Tran v R - [2021] NZCA 464

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA599/2020
[2021] NZCA 464

BETWEEN	ALAN TRAN Appellant
AND	THE QUEEN Respondent

CA238/2021
BETWEEN	MICHAEL EUGENIO NAVARRO Appellant
AND	THE QUEEN Respondent

Hearing:	23 August 2021
Court:	Collins, Duffy and Peters JJ
Counsel:	R M Mansfield QC for Appellant Tran M W Ryan for Appellant Navarro H D L Steele and E J Kerr for Respondent
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…

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 Tran v R

Details

AGLC: Tran v The Queen [2021] NZCA 464
Case: [2021] NZCA 464
Decision Date: 13 September 2021

CaseChat Overview and Summary

The Court of Appeal of New Zealand allowed the appeals against sentence brought by Alan Tran and Michael Navarro, who had both pleaded guilty to possessing 109.6 kilograms of methamphetamine for the purposes of supply. The Court found that the starting point of 21 years' imprisonment adopted by the High Court was excessive for Mr Tran, who was in a lesser role than Mr Navarro. The Court also found that the High Court did not give sufficient weight to Mr Tran's personal circumstances and that an MPI was not warranted. The Court substituted the sentence of 14 years and seven months' imprisonment imposed on Mr Tran with a sentence of 12 years and four months' imprisonment, and quashed the MPI imposed on both appellants.

Orders