Tran v The Queen - [2012] NZCA 441

IN THE COURT OF APPEAL OF NEW ZEALAND

CA378/2012
[2012] NZCA 441

BETWEEN VAN ANH TRAN
Appellant

AND THE QUEEN
Respondent

Hearing: 18 September 2012

Court: White, Ronald Young and Simon France JJ

Counsel: M B Meyrick for Appellant
M E Ball for Respondent

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…

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 The Queen

Details

AGLC: Tran v The Queen [2012] NZCA 441
Case: [2012] NZCA 441
Decision Date: 27 September 2012

CaseChat Overview and Summary

The case of Tran v The Queen was heard by the Court of Appeal of New Zealand, where Van Anh Tran appealed against the sentence imposed on him by the District Court. Tran had pleaded guilty to eight counts of importing pseudoephedrine and two counts of possession of pseudoephedrine for sale. The appeal focused on the sentencing decision made by Judge Bouchier, who imposed a final sentence of four years and one month's imprisonment, reduced from an initial five and a half years due to Tran's early guilty plea. Tran argued that the sentence was manifestly excessive, as the starting point was set too high and did not align with sentencing levels for similar cases.

The court considered the legal issues surrounding the appropriate starting point for sentencing and whether it was within the range available to the sentencing judge. The appeal hinged on comparing the current case with previous cases that involved similar offences and determining if the sentence imposed was consistent with those cases.

The court found that the starting sentence of five and a half years was within the range available to the sentencing judge and was consistent with other cases from the Court of Appeal. The court noted that the amount of pseudoephedrine involved in Tran's case was less than in some previous cases, but his role in the importation was pivotal and involved significant premeditation and commercial gain. The court also highlighted that Tran's involvement was more substantial than in other cases, where the offenders had lesser roles. Therefore, the court concluded that the sentence imposed by Judge Bouchier was appropriate and dismissed the appeal against sentence.

Orders