Tran v R
[2021] NZCA 464
•13 September 2021
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA599/2020 [2021] NZCA 464 |
| BETWEEN | ALAN TRAN |
| AND | THE QUEEN |
| CA238/2021 | ||
| BETWEEN | MICHAEL EUGENIO NAVARRO | |
| AND | THE QUEEN | |
| Hearing: | 23 August 2021 |
Court: | Collins, Duffy and Peters JJ |
Counsel: | R M Mansfield QC for Appellant Tran |
Judgment: | 13 September 2021 at 9.30 am |
JUDGMENT OF THE COURT
AThe appeals against sentence are allowed.
BThe sentence imposed in relation to Mr Tran is quashed and substituted with a sentence of 12 years and four months’ imprisonment.
CThe MPI imposed upon Mr Tran is quashed.
D The MPI imposed in relation to Mr Navarro is also quashed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Collins J)
Introduction
Mr Tran and Mr Navarro pleaded guilty to possessing 109.6 kilograms of methamphetamine for the purposes of supply. On 6 October 2020, Mr Tran was sentenced by Davison J to 14 years and seven months’ imprisonment, with a requirement he serve a minimum period of imprisonment (MPI) of seven years before he is eligible to be considered for parole.[1] On 19 March 2021, Mr Navarro was sentenced by Davison J to 12 years and seven months’ imprisonment, with an MPI of six years and three and a half months.[2]
[1]R v Tran [2020] NZHC 2633 (Sentencing notes of Mr Tran).
[2]R v Navarro [2021] NZHC 593 (Sentencing notes of Mr Navarro).
Mr Tran appeals against his sentence. He contends that the 21-year starting point adopted by the Judge was excessive and that insufficient regard was paid to his personal circumstances. It is also said on behalf of Mr Tran that an MPI was not warranted.
Mr Navarro appeals against the imposition of the MPI.
Background
Mr Tran and Mr Navarro are Australian citizens. During the course of 2018 and 2019, Mr Navarro travelled to New Zealand on three occasions. On the second of his visits, Mr Navarro put in place arrangements to secure a storage unit at Chonny Crescent in Manurewa. On 29 March 2019, he organised for the windows at that unit to be tinted. Two days later he returned to Sydney. Mr Tran arrived in New Zealand on 17 June 2019. This was his only visit to New Zealand. Mr Navarro returned to New Zealand on 30 June 2019. This was his third visit.
The summary of facts explains that in addition to travelling to New Zealand to set up storage facilities for imported methamphetamine, Mr Tran and Mr Navarro organised transport to move the methamphetamine, extracted the drug from concealed containers and put in place arrangements for the methamphetamine to be distributed within New Zealand.
Mr Tran appears to have been primarily responsible for organising the vehicles used to transport the methamphetamine. He hired a car on 6 June 2019 and a medium‑sized truck on 20 July 2019. On 22 July, a customs surveillance unit observed both vehicles outside the storage facility at Chonny Crescent. On 24 July, Mr Tran and Mr Navarro went to a hardware store and purchased protective clothing and power tools.
In addition to the storage unit at Chonny Crescent, the pair had access to another storage unit at Merton Road in St Johns. During the relevant period, Mr Navarro initially stayed at a hotel in central Auckland. He moved out of that accommodation on 23 July and took up residence at a house in Arran Street in Avondale. Mr Tran and his partner, who had flown from Sydney to be with him, spent most of the time at the Hilton Hotel in Auckland.
On 25 July, police and customs officers executed search warrants at the storage units, addresses and vehicles associated with Mr Tran and Mr Navarro.
At the Chonny Crescent storage unit, the investigating officers found over 140 pallets, some of which had been partially disassembled. All of those pallets were examined, and 51 pallets were found to contain 109.6 kilograms of methamphetamine worth somewhere between $29 million and $54 million. Inside the unit the police and customs officers found a variety of tools, extraction equipment and storage containers. They also found clandestine laboratory equipment. Nothing of significance was found at the storage unit at Merton Road.
Mr Navarro was found and arrested at the Arran Street property. The authorities found a total of $76,550 in cash inside a dishwasher and his backpack. In a second bedroom at the Arran Street house, the investigating officers found a duffel bag containing passport photos of Mr Tran and the rental truck agreement in his name. Receipts from the hardware store were also found in that bedroom.
