TRAN v R [2021] NZCA 464

TRAN v R [2021] NZCA 464 [13 September 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA599/2020[2021] NZCA 464BETWEEN ALAN TRANAppellantAND THE QUEENRespondentCA238/2021BETWEEN MICHAEL EUGENIO NAVARROAppellantAND THE QUEENRespondentHearing: 23 August 2021Court: Collins, Duffy and Peters JJCounsel: R M Mansfield QC for Appellant TranM W Ryan for Appellant NavarroH D L Steele and E J Kerr for RespondentJudgment: 13 September 2021 at 9.30 amJUDGMENT OF THE COURTA The appeals against sentence are allowed.B The sentence imposed in relation to Mr Tran is quashed and substitutedwith a sentence of 12 years and four months' imprisonment.C The 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[1] Mr Tran and Mr Navarro pleaded guilty to possessing 109.6 kilograms ofmethamphetamine for the purposes of supply. On 6 October 2020, Mr Tran wassentenced by Davison J to 14 years and seven months' imprisonment, with arequirement he serve a minimum period of imprisonment (MPI) of seven years beforehe is eligible to be considered for parole.1 On 19 March 2021, Mr Navarro wassentenced by Davison J to 12 years and seven months' imprisonment, with an MPI ofsix years and three and a half months.2[2] Mr Tran appeals against his sentence. He contends that the 21-year startingpoint adopted by the Judge was excessive and that insufficient regard was paid to hispersonal circumstances. It is also said on behalf of Mr Tran that an MPI was notwarranted.[3] Mr Navarro appeals against the imposition of the MPI.Background[4] Mr Tran and Mr Navarro are Australian citizens. During the course of 2018and 2019, Mr Navarro travelled to New Zealand on three occasions. On the second ofhis visits, Mr Navarro put in place arrangements to secure a storage unit atChonny Crescent in Manurewa. On 29 March 2019, he organised for the windows atthat unit to be tinted. Two days later he returned to Sydney. Mr Tran arrived inNew Zealand on 17 June 2019. This was his only visit to New Zealand. Mr Navarroreturned to New Zealand on 30 June 2019. This was his third visit.[5] The summary of facts explains that in addition to travelling to New Zealand toset up storage facilities for imported methamphetamine, Mr Tran and Mr Navarroorganised transport to move the methamphetamine, extracted the drug from concealed1 R v Tran [2020] NZHC 2633 (Sentencing notes of Mr Tran).2 R v Navarro [2021] NZHC 593 (Sentencing notes of Mr Navarro).containers and put in place arrangements for the methamphetamine to be distributedwithin New Zealand.[6] Mr Tran appears to have been primarily responsible for organising the vehiclesused to transport the methamphetamine. He hired a car on 6 June 2019 and amedium-sized truck on 20 July 2019. On 22 July, a customs surveillance unit observedboth vehicles outside the storage facility at Chonny Crescent. On 24 July, Mr Tranand Mr Navarro went to a hardware store and purchased protective clothing and powertools.[7] In addition to the storage unit at Chonny Crescent, the pair had access toanother 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 thataccommodation on 23 July and took up residence at a house in Arran Street inAvondale. Mr Tran and his partner, who had flown from Sydney to be with him, spentmost of the time at the Hilton Hotel in Auckland.[8] On 25 July, police and customs officers executed search warrants at the storageunits, addresses and vehicles associated with Mr Tran and Mr Navarro.[9] At the Chonny Crescent storage unit, the investigating officers found over 140pallets, some of which had been partially disassembled. All of those pallets wereexamined, and 51 pallets were found to contain 109.6 kilograms of methamphetamineworth somewhere between $29 million and $54 million. Inside the unit the police andcustoms officers found a variety of tools, extraction equipment and storage containers.They also found clandestine laboratory equipment. Nothing of significance was foundat the storage unit at Merton Road.[10] Mr Navarro was found and arrested at the Arran Street property. Theauthorities found a total of $76,550 in cash inside a dishwasher and his backpack. Ina second bedroom at the Arran Street house, the investigating officers found a duffelbag 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.[11] Mr Tran and his partner were found in a room at the Hilton Hotel. He had inhis possession a set of keys for the Chonny Crescent storage facility. Inside a car thatMr Tran had rented was a further receipt from the hardware store.