DOAN v R [2021] NZCA 532

DOAN v R [2021] NZCA 532 [14 October 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA733/2020[2021] NZCA 532BETWEEN ANH TUAN DOANAppellantAND THE QUEENRespondentHearing: 5 October 2021Court: Brown, Venning and Cull JJCounsel: H G de Groot for AppellantL P Radich for RespondentJudgment: 14 October 2021 at 10.30 amJUDGMENT OF THE COURTA The application for leave to appeal out of time is granted.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] Mr Doan pleaded guilty to two charges of importing methamphetamine1 andone charge of possessing methamphetamine for supply.2 On 29 October 2019 he was1 Misuse of Drugs Act 1975, s 6(1)(a) and (2)(a).2 Section 6(1)(f), (1)(c) and (2)(a).sentenced by Walker J to 15 years and four months' imprisonment with a minimumperiod of imprisonment (MPI) of just over 40 per cent.3[2] The Judge adopted a starting point of 17 years' imprisonment in respect of theimportation charges and applied an uplift of 18 months for the charge of possessionfor supply. A discount of 18 months' imprisonment was allowed for personalmitigating factors, with a further discount of 10 per cent for the guilty plea which didnot come at the first opportunity. Because the Judge did not consider that parole aftera little more than five years' imprisonment adequately would satisfy the deterrenceobjective of sentencing or hold Mr Doan accountable for his conduct, an MPI of sixyears and six months was imposed.[3] Mr Doan appeals his sentence, contending that:(a) the starting point of 17 years on the importation charges was excessive;(b) the 18-month discount for personal factors was inadequate and anadjustment of 15 per cent was warranted; and(c) no MPI was necessary as Mr Doan had no criminal history, posed a lowrisk of reoffending and had good prospects for rehabilitation.Leave[4] The appeal was filed on 15 December 2020, some 11 months out of time. Thereason for the delay is said to be attributable to language difficulties, Mr Doan's lackof understanding of his appeal rights and the loss of contact with his trial counsel whowas appointed a District Court Judge on 21 January 2020. Although the delay issignificant, it is adequately explained. As there is no prejudice for the Crown, leaveto appeal is granted.3 R v Doan [2019] NZHC 2749.Background[5] The circumstances giving rise to the charges were detailed in an agreedstatement of facts.[6] In 2017 the National Organised Crime Group commenced an investigation,code-named Operation Echo, into the importation and supply of the Class A controlleddrug methamphetamine in Auckland by Mr Doan and others. That investigationrevealed that Mr Doan had imported methamphetamine concealed in machinery andfood products into New Zealand.Importation of methamphetamine: the 11 June 2017 consignment[7] On 11 June 2017 a consignment purporting to be "used hydraulic cylinders"arrived into New Zealand from Canada via a customs brokerage company.The consignee/addressee on this importation was an acquaintance whose personaldetails Mr Doan had arranged to use previously. On 21 June 2017 Mr Doan went tothe depot of the customs brokerage company and attempted to collect the consignment.He was unable to do so pending an inspection by New Zealand Customs. His attemptto pay the GST on the consignment with cash was also unsuccessful as this was not anaccepted form of payment.[8] The consignment was subsequently inspected by New Zealand Customs andfound to contain 7.6 kgs of methamphetamine concealed within a silver metalliccylinder. Pursuant to the New Zealand Drug Price Index (August 2017), 7.6 kgs ofmethamphetamine if sold in kilogram amounts had the potential to yield between$1.9 million and $3.8 million.Possession of methamphetamine for supply: the 2 October 2017 consignment[9] On 2 October 2017 seven consignments purporting to be Huy Fong Foods Inc"Sriracha Hot Chilli Sauce" arrived in New Zealand by air from California. Uponexecuting a search warrant at Mr Doan's home on 7 December 2017 the police locatedboth the van used to collect the 11 June consignment and under Mr Doan's house theseven boxes of sriracha chilli sauce each containing 24 plastic bottles. The police alsofound an electronic money counting machine, $10,000 in bundles of $50 notes andrifles and ammunition in a gun case.[10] Testing revealed that the sauce contained 783.5 grams of puremethamphetamine which had the potential to yield between approximately $200,000and $400,000. Messages on Mr Doan's phone analysed by the police revealedconnections with the consignment and its preservation.Importation of methamphetamine: the 30 November 2017 consignment[11] On 30 October 2017 a consignment purporting to be chilli paste arrived intoNew Zealand from Bangkok comprising four boxes each containing six large tinslabelled "Chillies Paste, Chua Hah Seng". The consignment was intercepted byNew Zealand Customs and forensic testing showed that it contained 9.6 kgs ofmethamphetamine which, if sold in kilogram amounts, had the potential to yieldbetween $2.4 million and $4.8 million.