Mr Tran and his partner were found in a room at the Hilton Hotel. He had in his possession a set of keys for the Chonny Crescent storage facility. Inside a car that Mr Tran had rented was a further receipt from the hardware store.
On 19 August 2020, Mr Tran pleaded guilty to one charge of possessing methamphetamine for the purposes of supply. The following week, Mr Navarro pleaded guilty to the same charge.
Sentencing notes: Mr Tran
Mr Tran swore an affidavit which Davison J considered. In that affidavit Mr Tran, who is now 29 years old, explained his parents fled Cambodia to escape the genocide that wreaked havoc in that country between 1975 and 1979. They settled in the south-western suburbs of Sydney. Mr Tran says that he did not perform particularly well at school and after finishing secondary school he worked in warehouses. Aside from an incident in which Mr Tran was sexually assaulted by a relative, there is nothing in his upbringing that was particularly unusual, and nothing that would account for his subsequent offending.
Mr Tran has a partner and a son who was about three months old at the time Mr Tran was sentenced. He has no previous convictions in Australia or elsewhere.
When explaining the background to his offending, Mr Tran said that he first met Mr Navarro in 2016 through mutual friends. He saw Mr Navarro again at the beginning of June 2019. At the time, Mr Tran was looking for work. Mr Navarro offered him the opportunity to work in a warehouse in New Zealand, for which he would be paid AUD10,000 for two months. Mr Tran says that he was happy to work for Mr Navarro and booked a flight to New Zealand on the basis that he would be reimbursed. His partner flew to New Zealand about two weeks later. Mr Tran says:[3]
From the time I arrived in New Zealand, I followed the direction of Mr Navarro. I was aware he was receiving instructions from a person who I believed was his boss in Australia but [I] was never involved in these communications or spoke directly to Mr Navarro’s boss myself.
[3]Affidavit of Mr Tran, 5 October 2020 at [3.9].
Mr Tran says that from the outset he had no reason to doubt the legitimacy of the work he was asked to do. However, as he continued to follow instructions, he became increasingly suspicious. His concerns were confirmed when Mr Navarro was instructed to cut into the plastic pallets. When Mr Tran saw what was concealed in the pallets, he knew he was involved with methamphetamine. He says:[4]
By this point, I was well and truly over my head. I was well aware of the violent reputation of drug syndicates in Australia and feared for the safety of my partner and myself, as well as my family back in Australia. Fleeing or alerting the authorities was not an option. The best I could hope for was to get the job done and return to Australia as soon as possible …
[4]At [3.13].
Mr Tran says he did not know about the cash stored at the Arran Street address and that Mr Navarro paid for Mr Tran’s daily needs. Mr Tran expressed remorse for his offending and said he would not repeat the same mistake again.
When assessing Mr Tran’s role in the offending, Davison J described as “implausible” Mr Tran’s explanation that he did not realise he was involved with methamphetamine until very late in the events that unfolded.[5] In rejecting Mr Tran’s explanation, the Judge said, “it must have been obvious what [Mr Tran’s] role and work related to”.[6] Nevertheless, the Judge was satisfied that Mr Tran’s activities placed him in the “lesser role” category as defined by this Court in Zhang v R.[7] Davison J said:[8]
Although [Mr Tran was] trusted with handling a large amount of methamphetamine, [he was] acting under the immediate direction of Mr Navarro, who was telling [Mr Tran] what he wanted [him] to do and [Mr Tran] did not have “an operational or management function within the chain”. [Mr Tran appeared] to have followed instructions and [could] appropriately [be] described as being a “willing pair of hands ... [with] no organisational role”.
[5]Sentencing notes of Mr Tran, above n 1, at [40].
[6]At [40].
[7]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [115].
[8]Sentencing notes of Mr Tran, above n 1, at [41] (footnotes omitted) citing Zhang v R, above n 7; and R v Leung [2019] NZHC 3299 at [85].
The quantity of methamphetamine involved placed Mr Tran’s offending well within band five as described in Zhang and therefore attracted an indicative starting point of between 10 years and life imprisonment.[9] After assessing Mr Tran’s role as being in the “lesser” category, Davison J adopted a starting point of 21 years’ imprisonment.[10]
[9]Sentencing notes of Mr Tran, above n 1, at [36].
[10]At [41]–[42].