[12] On 19 August 2020, Mr Tran pleaded guilty to one charge of possessingmethamphetamine for the purposes of supply. The following week, Mr Navarropleaded guilty to the same charge.Sentencing notes: Mr Tran[13] Mr Tran swore an affidavit which Davison J considered. In that affidavitMr Tran, who is now 29 years old, explained his parents fled Cambodia to escape thegenocide that wreaked havoc in that country between 1975 and 1979. They settled inthe south-western suburbs of Sydney. Mr Tran says that he did not performparticularly well at school and after finishing secondary school he worked inwarehouses. Aside from an incident in which Mr Tran was sexually assaulted by arelative, there is nothing in his upbringing that was particularly unusual, and nothingthat would account for his subsequent offending.[14] Mr Tran has a partner and a son who was about three months old at the timeMr Tran was sentenced. He has no previous convictions in Australia or elsewhere.[15] When explaining the background to his offending, Mr Tran said that he firstmet Mr Navarro in 2016 through mutual friends. He saw Mr Navarro again at thebeginning of June 2019. At the time, Mr Tran was looking for work. Mr Navarrooffered him the opportunity to work in a warehouse in New Zealand, for which hewould be paid AUD10,000 for two months. Mr Tran says that he was happy to workfor Mr Navarro and booked a flight to New Zealand on the basis that he would bereimbursed. His partner flew to New Zealand about two weeks later. Mr Tran says:3From the time I arrived in New Zealand, I followed the direction ofMr Navarro. I was aware he was receiving instructions from a person who Ibelieved was his boss in Australia but [I] was never involved in thesecommunications or spoke directly to Mr Navarro's boss myself.3 Affidavit of Mr Tran, 5 October 2020 at [3.9].[16] Mr Tran says that from the outset he had no reason to doubt the legitimacy ofthe work he was asked to do. However, as he continued to follow instructions, hebecame increasingly suspicious. His concerns were confirmed when Mr Navarro wasinstructed to cut into the plastic pallets. When Mr Tran saw what was concealed inthe pallets, he knew he was involved with methamphetamine. He says:4By this point, I was well and truly over my head. I was well aware of theviolent reputation of drug syndicates in Australia and feared for the safety ofmy partner and myself, as well as my family back in Australia. Fleeing oralerting the authorities was not an option. The best I could hope for was toget the job done and return to Australia as soon as possible [17] Mr Tran says he did not know about the cash stored at the Arran Street addressand that Mr Navarro paid for Mr Tran's daily needs. Mr Tran expressed remorse forhis offending and said he would not repeat the same mistake again.[18] 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 withmethamphetamine until very late in the events that unfolded.5 In rejecting Mr Tran'sexplanation, the Judge said, "it must have been obvious what [Mr Tran's] role andwork related to".6 Nevertheless, the Judge was satisfied that Mr Tran's activitiesplaced him in the "lesser role" category as defined by this Court in Zhang v R.7Davison J said:8Although [Mr Tran was] trusted with handling a large amount ofmethamphetamine, [he was] acting under the immediate direction ofMr Navarro, who was telling [Mr Tran] what he wanted [him] to do and [MrTran] 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 organisationalrole".[19] The quantity of methamphetamine involved placed Mr Tran's offending wellwithin band five as described in Zhang and therefore attracted an indicative startingpoint of between 10 years and life imprisonment.9 After assessing Mr Tran's role as4 At [3.13].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].9 Sentencing notes of Mr Tran, above n 1, at [36].being in the "lesser" category, Davison J adopted a starting point of 21 years'imprisonment.10[20] The Judge applied a five per cent discount to recognise the difficulties thatMr Tran would face when serving a long prison sentence away from his family and toreflect his "personal background as a first offender".11 A further 25 per cent discountwas provided in recognition of Mr Tran's guilty plea.12 This gave a sentence of14 years and seven months' imprisonment.13[21] When assessing whether or not to impose an MPI the Judge weighed the factorsin s 86(2) of the Sentencing Act 2002 and decided an MPI was required in order tohold Mr Tran accountable for the harm done to the community, to denounce hisoffending and to deter Mr Tran and others from possessing large quantities ofmethamphetamine for supply.14 The MPI of seven years amounted to 48 per cent ofthe finite sentence imposed.