Tran v The Queen
[2012] NZCA 441
•27 September 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA378/2012 [2012] NZCA 441 |
| BETWEEN VAN ANH TRAN |
| AND THE QUEEN |
| Hearing: 18 September 2012 |
| Court: White, Ronald Young and Simon France JJ |
| Counsel: M B Meyrick for Appellant |
| Judgment: 27 September 2012 at 10.00 am |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ronald Young J)
Introduction
Mr Tran pleaded guilty to eight counts of importing pseudoephedrine and two counts of possession of pseudoephedrine for sale. Pseudoephedrine is a Class C controlled drug. The importation and possession for sale involved around 30,000 tablets. The Crown said that the pseudoephedrine in the tablets (weighing 1.8 kilograms) could have produced methamphetamine, at current street prices, valued at between $600,000 and almost $1 million.
At sentencing Judge Bouchier started at five and a half years’ imprisonment.[1] She reduced that by 25 per cent for the appellant’s early guilty plea and reached a final sentence of four years and one month’s imprisonment. The appellant says the final sentence is manifestly excessive. This was because the starting point was set too high, being higher than sentencing levels for similar cases.
The facts
[1] R v Tran DC Auckland CRI-2011-092-16706, 25 May 2012 at [17].
On eight occasions between 9 April 2011 and 5 August 2011 Customs Officers intercepted packages containing pseudoephedrine tablets intended for the appellant. He had arranged the purchase of the tablets in Vietnam and for his mother to send the tablets to various pre‑arranged addresses in Auckland. The appellant and a co‑accused would then pick up the tablets and supply them to a pre‑arranged purchaser in Auckland. Mr Tran was paid $10,000 for each successful delivery. Of the 30,000 tablets, 8,500 were found in the appellant’s backpack, car and residence and were the subject of the two possession for sale charges.
At this point it is necessary to clear up a difficulty that has arisen on the facts. Mr Tran was sentenced on the basis that the importation and possession involved 30,214 tablets.[2] ESR analysis established 9,462 of the tablets seized yielded 567.7 grams of pseudoephedrine. Applying that yield to the remaining 20,662 tablets produced just over 1.8 kilograms of pseudoephedrine. This in turn was capable of yielding 900–1,350 grams of methamphetamine worth between $600,000 and $950,000.
[2] At [2].
The figure of 30,214 tablets was calculated by adding up the number of tablets in nine packages intercepted by customs. The first such package is described in the summary of facts as containing 360 tablets. It was intercepted either on 1 September 2009 or 1 September 2011 (the summary of facts gives both dates in different places – one must be an error). Mr Tran was charged, however, with only eight counts of importation. There is no reference in the indictment to a package intercepted on 1 September 2009 or 1 September 2011. So Mr Tran was not charged in respect of the 360 tablets in the 1 September package. It follows that these 360 tablets ought not to have been included in the calculation of the amount of tablets imported or of the methamphetamine that could have been produced from the tablets. Mr Tran ought to have been sentenced therefore on the basis that his importation could have resulted in slightly less methamphetamine being produced.
The error in the sentencing will not, however, make a difference on appeal. 360 tablets equates to 1.2 per cent of the tablets with which Mr Tran was involved. A difference of 1.2 per cent in the amount of tablets can have no effect on the appropriate sentence.
District Court sentencing
The Judge noted in her sentencing remarks that the Crown suggested a proper starting point was between six and six and a half years’ imprisonment.[3] The appellant’s counsel suggested an appropriate starting point was between four and a half and five years’ imprisonment.[4]
[3] At [3].
[4] At [11].
The Judge referred to a number of cases in which she identified comparative amounts of pseudoephedrine and sentence levels. In particular she referred to the decision of R v Ho as providing helpful guidance.[5]
[5] R v Ho HC Auckland CRI-2005‑092‑567, 12 April 2005.
In R v Ho Winkelmann J applied the methodology of Chambers J in R v Wickremasinghe to sentences for Class C importation.[6] Winkelmann J considered that taking account of the maximum penalty of eight years’ imprisonment, a category one (for instigators, controllers) importation had a proper starting point of six to seven years’ imprisonment and category two (for critical players not covered in category one), three to five years’ imprisonment.[7]
[6] R v Wickremasinghe HC Auckland T013408, 28 March 2003.
[7] At [23].
Judge Bouchier considered the appropriate starting point was five and a half years’ imprisonment.[8] She said this was because of: the amount of pseudoephedrine and the substantial potential yield of methamphetamine; the crucial role played by the appellant in the importation (although the Judge concluded the appellant was in category two of Ho); the significant premeditation; the commercial gain to Mr Tran; and the number of importations.[9] She considered a 25 per cent discount adequately reflected the appellant’s guilty plea and youth (aged 21 years at sentencing).[10] She concluded that a minimum period of imprisonment was inappropriate.[11] Mr Tran was an illegal immigrant and had been served with a deportation order and would be deported when appropriate.[12] Thus, the Judge reached the final sentence of four years and one month’s imprisonment.[13]
Appellant’s submissions
[8] At [17].
[9] At [15]–[16].
[10] At [17].
[11] At [16].
[12] At [16].
[13] At [17].
Counsel for the appellant adopted Keane J’s approach in R v Yu.[14] The Judge there identified three factors of particular importance in selecting a proper starting point in such cases; the quantities imported; the value of the drugs imported; and the particular part the offender played in the offending.[15] Counsel submitted that an analysis of similar cases emphasising these factors illustrated that the proper starting point here was no more than four years, six months’ imprisonment.