The Judge applied a five per cent discount to recognise the difficulties that Mr Tran would face when serving a long prison sentence away from his family and to reflect his “personal background as a first offender”.[11] A further 25 per cent discount was provided in recognition of Mr Tran’s guilty plea.[12] This gave a sentence of 14 years and seven months’ imprisonment.[13]
[11]At [48].
[12]At [49].
[13]At [50].
When assessing whether or not to impose an MPI the Judge weighed the factors in s 86(2) of the Sentencing Act 2002 and decided an MPI was required in order to hold Mr Tran accountable for the harm done to the community, to denounce his offending and to deter Mr Tran and others from possessing large quantities of methamphetamine for supply.[14] The MPI of seven years amounted to 48 per cent of the finite sentence imposed.
[14]At [53]–[57].
Davison J acknowledged the sentence imposed on Mr Tran was “stern” but said such a sentence was necessary to discourage foreign nationals from becoming involved in the importation and supply of methamphetamine in this country.[15]
Sentencing notes: Mr Navarro
[15]At [46].
Mr Navarro is now 27 years old. He has 21 convictions in Australia, mainly for driving offences. He has five comparatively minor drugs related convictions.
A report prepared pursuant to s 27 of the Sentencing Act was before Davison J when he sentenced Mr Navarro five months after Mr Tran was sentenced.
The s 27 report explains Mr Navarro’s parents immigrated to Australia from Chile and that, when Mr Navarro was five years old, his mother returned to Chile for six years. When she returned to Australia Mr Navarro spent most of his time with his mother and the weekends with his father. He started to use cannabis when he was 13, but he has never used methamphetamine. His brother, however, is a methamphetamine addict. Mr Navarro left school when he was 15 years old and with limited qualifications. Most of his work life has been spent in the construction and landscaping industries.
According to the s 27 report, Mr Navarro met “a friend of a friend” at a party in Sydney, who offered him work in New Zealand in a warehouse. He was to be paid AUD10,000 for two months work. He said he needed the money but that on the first day of work he saw the white powder and believed it to be cocaine. The report writer says:[16]
[Mr Navarro] continued with his shift with his mind trying to process what he had become involved in and how he could exit the arrangement successfully without causing himself or his family any harm. He stated that he worked for about four hours and then went home. He did not tell anyone that he had quit, but he did not go to work the next day. He advised that the following day he was arrested and charged.
[16]Section 27 Report at [3.24].
The author of the s 27 report said that the separation of Mr Navarro’s parents, and his mother’s decision to return to Chile for six years impacted upon Mr Navarro’s psychological wellbeing. It was suggested that this factor, combined with his early addiction to cannabis, poor academic record and limited career prospects “could be deemed as an indirect causal nexus of [Mr Navarro’s] offending”. The report writer also opined that there was a “demonstrative nexus” between Mr Navarro’s background and his offending, which “mitigate[d] his moral culpability”.
Davison J rejected Mr Navarro’s explanation that he did not know what he was involved with until very late in the operation.[17] The Judge said Mr Navarro’s activities during his second trip to New Zealand when he arranged for the tinting of the windows at the Chonny Crescent unit, and his other actions with Mr Tran, clearly showed Mr Navarro came to New Zealand to participate in an illicit drug enterprise.[18]
[17]Sentencing notes of Mr Navarro, above n 2, at [15].
[18]At [15].
In assessing Mr Navarro’s role, the Judge said:[19]
It is unclear whether Mr Tran was your supervisor, or you were his, or you were working alongside one another without either of you in fact giving instructions to the other. I shall accordingly proceed on the basis your role was the same as his, which places you at the more significant end of the “lesser” category …
On this basis, the Judge adopted a starting point of 21 years’ imprisonment for Mr Navarro, the same starting point that had been applied in Mr Tran’s case.[20]
[19]At [50] (footnotes omitted).
[20]At [50].
Unlike in Mr Tran’s case, however, the Judge found it was possible to make more significant deductions in recognition of Mr Navarro’s personal circumstances. Those deductions were:
(a)Mr Navarro’s comparative youth. He was 25 years old at the time of the offending.
(b)Mr Navarro’s remorse as evidenced by a letter of apology Mr Navarro provided to the Judge.
(c)Mr Navarro’s constructive steps while in prison towards rehabilitation.
The Judge deducted five per cent from the starting point to reflect these considerations.[21]
[21]At [54].
