R v Tran HC Auckland CRI 2005-004-4167

[2010] NZHC 1161

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2005-004-4167

THE QUEEN

v

LAPHAN TRAN

Hearing:         13 July 2010

Appearances: R McCoubrey for Crown

R Mansfield for Tran

Judgment:      13 July 2010

SENTENCING REMARKS OF ALLAN J

Solicitors:

Crown Solicitor Auckland r[email protected]

R Mansfield,  [email protected]

R V LAPHAN TRAN HC AK CRI-2005-004-4167  13 July 2010

[1]      Mr Tran you appear for sentence this morning on four drug related charges. There are separate charges of supplying methamphetamine and possession of methamphetamine for supply, the maximum penalty in each case being life imprisonment.   There are also charges of supplying ecstasy, and of possession of ecstasy for supply, for which the maximum penalty is 14 years imprisonment.

Factual background

[2]      On 23 December 2003, the police conducted a search of your hotel room in central Auckland, finding on that occasion a bag containing 218g of methamphetamine, three separate bags containing 142 ecstasy tablets, and $4,460 in cash.  You were not yourself located at that time.

[3]      Some seven months later, on 30 July 2004, you were stopped in Auckland while driving your motor vehicle.  At that time the police identified in your vehicle a bag which proved to contain 10g of methamphetamine, and 12 ecstasy tablets.  There were also a number of unused snaplock bags.   Before you could be arrested you wound up the windows of your car and drove off.  The car was later found in a city supermarket carpark.

[4]      A week later, on 6 August 2004, a further warranted search was conducted of rental premises occupied by you.   On that occasion the police found 130g of methamphetamine, together with 25 ecstasy tablets in a wardrobe in the master bedroom;  a number of unused snaplock bags were also found.

[5]      In summary therefore, the police located a total of 358g of methamphetamine and some 179 ecstasy tablets.

[6]      Having become aware that the police had a warrant for your arrest, you moved to Waiheke Island, where, remarkably you were able to live with your partner for several years before being located and arrested in 2008.

[7]      A formal plea of guilty was entered just a fortnight prior to trial, although the Court understands that such a plea was intimated to the Crown somewhat earlier than that.

Personal circumstances

[8]      You are 35 years old and of Chinese descent.  Your family migrated to New Zealand in 1979 as refugees from Vietnam.  You were educated here and left school with sixth form qualifications.   You have been with your partner since 2005, and together you have a four year old daughter.  There is no suggestion in this case of any gang affiliations.  Your offending appears to have resulted from inappropriate friendships and the lure of easy money.  You do not yourself use drugs, and indeed, say that you do not drink a great deal of alcohol.

[9]      You have a somewhat disappointing previous criminal record.   There are several dishonesty offences, a number of property convictions and some driving related and firearms charges.  Previously you have been the subject of a sentence of home detention which you seem to have completed successfully.     There was an earlier gambling problem, but that appears now to have been overcome.

[10]     A factor of some importance, I consider, is the existence of a committed family support network.  In addition to your partner who says she will be there for you upon your release, you have parents who have written to the Court to explain their disappointment at what has occurred, and to indicate there will be employment for you in their restaurant business when you are released.  It seems you are the only one among your siblings who has got into any kind of trouble, and that you come from a strong and stable family background.

[11]     I have also read your letter which I accept expresses your genuine remorse and determination not to offend in the future.

[12]     The writer of the pre-sentence report indicates that you are studying towards a diploma in business management while in prison and that you are manifesting signs of determination to avoid offending once you are released.

[13]     The probation officer considers you present a medium risk of re-offending, ameliorated to some degree by your family background and support.

Purposes and principles of sentencing

[14]     I take into account the provisions of ss 7 and 8 of the Sentencing Act 2002. In particular in the present context, any sentence imposed upon you must adequately reflect the need to denounce what has occurred, and to deter you and others from committing similar offences in the future.   I must also bear in mind the need to assist, insofar as I can, your rehabilitation and reintegration into the community.  In that respect I am entitled to take into account to some limited degree your personal circumstances and those of your family, but in cases of serious drug offending, such considerations are relegated in importance to the need to impose a sentence that reflects the gravity of what has occurred.

Starting point

[15]     Sentencing for Class A drug offending is governed by the decision of the Court of Appeal in R v Fatu[1].  The methamphetamine charges clearly constitute the lead offending for sentencing purposes.

[1] [2006] 2 NZLR 72 (CA)

[16]     By reason of the quantity of methamphetamine found in total, some 358g, this case falls within band 3 in Fatu which deals with the supply of large commercial quantities of between 250g and 500g.  There is no distinction for present purposes between actual supply and possession for supply.

[17]     For  band  3  the  appropriate  starting point  is  between  eight  and  11  years imprisonment.  Fatu also requires the Court to take into account the part played by the prisoner in the identified offending.  Here, the proper inference is that you were certainly not simply a street level dealer.   Quantities such as were located by the police are consistent with someone operating at a wholesale level, and I proceed accordingly.

[18]     Given  the  existence  of  a  guideline  decision,  there  is  limited  value  in considering other High Court decisions.  However, Mr McCoubrey has mentioned two cases which it is appropriate to mention briefly.  The first is R v Wang[2].  There, the  Court  of  Appeal  was  concerned  with  the  question  of  the  imposition  of  a minimum term of imprisonment but the case is of interest for present purposes because it was there accepted that a starting point of eight years was appropriate in a case which involved 78.5g of methamphetamine.