[12] Data extracted from Mr Doan's phone contained WeChat messages concerningthe addressee details for the consignment, how the paste tins were packed and howmuch money would be received for the importation. In those messages Mr Doanreferred to having to "take care" of the receiver and payment of the receiver. A WeChatconversation thread between late November 2017 through to early December 2017discussed purchase of materials for extracting methamphetamine. In one of thosemessages Mr Doan referred to wanting to receive "dry" stuff rather than the sauce orpaste products imported. He also commented in the text messages about the "previousstill lying around here" and "now receiving more coming but he doesn't come tomake".Sentencing notes[13] In accordance with the principles in Zhang v R,4 which was delivered only eightdays prior to the sentencing, the Judge assessed the starting point by reference to boththe quantity of the drugs involved and Mr Doan's role in the enterprise. The Judge4 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.recognised that the level of methamphetamine at issue on the lead charges, 17.2 kgs,placed the offending well into the highest band of culpability, attracting a starting pointbetween ten years and life imprisonment.5 The Judge focused closely on Mr Doan'srole in the enterprise, stating:[45] In my assessment, the role you played means that your culpability sitsbetween the high end of significant and low end of leading. I describe this as"on the cusp". My reasons are these. Your role was more than merelylogistical. I do not accept that you solely acted on the instructions of "masters"or had no influence over them, although it is also clear that there were othersabove you in the hierarchy. There is no evidence of the level of remunerationyou received and whether it was a fixed fee or a portion of the profit.[46] The operation was certainly sophisticated. The innovation inconcealing methamphetamine within sauce which required chemicalextraction is a sophisticated method of concealment. That does not mean thatyou necessarily played a sophisticated role. There was, however, a highdegree of planning and premeditation. There is no evidence that you were totake an active role in supply to consumers; although I note that cash was foundat your home, along with an electronic money counter. You say this wasbecause you received cash for tiling jobs. You involved or recruited othersand consequently placed them in jeopardy. You were a critical "on theground" figure with some influence, involved in the extraction process and inpaying for and arranging receivers.[14] The Judge further noted that it was evident Mr Doan was motivated bycommercial benefit and there was no suggestion that he offended to fuel an addictionor acted under duress. His concern about the quality of the product and his wish toreceive "dry" stuff in the future showed his close connection with the profitability ofthe operation and an ongoing commitment to the dealing which was not consistentwith a role at the lower end of "significant".6[15] Having regard both to pre-Zhang authorities and the specific examples inZhang, the Judge considered that Mr Doan's culpability was much greater than that ofMr Zhang and sat closer to Mr Yip's, whereas the quantity of drugs was almost thesame as Mr Zhang's but far less than Mr Yip. This led to the Judge to adopt a startingpoint of 17 years imprisonment.7 This was then uplifted by 18 months to reflect thecharge of possession for supply.5 R v Doan, above n 3, at [44].6 At [47].7 At [48].[16] In assessing the discount for personal circumstances the Judge took intoconsideration that:(a) only a modest discount was justified for language and culturaldifficulties, given that Mr Doan had lived in New Zealand for over tenyears, has family here and, in the Judge's assessment, imprisonmentwould not be significantly more severe for him despite limitations inhis English-speaking abilities;8(b) his lack of criminal history together with support of family pointed to alikelihood that he could again become a productive member of society;9and(c) he had been on restrictive bail conditions since 25 January 2018.[17] There being no personal aggravating features, the Judge concluded that adiscount of 18 months was appropriate to account for all those factors.[18] Although it appeared that negotiations on the summary of facts had been intrain for some weeks prior to trial, the Judge regarded the resolution by the entry of aguilty plea on the first day of trial as late in the process. She rejected the submissionfor Mr Doan that 15 per cent was warranted, allowing the discount of 10 per centproposed by the Crown.10[19] Turning to the issue of an MPI the Judge reasoned:[61] Here I am also guided by the recent Court of Appeal decision. LikeMr Zhang in that case, I find that your knowing participation in substantialcommercial-scale drug offending had potentially very serious socialconsequences. Balanced against that, in part through lack of mitigatingfactors, you are already to serve a very lengthy sentence. By my calculationyou are eligible for parole when you have served just over 5 years. I havecarefully considered whether this period adequately satisfies the deterrenceobjective of sentencing and holds you accountable for your