[22] Davison J acknowledged the sentence imposed on Mr Tran was "stern" butsaid such a sentence was necessary to discourage foreign nationals from becominginvolved in the importation and supply of methamphetamine in this country.15Sentencing notes: Mr Navarro[23] Mr Navarro is now 27 years old. He has 21 convictions in Australia, mainlyfor driving offences. He has five comparatively minor drugs related convictions.[24] A report prepared pursuant to s 27 of the Sentencing Act was before Davison Jwhen he sentenced Mr Navarro five months after Mr Tran was sentenced.[25] The s 27 report explains Mr Navarro's parents immigrated to Australia fromChile and that, when Mr Navarro was five years old, his mother returned to Chile for10 At [41]–[42].11 At [48].12 At [49].13 At [50].14 At [53]–[57].15 At [46].six years. When she returned to Australia Mr Navarro spent most of his time with hismother 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 methamphetamineaddict. Mr Navarro left school when he was 15 years old and with limitedqualifications. Most of his work life has been spent in the construction andlandscaping industries.[26] According to the s 27 report, Mr Navarro met "a friend of a friend" at a partyin Sydney, who offered him work in New Zealand in a warehouse. He was to be paidAUD10,000 for two months work. He said he needed the money but that on the firstday of work he saw the white powder and believed it to be cocaine. The report writersays:16[Mr Navarro] continued with his shift with his mind trying to process what hehad become involved in and how he could exit the arrangement successfullywithout causing himself or his family any harm. He stated that he worked forabout 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 hewas arrested and charged.[27] 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'spsychological wellbeing. It was suggested that this factor, combined with his earlyaddiction to cannabis, poor academic record and limited career prospects "could bedeemed as an indirect causal nexus of [Mr Navarro's] offending". The report writeralso opined that there was a "demonstrative nexus" between Mr Navarro's backgroundand his offending, which "mitigate[d] his moral culpability".[28] Davison J rejected Mr Navarro's explanation that he did not know what he wasinvolved with until very late in the operation.17 The Judge said Mr Navarro's activitiesduring his second trip to New Zealand when he arranged for the tinting of the windowsat the Chonny Crescent unit, and his other actions with Mr Tran, clearly showedMr Navarro came to New Zealand to participate in an illicit drug enterprise.1816 Section 27 Report at [3.24].17 Sentencing notes of Mr Navarro, above n 2, at [15].18 At [15].[29] In assessing Mr Navarro's role, the Judge said:19It is unclear whether Mr Tran was your supervisor, or you were his, or youwere working alongside one another without either of you in fact givinginstructions to the other. I shall accordingly proceed on the basis your rolewas 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 forMr Navarro, the same starting point that had been applied in Mr Tran's case.20[30] Unlike in Mr Tran's case, however, the Judge found it was possible to makemore 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 ofthe offending.(b) Mr Navarro's remorse as evidenced by a letter of apology Mr Navarroprovided 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 theseconsiderations.21[31] The Judge deducted a further five per cent from the starting point to takeaccount of the matters set out in the s 27 report. In doing so, the Judge said that thes 27 report showed there was "a demonstrative nexus between aspects of[Mr Navarro's] background and [his] offending".2219 At [50] (footnotes omitted).20 At [50].21 At [54].22 At [56].