The Judge deducted a further five per cent from the starting point to take account of the matters set out in the s 27 report. In doing so, the Judge said that the s 27 report showed there was “a demonstrative nexus between aspects of [Mr Navarro’s] background and [his] offending”.[22]
[22]At [56].
A further five per cent was deducted to reflect the difficulties Mr Navarro would face as a foreign national serving a long term of imprisonment in New Zealand without direct support from his family in Australia.[23]
[23]At [55].
As with Mr Tran, 25 per cent was deducted from the starting point to take account of Mr Navarro’s guilty plea.[24]
[24]At [57].
Thus, in Mr Navarro’s case, 40 per cent was deducted from the starting point to produce a finite sentence of 12 years and seven months’ imprisonment. The Judge also imposed an MPI in Mr Navarro’s case, essentially for the same reasons he imposed the MPI when sentencing Mr Tran. In Mr Navarro’s case, the MPI equated to 50 per cent of the finite sentence namely, six years and three and a half months’ imprisonment.[25]
[25]At [60]–[61].
As part of Mr Navarro’s sentence, the Judge ordered forfeiture to the Crown of all the cash found at the Arran Street home.[26]
Grounds of appeal: Mr Tran
[26]At [66].
In his comprehensive submissions, Mr Mansfield QC, counsel for Mr Tran, submitted:
(a)The starting point of 21 years’ imprisonment was excessive. Mr Mansfield made this submission, even though when he appeared for Mr Tran in the High Court, he advocated the starting point of 21 years. The change in approach was driven by Mr Mansfield subsequently becoming aware of the starting point imposed in Mr Navarro’s case.
(b)The sentence imposed on Mr Tran did not properly account for Mr Tran’s personal circumstances. In particular, the sentence did not take account of Mr Tran’s age, his lack of previous convictions, cultural factors or his remorse.
(c)In Mr Mansfield’s submissions, an MPI was not warranted.
Ground of appeal: Mr Navarro
Mr Ryan, who appeared for Mr Navarro, submitted that an MPI was not justified in Mr Navarro’s circumstances.
The response
Mr Steele, who appeared with Ms Kerr, for the Crown submitted:
(a)The amount of methamphetamine involved and Mr Tran’s role justified the starting point of 21 years’ imprisonment.
(b)Mr Tran’s personal circumstances can be distinguished from those of Mr Navarro. The five per cent discount applied in Mr Tran’s case adequately reflected his personal circumstances.
(c)MPIs were justified in relation to both appellants.
Analysis
Starting point for Mr Tran
It is unfortunate Mr Tran and Mr Navarro were not sentenced at or about the same time. We are sure that if they were sentenced in close proximity to each other, Davison J would have drawn a distinction in the starting points between the appellants. In doing so, the Judge would have recognised that a more appropriate starting point for Mr Tran would have been less than that for Mr Navarro in order to reflect his lower role in the organisation.
Had Mr Tran and Mr Navarro been sentenced at about the same time, then we are also sure Mr Mansfield would not have agreed to a starting point of 21 years for Mr Tran. He would not have accepted that Mr Tran and Mr Navarro should have the same starting point.
The reasons why a lower starting point should have been adopted in Mr Tran’s case can be succinctly summarised:
(a)Mr Tran’s uncontested evidence was that he was recruited into the venture by Mr Navarro.
(b)Mr Tran also explained, and the Judge accepted, Mr Tran was “acting under the immediate direction of Mr Navarro” who told Mr Tran what he wanted Mr Tran to do.[27] Yet, when it came to sentencing Mr Navarro, the Judge decided Mr Navarro and Mr Tran played equal roles in the operation.[28]
(c)Mr Navarro was clearly more involved in setting up the facilities in New Zealand. During his second trip to this country, which occurred before Mr Tran was recruited, Mr Navarro arranged for the windows in the Chonny Crescent unit to be tinted.
(d)Significantly, the $76,550 found at the Arran Street address was attributed to Mr Navarro when he was sentenced. No orders relating to that money were made in relation to Mr Tran. The fact Mr Navarro was in possession of a large amount of cash is consistent with Mr Tran’s evidence that Mr Navarro paid for Mr Tran’s daily expenses using cash.
[27]Sentencing notes of Mr Tran, above n 1, at [41].
[28]Sentencing notes of Mr Navarro, above n 2, at [50].
In our assessment, the differences in the roles of Mr Tran and Mr Navarro need to be reflected by adopting a starting point of 19 years’ imprisonment for Mr Tran.