[14] R v Yu HC Auckland CRI-2005‑004‑10703, 15 December 2006.
[15] At [17].
The appellant emphasised three cases. In R v Wu the defendant was charged with one count of importing pseudoephedrine.[16] He had 2.2 kilograms of pseudoephedrine based product. It was estimated there was sufficient to produce 600 grams of methamphetamine, having a street value of between $400,000 and $600,000. The Judge in the High Court adopted a starting point of four years and six months’ imprisonment.
[16] R v Wu HC Auckland CRI-2005‑092‑6711, 27 September 2005.
In R v Qiu[17] the appellant systematically imported 4.8 kilograms of pseudoephedrine based tablets. This importation if converted by manufacture to methamphetamine had a street value of between $900,000 and $1.4 million. The District Court Judge thought the appropriate starting point was five years’ imprisonment. This was upheld on appeal.
[17] R v Qiu CA202/06, 17 October 2006.
And finally, in Tran v R (no relation to the appellant) 37 kilograms of pseudoephedrine based product was imported likely to yield between $7 million and $11 million worth of methamphetamine if manufactured.[18] The Judge took a start sentence of five years, six months’ imprisonment, which was upheld on appeal.
[18] Tran v R [2010] NZCA 349.
Based on a comparison with these decisions the appellant says the start sentence of five years and six months and the final sentence of four years and one month was manifestly excessive. The amount of pseudoephedrine involved here was less than in Qiu where the potential value of methamphetamine produced was significantly higher. There, a start sentence of five years’ imprisonment was described by this Court as being at the very top of the sentencing level.[19]
Discussion
[19] At [18].
We are satisfied the start sentence of five and a half years was within the range available to the sentencing Judge given the facts of this case and was consistent with other cases from this Court.
In R v Qiu the appellant and his friend imported 4.8 kilograms of pseudoephedrine based capsules. This converted to 1.8 kilograms of pure pseudoephedrine yielding between 923 and 1,385 grams of methamphetamine. This equated to between $900,000 and $1.4 million worth of methamphetamine at a street level. There was one importation. Mr Qiu’s role was to organise associates to accept delivery of the drugs and then transfer them to the ultimate purchaser. He was paid $1,000 for the scheme. Mr Qiu, therefore, was not the main organiser of the importation. This Court said that the five year starting point was at the top of the available sentencing range. The amount of methamphetamine able to be produced in Qiu was similar to the current facts. However, the respective involvement of Mr Qiu and this appellant in the importation was quite different. Here the appellant was the prime actor involved throughout the eight importations. Mr Qiu had a significantly lesser role which was no doubt reflected in his $1,000 payment. Mr Qiu was involved with one importation only.
We are also satisfied that Wu and Tran are distinguishable. In Wu the defendant faced only one count of importation and less methamphetamine could have been produced from the tablets imported than in the present case. In Tran the appellant was acquitted of charges of importation so was sentenced only on the basis of charges of possession for sale.
The sentence imposed by Judge Bouchier was consistent with other decisions of this Court. In R v Burnside the appellant challenged a sentence of five years and five months’ imprisonment for importation of pseudoephedrine.[20] He was also sentenced concurrently on other charges of possession of methamphetamine for sale. The appellant and another imported 2,245 grams of pseudoephedrine said to potentially yield between 100–150 grams of methamphetamine worth between $100,000 and $150,000. This Court accepted that the appellant was not the prime mover in the importation but he was significantly involved.[21] The Court approved a start sentence of five years’ imprisonment but said that was also at the higher end.[22] We note in Burnside this Court said that the appellant had imported 2.2 kilograms of pseudoephedrine, however, given the ultimate yield of methamphetamine (100–150 grams) the 2.2 kilograms of pseudoephedrine would have been a pseudoephedrine based product and not pure pseudoephedrine.
[20] R v Burnside [2007] NZCA 527.
[21] At [31].
[22] At [31].
The importation of pseudoephedrine in Burnside can be contrasted with the current case which involved a potential yield of methamphetamine six to nine times that in Burnside. Further, in contrast to this case Mr Burnside was said not to be a prime mover in the importation.
In Lin v R, Mr Lin was part of a group of young men who imported pseudoephedrine tablets concealed in furniture and other paraphernalia.[23] The broader group imported over 30 kilograms of pseudoephedrine but Mr Lin’s role was limited to providing two consignment addresses and handing tablets onto another offender higher in the chain than him. A package was also sent to his home address and he signed for it under a false name. It was collected later that day by another offender.
[23] Lin v R [2010] NZCA 141.
In the District Court the Judge’s starting point was four years’ imprisonment. Counsel on appeal submitted that a three year starting point should have been selected. This Court concluded that the start point for some of the more serious co‑offenders was too low which in turn affected Mr Lin’s starting point of four years’ imprisonment. The Court dismissed the appeal against sentence. Mr Lin’s involvement was as a relatively minor offender in a large importation in contrast with the appellant’s pivotal role.
These cases illustrate that the starting point here of five and a half years’ imprisonment was not manifestly excessive. To reiterate, a substantial quantity of pseudoephedrine tablets was imported. There were a large number of importations. Mr Tran’s role in the importation was pivotal and involved the whole of the transaction from arranging the purchase in Vietnam, arranging for the pseudoephedrine to be sent to New Zealand, providing addresses that it could be sent to, recovering the tablets in New Zealand and finally providing them to the ultimate purchaser. Mr Tran made significant money from the transaction.
Result
For the reasons given the appeal will be dismissed.
Solicitors:
Berman and Burton, Auckland for Appellant
Crown Law Office, Wellington for Respondent
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