[32] A further five per cent was deducted to reflect the difficulties Mr Navarrowould face as a foreign national serving a long term of imprisonment in New Zealandwithout direct support from his family in Australia.23[33] As with Mr Tran, 25 per cent was deducted from the starting point to takeaccount of Mr Navarro's guilty plea.24[34] Thus, in Mr Navarro's case, 40 per cent was deducted from the starting pointto produce a finite sentence of 12 years and seven months' imprisonment. The Judgealso imposed an MPI in Mr Navarro's case, essentially for the same reasons heimposed the MPI when sentencing Mr Tran. In Mr Navarro's case, the MPI equatedto 50 per cent of the finite sentence namely, six years and three and a half months'imprisonment.25[35] As part of Mr Navarro's sentence, the Judge ordered forfeiture to the Crown ofall the cash found at the Arran Street home.26Grounds of appeal: Mr Tran[36] 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 forMr Tran in the High Court, he advocated the starting point of 21 years.The change in approach was driven by Mr Mansfield subsequentlybecoming aware of the starting point imposed in Mr Navarro's case.(b) The sentence imposed on Mr Tran did not properly account forMr Tran's personal circumstances. In particular, the sentence did nottake account of Mr Tran's age, his lack of previous convictions, culturalfactors or his remorse.23 At [55].24 At [57].25 At [60]–[61].26 At [66].(c) In Mr Mansfield's submissions, an MPI was not warranted.Ground of appeal: Mr Navarro[37] Mr Ryan, who appeared for Mr Navarro, submitted that an MPI was notjustified in Mr Navarro's circumstances.The response[38] Mr Steele, who appeared with Ms Kerr, for the Crown submitted:(a) The amount of methamphetamine involved and Mr Tran's role justifiedthe starting point of 21 years' imprisonment.(b) Mr Tran's personal circumstances can be distinguished from those ofMr Navarro. The five per cent discount applied in Mr Tran's caseadequately reflected his personal circumstances.(c) MPIs were justified in relation to both appellants.AnalysisStarting point for Mr Tran[39] It is unfortunate Mr Tran and Mr Navarro were not sentenced at or about thesame 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 pointfor Mr Tran would have been less than that for Mr Navarro in order to reflect his lowerrole in the organisation.[40] Had Mr Tran and Mr Navarro been sentenced at about the same time, then weare also sure Mr Mansfield would not have agreed to a starting point of 21 years forMr Tran. He would not have accepted that Mr Tran and Mr Navarro should have thesame starting point.[41] The reasons why a lower starting point should have been adopted in Mr Tran'scase can be succinctly summarised:(a) Mr Tran's uncontested evidence was that he was recruited into theventure by Mr Navarro.(b) Mr Tran also explained, and the Judge accepted, Mr Tran was "actingunder the immediate direction of Mr Navarro" who told Mr Tran whathe wanted Mr Tran to do.27 Yet, when it came to sentencingMr Navarro, the Judge decided Mr Navarro and Mr Tran played equalroles in the operation.28(c) Mr Navarro was clearly more involved in setting up the facilities inNew Zealand. During his second trip to this country, which occurredbefore Mr Tran was recruited, Mr Navarro arranged for the windows inthe Chonny Crescent unit to be tinted.(d) Significantly, the $76,550 found at the Arran Street address wasattributed to Mr Navarro when he was sentenced. No orders relating tothat money were made in relation to Mr Tran. The fact Mr Navarro wasin possession of a large amount of cash is consistent with Mr Tran'sevidence that Mr Navarro paid for Mr Tran's daily expenses using cash.[42] In our assessment, the differences in the roles of Mr Tran and Mr Navarro needto be reflected by adopting a starting point of 19 years' imprisonment for Mr Tran.[43] We also agree with Mr Mansfield that more credit needed to be given toMr Tran when assessing his personal circumstances. He was just 17 months older thanMr Navarro, yet Mr Navarro received credit for his age. Unlike Mr Navarro, Mr Tranwas a first offender and the challenges he will face in prison will be compounded bythe fact he is unable to see his partner and their young son. We also think some creditshould have been given to Mr Tran's unchallenged evidence that he was remorseful.27 Sentencing notes of Mr Tran, above n 1, at [41].28 Sentencing notes of Mr Navarro, above n 2, at [50].We believe that all of these mitigating factors should now be addressed by way of adeduction of 10 per cent which means, when credit is given for the guilty plea, a totalreduction of 35 per cent needs to be made from the 19-year starting point.