conduct in realterms. I am satisfied that it falls short of that measure. I am also satisfied that8 At [52].9 At [54].10 At [57].my analysis is consistent with the examples in the case of Zhang, whereminimum periods were imposed.The Judge imposed an MPI of six years and six months.Analysis[20] Mr Doan did not challenge the amount of discount for his guilty plea, nor theuplift of 18 months for the supply charge, which Mr de Groot, counsel for Mr Doan,described as within range although at the higher end. The focus of the appeal was thethree issues identified at [3] above.Starting point[21] Mr de Groot described the case as an example of the elasticity of the roledescriptors adopted in Zhang. While acknowledging the absence of any challenge tothe Judge's factual findings, he submitted that they evidenced no more than a"significant" role and did not justify the characterisation of being at the higher end of"significant" and the lower end of "leading".[22] In support of that analysis he contended that:(a) there was no suggestion that Mr Doan architected the importations, wasresponsible for purchasing arrangements, was personally connectedwith source suppliers or designed the means of freight andconcealment;(b) there was no suggestion that Mr Doan was personally connected toorganised crime, international or domestic;(c) there was no evidence that Mr Doan was engaged in laundering orconcealing the proceeds of the offending; and(d) there was no evidence that Mr Doan had any hand in the acknowledgedsophisticated aspects of the offending.[23] Mr de Groot emphasised that Mr Doan undertook practical tasks, includingcommunicating with Customs, paying various import duties and attending AucklandAirport and a customs broker with the intention of uplifting consignments, notably ina conspicuously marked work vehicle. He observed that Mr Doan was not at arm'slength from the riskier "on the ground" functions, as was said to be generally the casewith those higher up the chain of command. Furthermore, with reference to themethamphetamine contained in the siracha chilli sauce importation, Mr Doan actedmerely as a store-person which was indicative of organisational powers outside hisimmediate view.[24] In consequence Mr de Groot submitted that the "impersonal" facts of theoffending were suggestive of a person trusted to facilitate the logistical "on theground" aspects of importation in exchange for fees and exposed to the high levels ofrisk that often attach to non-leading participants. While acknowledging there wassufficient evidence of all five indicia in the "significant" category, Mr de Grootsuggested that Mr Doan's case was the archetype of such a role and should have beensentenced on that basis. He contended there was no suggestion that any of the factorsin the "leading" category applied.[25] After reviewing the features of several recent judgments11 Mr de Grootsubmitted it would be artificial to draw fine culpability distinctions betweenMr Doan's offending and that in Pai and Wan, where starting points of 15 years wereadopted, and similarly that of Mr Zhang. He suggested that Mr Doan's offending wasmarkedly less serious than both Fangupo (a 17 year starting point for a dual-leadoffender and an importation exceeding 20 kgs) and Rahman (a 18 year starting pointfor a lead figure in the operation and a 14 kg importation).[26] Addressing first the post-Zhang authorities relied on by Mr de Groot, we agreewith Mr Radich's analysis that Mr Doan had a more active role than either Pai, areceiver who took steps to extract methamphetamine from its packaging, and Wan11 Zhang v R, above n 4; Pai v R [2020] NZCA 146; Fangupo v R [2020] NZCA 484; Wan v R [2020]NZCA 328; and Rahman v R [2021] NZCA 262.whom this Court described as "primarily a catcher".12 We also agree that Mr Doan'srole was similar to that of Fangupo but less significant than Rahman.[27] The Zhang example is perhaps most useful. Although Mr Zhang's appeal wasconfined to the imposition of an MPI, this Court considered that a starting point of15 years' imprisonment would have been appropriate instead of the 17 years imposedbecause, despite the large quantity of methamphetamine (17.9 kgs), his role as a mere"catcher" was at the lower end of significant. There was no evidence that he wasinvolved in directing others in the operation but rather appeared to have been receivinginstructions from someone higher up the chain of command.13[28] In our view the Judge correctly viewed Mr Doan's culpability as higher thanMr Zhang's because:(a) Mr Zhang's offending was confined to one importation;(b) whereas Mr Zhang travelled to New Zealand on a visa to receive andpackage the importation of methamphetamine, Mr Doan was based inNew Zealand and assumed greater organisational responsibility of theimportations;(c) Mr Doan involved and recruited others to assist in the importations andarranged payment for those recruited as receivers;(d) unlike Mr Zhang Mr Doan had a close connection with the profitabilityof the operation and an on-going commitment to the subsequent supplyof methamphetamine;(e) the presence of an electronic money counter and equipment forextraction at Mr Doan's home suggested a more expansive role and agreater degree of responsibility in the wider operation than in the caseof Mr Zhang; and12 Wan v R, above n 11, at [24].13 Zhang v R, above n 4, at [256].