We also agree with Mr Mansfield that more credit needed to be given to Mr Tran when assessing his personal circumstances. He was just 17 months older than Mr Navarro, yet Mr Navarro received credit for his age. Unlike Mr Navarro, Mr Tran was a first offender and the challenges he will face in prison will be compounded by the fact he is unable to see his partner and their young son. We also think some credit should have been given to Mr Tran’s unchallenged evidence that he was remorseful. We believe that all of these mitigating factors should now be addressed by way of a deduction of 10 per cent which means, when credit is given for the guilty plea, a total reduction of 35 per cent needs to be made from the 19-year starting point.
This produces an end sentence of 12 years and four months’ imprisonment for Mr Tran.
MPI
We start with the legislation governing the imposition of MPIs. Section 86(2) of the Sentencing Act states:
86Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment
…
(2)The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:
(a)holding the offender accountable for the harm done to the victim and the community by the offending:
(b)denouncing the conduct in which the offender was involved:
(c)deterring the offender or other persons from committing the same or a similar offence:
(d)protecting the community from the offender.
…
Davison J fully appreciated that MPIs must not be imposed as a matter of routine or in a mechanistic fashion and that, “as a general rule, lengthy minimum periods of imprisonment are properly reserved for cases involving significant commercial dealing”.[29]
[29]Sentencing notes of Mr Tran, above n 1, at [52]; and Sentencing notes of Mr Navarro, above n 2, at [58], citing Zhang v R, above n 7, at [171].
The quantity of methamphetamine involved in this case was an example of the type of significant commercial drugs venture which this Court had in mind when indicating what cases might normally warrant the imposition of an MPI. It is necessary, however, to evaluate each of the criteria in s 86(2) of the Sentencing Act and the appellant’s personal circumstances when determining whether or not an MPI is justified.
Holding the offender accountable
In assessing the need to further hold the appellants accountable for the harm that would have been inflicted upon the community had they not been apprehended we have had regard to the fact that the sentences imposed were “stern”. The objective of holding Mr Tran and Mr Navarro accountable was fully achieved by the high finite sentences imposed in each of their cases.
Denouncing offender’s conduct
We also conclude that the sentencing objective of denunciation was fully achieved in this case by the stern sentences that were imposed.
Deterring others
We think it unlikely an MPI is necessary to deter Mr Tran and Mr Navarro from reoffending in a similar way. There is, however, considerable force in the approach taken by Davison J when he identified the need to deter other persons coming to New Zealand and engaging in significant drug offending that will inflict considerable harm upon members of the New Zealand community. This is a factor that weighs heavily in favour of the imposition of an MPI in the case of both appellants.
Protecting the community
The pre-sentence reports assess Mr Tran as having a low likelihood of reoffending. Mr Navarro was assessed as being at a low to medium risk of reoffending. We do not think there is an obvious need to protect the community by imposing an MPI that is longer than the period Mr Tran and Mr Navarro would otherwise have to serve before being eligible to be considered for parole.
Thus, we are of the view that just one of the factors in s 86(2) of the Sentencing Act weighs in favour of MPIs being imposed in these cases.
In addition to the factors in s 86(2) of the Sentencing Act, we have had regard to the personal mitigating circumstances of both appellants which we have summarised earlier in this judgment.
In recent times this Court has quashed or reduced MPIs in relation to appellants whose circumstances fell into one of three categories:
(a)Those who are young and with good prospects of rehabilitation.[30]
(b)Those who have a low likelihood of reoffending.[31]
(c)Those whose personal circumstances weigh against the imposition of an MPI.[32]
[30]Fangupo v R [2020] NZCA 484.
[31]Prasad v R [2020] NZCA 483.
[32]Tang v R [2021] NZCA 266.
After careful reflection, we are satisfied that the long periods of time that each appellant will need to serve in prison before they are eligible to be considered for parole is sufficient and that our concerns about deterring others from similar offending is outweighed by the considerations we have traversed at [47] to [54].
We will therefore quash the MPI in relation to both appellants.
Result
The appeals against sentence are allowed.
The sentence imposed in relation to Mr Tran is quashed and substituted with a sentence of 12 years and four months’ imprisonment.
The MPI imposed upon Mr Tran is quashed.
The MPI imposed in relation to Mr Navarro is also quashed.
Solicitors:
Crown Solicitor, Auckland for Respondent
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