Tran v R - [2017] NZCA 146

IN THE COURT OF APPEAL OF NEW ZEALAND

CA178/2016
[2017] NZCA 146

BETWEEN	TUYET THI TRAN Appellant
AND	THE QUEEN Respondent

Hearing:	6 March 2017
Court:	Winkelmann, Woodhouse and Collins JJ
Counsel:	M J Kidd for Appellant J Murdoch and T Hu for Respondent
Judgment:	1 May 2017 at 10 am

JUDGMENT OF THE COURT

AAn extension of time to appeal against conviction is granted.
BThe appeal against conviction is dismissed.
CThe application to adduce fresh evidence on appeal is granted.
D The appeal against sentence is allowed.
EThe sentence of 13 years and nine months’ imprisonment is quashed.
FMs Tran is re-sentenced to 11 years and three months’ imprisonment.
GThe minimum period of imprisonment is quashed.

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REASONS OF THE COURT

(Given by Collins J)

Introduction

Ms Tran appeals her convictions for two charges of importing a class A controlled drug and two charges of possessing a class A controlled drug for supply following a jury trial before Davison J in the High Court at Auckland. She also appeals the sentence of 13 years and nine months’ imprisonment imposed by Davison J and the imposition of a minimum period of imprisonment (MPI) of six years and 10 months.[1]

Background

[1]R v Tran [2016] NZHC 680 at [54].

The following summary of facts is conveniently taken from the sentencing notes of Davison J. Ms Tran arrived in New Zealand from her home in Toronto, Canada on 12 September 2015 with two suitcases. On her arrival at Auckland International Airport, Ms Tran’s suitcases were searched by Customs officers who located in the lining of the suitcases four packages collectively containing approximately five kilograms of methamphetamine — a street value of around $5 million.
When questioned by the Customs officers, the account Ms Tran gave was that she had travelled to New Zealand to meet her boyfriend, a Mr Le, with whom she had struck up a relationship earlier in the year on Facebook. Ms Tran explained that she had previously come to New Zealand in July 2015 to meet Mr Le. On that occasion she said Mr Le paid for her airfares and provided a New Zealand SIM card for her to use in this country. Before departing Canada, at Mr Le’s request, Ms Tran met a man in a supermarket carpark in Toronto who handed her two suitcases to bring to New Zealand and give to Mr Le. When Ms Tran arrived in New Zealand in July she went to a central Auckland hotel where she waited for two or three days until a man collected the two empty suitcases from her. Sometime after this Ms Tran met Mr Le for the first time. Ms Tran claimed that at that meeting she realised Mr Le had misled her about his identity as he had used a false name and photo on his Facebook page. He now said his name was “Tommy”.
Ms Tran remained in Auckland for about five days before returning to Canada with two new suitcases…

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 R [2017] NZCA 146
Case: [2017] NZCA 146
Decision Date: 1 May 2017 at 10 am

CaseChat Overview and Summary

In the appeal of Tran v R, Ms Tran appealed against her conviction and sentence for two charges of importing a class A controlled drug and two charges of possessing a class A controlled drug for supply, imposed by Davison J in the High Court at Auckland. The appeal against conviction was filed out of time, but an extension was granted. The appeal against conviction focused on the evidence of Ms Tran's visit to New Zealand in July 2015, which was deemed relevant to her knowledge and state of mind during her second visit in September 2015. However, the court found that no miscarriage of justice occurred due to the omission of a propensity direction, and thus the appeal against conviction was dismissed. The appeal against sentence was allowed as the court found errors in the imposition of the starting point and the discount for Ms Tran's good character and assistance to the authorities. Consequently, Ms Tran was re-sentenced to 11 years and three months' imprisonment, and the minimum period of imprisonment was quashed.

In the Court of Appeal of New Zealand, Ms Tran appealed her conviction and sentence for two charges of importing a class A controlled drug and two charges of possessing a class A controlled drug for supply, imposed by Davison J in the High Court at Auckland. The appeal against conviction was filed out of time, but an extension was granted. The appeal against conviction focused on the evidence of Ms Tran's visit to New Zealand in July 2015, which was deemed relevant to her knowledge and state of mind during her second visit in September 2015. The court found that no miscarriage of justice occurred due to the omission of a propensity direction, and thus the appeal against conviction was dismissed. However, the appeal against sentence was allowed as the court found errors in the imposition of the starting point and the discount for Ms Tran's good character and assistance to the authorities. Consequently, Ms Tran was re-sentenced to 11 years and three months' imprisonment, and the minimum period of imprisonment was quashed.

Orders