offences; and protecting the community from the offender.
[50] Of those four factors and qualifying criteria set out in s 86, in my view, the objective of deterring the offender and/or other persons committing the same or similar offences is of particular application for the same reasons identified by Wylie J in Tyniec. I consider that persons who act as drug couriers or others contemplating doing so are to be emphatically and unequivocally deterred from becoming involved in that kind of conduct. Further, I consider that the imposition of a minimum period of imprisonment as a means of deterring such conduct, not only of yourself but more particularly of others, promotes this objective and, in my view, the period of imprisonment that would otherwise be imposed without a minimum period of imprisonment would be insufficient to meet that objective.
Conclusion
[51]Ms Tran, would you please stand.
[52] On the two charges of importation of methamphetamine, you are sentenced to a term of imprisonment of 13 years and nine months, with a minimum period of imprisonment of half of that, namely, six years, 10 months.
[53] On the two charges of possession of methamphetamine for supply, you are sentenced to a concurrent period of imprisonment of 11 years.
[54] The effective sentence of this Court is 13 years, nine months’ imprisonment with a minimum period of imprisonment of six years and 10 months.
13 R v Aram [2007] NZCA 328 at [78].
[55]You may stand down.
Davison J