[44] This produces an end sentence of 12 years and four months' imprisonment forMr Tran.MPI[45] We start with the legislation governing the imposition of MPIs. Section 86(2)of the Sentencing Act states:86 Imposition of minimum period of imprisonment in relation todeterminate sentence of imprisonment(2) The court may impose a minimum period of imprisonment that islonger than the period otherwise applicable under section 84(1) of theParole Act 2002 if it is satisfied that that period is insufficient for allor any of the following purposes:(a) holding the offender accountable for the harm done to thevictim 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 thesame or a similar offence:(d) protecting the community from the offender.[46] Davison J fully appreciated that MPIs must not be imposed as a matter ofroutine or in a mechanistic fashion and that, "as a general rule, lengthy minimumperiods of imprisonment are properly reserved for cases involving significantcommercial dealing".29[47] The quantity of methamphetamine involved in this case was an example of thetype of significant commercial drugs venture which this Court had in mind when29 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].indicating what cases might normally warrant the imposition of an MPI. It isnecessary, however, to evaluate each of the criteria in s 86(2) of the Sentencing Actand the appellant's personal circumstances when determining whether or not an MPIis justified.Holding the offender accountable[48] In assessing the need to further hold the appellants accountable for the harmthat would have been inflicted upon the community had they not been apprehendedwe have had regard to the fact that the sentences imposed were "stern". The objectiveof holding Mr Tran and Mr Navarro accountable was fully achieved by the high finitesentences imposed in each of their cases.Denouncing offender's conduct[49] We also conclude that the sentencing objective of denunciation was fullyachieved in this case by the stern sentences that were imposed.Deterring others[50] We think it unlikely an MPI is necessary to deter Mr Tran and Mr Navarro fromreoffending in a similar way. There is, however, considerable force in the approachtaken by Davison J when he identified the need to deter other persons coming toNew Zealand and engaging in significant drug offending that will inflict considerableharm upon members of the New Zealand community. This is a factor that weighsheavily in favour of the imposition of an MPI in the case of both appellants.Protecting the community[51] The pre-sentence reports assess Mr Tran as having a low likelihood ofreoffending. Mr Navarro was assessed as being at a low to medium risk ofreoffending. We do not think there is an obvious need to protect the community byimposing an MPI that is longer than the period Mr Tran and Mr Navarro wouldotherwise have to serve before being eligible to be considered for parole.[52] Thus, we are of the view that just one of the factors in s 86(2) of the SentencingAct weighs in favour of MPIs being imposed in these cases.[53] In addition to the factors in s 86(2) of the Sentencing Act, we have had regardto the personal mitigating circumstances of both appellants which we havesummarised earlier in this judgment.[54] In recent times this Court has quashed or reduced MPIs in relation to appellantswhose 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 ofan MPI.32[55] After careful reflection, we are satisfied that the long periods of time that eachappellant will need to serve in prison before they are eligible to be considered forparole is sufficient and that our concerns about deterring others from similar offendingis outweighed by the considerations we have traversed at [47] to [54].[56] We will therefore quash the MPI in relation to both appellants.Result[57] The appeals against sentence are allowed.[58] The sentence imposed in relation to Mr Tran is quashed and substituted with asentence of 12 years and four months' imprisonment.[59] The MPI imposed upon Mr Tran is quashed.30 Fangupo v R [2020] NZCA 484.31 Prasad v R [2020] NZCA 483.32 Tang v R [2021] NZCA 266.[60] The MPI imposed in relation to Mr Navarro is also quashed.Solicitors:Crown Solicitor, Auckland for Respondent