[2] [2009] NZCA 118

[19]     The second case is R v Mosley[3].  There, the Court of Appeal upheld a starting point of nine years imprisonment in respect of methamphetamine offending which involved a minimum of 322g.

[3] [2008] NZCA 510

[20]     I consider that a starting point of nine years imprisonment is also appropriate here.   In my view, however, the starting point must be adjusted upwards to some degree, in order to reflect the totality of the offending.  Here, you were dealing not only in methamphetamine but also in ecstasy tablets.  An upward adjustment of six months  imprisonment  is  sufficient  to  reflect  overall  culpability.    That  leaves  a starting point of nine and a half years imprisonment.

Aggravating and mitigating factors

[21]     Responsibly, Mr McCoubrey does not press for an uplift by reason of your list  of  previous  convictions.    I  agree  that  they  are  not  of  such  gravity  nor  so numerous as to justify an increase in the starting point.  Many of the offences are now largely historical;  none is drug related.

[22]     You are entitled to a discount for your guilty plea.  Counsel are agreed that in terms of R v Hessell[4]you do not qualify for the maximum one-third discount for a guilty plea at  the  first  reasonable opportunity.    Indeed, following  your ultimate apprehension  you mounted a challenge to the search evidence.   When that was finally abandoned in March of this year, you indicated a willingness to plead guilty,

but a formal plea was not entered until a few weeks ago, just a fortnight before trial. As has been discussed by Mr Mansfield this morning, it appears the trial would not have proceeded in any event, but that is not a factor of any significance in terms of the assessment of a discount for a guilty plea.

[4] [2010] 2 NZLR 298

[23]     Mr McCoubrey submits that on the Hessell guidelines your discount ought not to be significantly in excess of 10%, and certainly no more than 20%.  On the other hand, Mr Mansfield argues that you should have the full 20%.

[24]     I  propose   to   allow   a   discount   which   I  regard   as   generous   in   the circumstances, having regard to the fact that you effectively absconded for some three years, and so at that time did not face up to these offences.  Neither did you plead guilty in the early stages following your arrest.  Instead, for the best part of two years, there was an unresolved challenge to the legality of the police search.

[25]     I propose to allow a discount of two years, which is a little less than 20%. That leaves a finite sentence of seven years six months imprisonment on the lead charges.

[26]     There will be concurrent sentences of three years imprisonment on each of the ecstasy charges.   That is broadly in line with the sentence of three years imprisonment imposed in the context of the finding of 175 ecstasy tablets in R v Woods[5].

Minimum period of imprisonment

[5] HC Auckland T32841, 28 May 2004

[27]     Initially the Crown seeks the imposition of a minimum non-parole period pursuant to s 86(2) of the Sentencing Act.  Mr McCoubrey relied in particular upon s 86(2)(c) which focused upon the need to deter the offender or other persons from committing the same or a similar offence.

[28]     A  minimum  period  of  imprisonment  of  not  more  than  two-thirds  of  the sentence may be imposed where the normal one-third parole eligibility period would

be insufficient for any of the purposes of holding the offender accountable, of denunciation, of deterrence, or of protection of the community.   Such minimum periods are frequently imposed for serious drug offending where the finite sentence is nine years imprisonment or longer, although it will sometimes be appropriate to impose a minimum period where the finite sentence is less than nine years:   R v

Wang[6][2009].

[6] [2009] NZCA 118

[29]     In  R  v  Zhou[7],  the  Court  of  Appeal  said  at  [19]  that  the  pervasive  and pernicious influence of methamphetamine is such as to justify the imposition of a minimum period in cases of large scale offending.  Mr McCoubrey has responsibly left the issue of a minimum term to the Court.

[7] [2009] NZCA 365

[30]     I  have  carefully  reflected  upon  the  need  for  a  minimum  period  of imprisonment in this case, but have concluded that it is unnecessary to impose a minimum term.  In large part I have been influenced by what I consider to be your favourable rehabilitation prospects.  In that regard there is your family support, the fact you have a partner and daughter waiting for you upon your release, that you are not yourself a drug user, that during your period on Waiheke you stayed out of trouble and were able to support yourself, that you will have a job waiting for you when you are released from prison, and that you are plainly doing something to improve yourself while in prison.

[31]     Taken together, these factors suggest that your future is perhaps somewhat brighter than that of many serious drugs offenders who appear before this Court for sentence.

[32]     In other words, I do not think the need for deterrence is as strong here as it is in  other  cases.    Having  said  that,  it  will  of  course be for  the Parole  Board  to determine your eventual release date, so you will need to continue the progress you have made so far.

Forfeiture

[33]     On the application of the Crown and with your consent, Mr Tran, I make orders:

a)        Forfeiting the cash seized on 23 December 2003 ($4,460.00) pursuant to s 32(3) of the Misuse of Drugs Act 1975;

b)        Forfeiting your Mercedes Benz motor vehicle AWD273, pursuant to s

32(4) of the Misuse of Drugs Act.

Sentence

[34]     Mr Tran on each of the counts of selling methamphetamine and of possession of methamphetamine for supply, you are sentenced to seven years six months imprisonment.  On each of the charges of selling ecstasy and of possessing ecstasy for supply you are sentenced to three years imprisonment.  All sentences are to be served concurrently with the result the overall sentence is seven years six months imprisonment.

C J Allan J