(f) the fact a number of firearms and significant amounts of cash werefound in Mr Doan's home was suggestive of a significant enterprise andconnections to organised crime.For these reasons we consider that the selection of a 17 year starting point was plainlyjustified.[29] As Mr de Groot did not challenge the uplift of 18 months for the charge ofpossession for supply we do not need to consider it further. We observe however, thatgiven the quantity of methamphetamine for supply and the circumstances of thatoffending, the 18 months uplift might be regarded as generous to Mr Doan.Adjustments[30] In submitting that a 15 per cent discount was merited to mark lack of previousconvictions, family support, rehabilitative prospects and the period of restrictive EMbail conditions, Mr de Groot observed that the adjustments allowed by the Judge werenot assessed individually and were expressed in months as opposed to a percentage(equating to 8.1 per cent), which may have obscured their overall proportion to thestarting point. Addressing the components individually, he submitted that a7.5 per cent discount was appropriate to mark the absence of previous convictionsalone. A further discrete reduction was appropriate to reflect family support andrehabilitative potential. He further noted that the pre-sentence report evidencedMr Doan's limitations with English and, while not isolated in the same way as aforeign national, suggested that his language will result in his remaining sociallyisolated in a custodial setting.[31] Finally, while accepting that a Court is not required to adjust on a full-paritybasis, he submitted that a reduction of 10 and a half months (4.7 per cent) would havebeen appropriate to reflect the time spent on EM bail with a 24-hour curfew. HoweverMr de Groot accepted Mr Radich's point that the duration was 18 months, not the21 months adopted in his calculation.[32] Mr Radich acknowledged that a discount was warranted for the time Mr Doanspent on EM bail, while noting that quantification is not a mathematical exercise butrequires an evaluative assessment of all the circumstances of a particular case. He alsoacknowledged that a discount for Mr Doan's previous good character was appropriatebut described it as necessarily limited by the fact that there was no evidence of positivecontributions to society.14[33] Mr Radich submitted that there was no evidence before the Judge to supportan argument that a sentence of imprisonment would be disproportionately severe forthe appellant by reason of cultural isolation and he submitted that the Judge correctlyexercised her discretion not to allow a discount for this factor. On our reading of thesentencing notes, the Judge did include this factor in her assessment of personaldiscounts but viewed it as supporting only a "modest" discount.15[34] Cumulatively, however, we consider that an 18 months adjustment adequatelyreflected the relevant considerations which were correctly identified by the Judge.We do not consider that any further discount for Mr Doan's personal circumstanceswas warranted.MPI[35] Mr de Groot relied inter alia on Royal v R, where an MPI was quashed torecognise the appellant's "personal circumstances and potential for rehabilitation",16and Prasad v R, where this Court said it should be hesitant to impose an MPI upon adefendant who presents with a low likelihood of reoffending.17 He submitted no MPIwas required in this case by s 86(2) of the Sentencing Act 2002 having regard to theconsiderations traversed in the context of the personal circumstances adjustment.[36] However in view of this Court's observations in relation to Mr Zhang18 weagree with Mr Radich's submission that an MPI was justified in this case for tworeasons. First, like Mr Zhang, Mr Doan was involved in commercial scale drugdealing with potentially devastating social consequences. Secondly, unlike Mr Zhang,14 Drawing attention to the second of the three factual considerations mentioned by this Court inParkin v R [2018] NZCA 404 at [16].15 At [16] above.16 Royal v R [2020] NZCA 129 at [31].17 Prasad v R [2020] NZCA 483 at [32].18 Zhang v R, above n 4, at [263].Mr Doan did not provide assistance to the authorities or show genuine remorse for hisoffending. His pre-sentence report noted that he claimed he was innocent of anywrong-doing and that he was a victim of circumstance. While noting the reportwriter's assessment that Mr Doan's risk of reoffending was low and no harm was posedto the community, the Judge observed that Mr Doan had not yet achieved real insightinto his offending other than as to the devastating consequences to his family.19[37] An MPI was warranted in his case. No issue can be taken with its level whichat 42 per cent was comparatively modest.Conclusion[38] For these reasons none of the three grounds of appeal succeed.Result[39] The application for leave to appeal out of time is granted.[40] The appeal is dismissed.Solicitors:Crown Solicitor, Manukau for Respondent19 R v Doan, above n 3, at [27].