TRAN v R [2017] NZCA 146

TRAN v R [2017] NZCA 146 [1 May 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA178/2016[2017] NZCA 146BETWEEN TUYET THI TRANAppellantAND THE QUEENRespondentHearing: 6 March 2017Court: Winkelmann, Woodhouse and Collins JJCounsel: M J Kidd for AppellantJ Murdoch and T Hu for RespondentJudgment: 1 May 2017 at 10 amJUDGMENT OF THE COURTA An extension of time to appeal against conviction is granted.B The appeal against conviction is dismissed.C The application to adduce fresh evidence on appeal is granted.D The appeal against sentence is allowed.E The sentence of 13 years and nine months' imprisonment is quashed.F Ms Tran is re-sentenced to 11 years and three months' imprisonment.G The minimum period of imprisonment is quashed.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] 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 supplyfollowing 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 byDavison J and the imposition of a minimum period of imprisonment (MPI) of six years and 10 months.1Background[2] 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 atAuckland International Airport, Ms Tran's suitcases were searched by Customsofficers who located in the lining of the suitcases four packages collectively containing approximately five kilograms of methamphetamine — a street value of around $5 million.[3] 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 cardfor her to use in this country. Before departing Canada, at Mr Le's request, Ms Tranmet 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 hisFacebook page. He now said his name was "Tommy".[4] Ms Tran remained in Auckland for about five days before returning to Canada with two new suitcases provided by Mr Le.1 R v Tran [2016] NZHC 680 at [54].[5] The circumstances concerning Ms Tran's visit in September 2015 were similar to her first visit. Mr Le again arranged to pay for Ms Tran's airfares andaccommodation. Shortly before she left Toronto Ms Tran again met a man in a supermarket carpark who handed her two suitcases to bring to New Zealand.[6] On the second visit, after she was apprehended at Auckland Airport, Ms Tran was interviewed by Customs officers. She denied knowing that drugs were in thesuitcases. When Customs officials obtained Ms Tran's phone they telephoned the person who was believed to be Mr Le and then sent a text message. It appears the person answered, hung up and then disposed of their cellphone number soon thereafter. Ms Tran later agreed to participate in a controlled delivery of the drugs. Unfortunately nothing eventuated from that operation as the collector of the drugs did not show up to the hotel where Ms Tran was staying.[7] The four charges against Ms Tran related only to the events that arose in relation to her second visit to New Zealand in September 2015. Ms Tran was found guilty of all charges by a jury in the High Court at Auckland.Appeal against conviction[8] The notice of appeal first filed by Ms Tran referred only to the sentence imposed by Davison J. However, in February 2017 a second notice of appeal was filed which included an appeal against conviction. The appeal against conviction was filed out of time. The Crown takes no issue with the delay in filing the notice of appeal against conviction. In the circumstances we grant an extension.[9] The appeal against conviction focuses on the evidence of Ms Tran's visit toNew Zealand in July 2015. Mr Kidd, counsel for Ms Tran in this Court, argued thatthe evidence concerning the circumstances of Ms Tran's visit to New Zealand in July 2015 was propensity evidence and so leave was required before it could be admitted. No leave was sought or granted. Mr Kidd argued that a miscarriage of justice occurred as a result of the jury being told about the circumstances of Ms Tran's visit to New Zealand in July 2015.Analysis of evidence of July 2015 visit[10] The evidence concerning Ms Tran's visit to New Zealand in July 2015 needsto be examined from two perspectives.[11] First, the uncontested evidence concerning the circumstances of this visit was admissible evidence relevant to her knowledge and state of mind when she made her second visit in September 2015. That evidence included her meeting a man she did not know in a Toronto supermarket carpark to obtain two suitcases, her receiving airline tickets and a cellphone SIM card, her waiting in an Auckland hotel room fortwo to three days to hand over two "empty" suitcases (instead of meeting herboyfriend), her finding out Mr Le had lied to her about his true identity and herpurchasing two new suitcases from a shop even though Mr Le said he was involvedin the suitcase business. The Crown was entitled to rely upon this evidence todemonstrate that by the time of her September visit Ms Tran must have known therewere controlled drugs in her suitcase, or was wilfully blind to that obvious fact.[12] Second, the Crown and trial Judge also suggested to the jury that Ms Tran had brought controlled drugs into New Zealand in July 2015 and that this was relevant to establish she had done the same thing in September 2015.[13] The Crown introduced this theme when, in her closing address, counsel forthe Crown talked about the two trips being part of a "pattern of behaviour expected of a typical [drug] courier". Later in her closing address counsel for the Crown submitted:Both of these trips for Ms Tran had been pre-booked and prepaid in advancefor the entire duration of her stay. I suggest that's much more consistentwith a typical drug courier pattern than a long-distance relationship [14] The Crown's theme that Ms Tran had been engaged in importing controlled drugs into New Zealand in July as well as September was taken further by Davison J in his summing-up. It is sufficient to quote the following paragraphs from the Judge's summing-up:[62] In relation to that July 2015 trip to Auckland, the Crown also reliesupon the contents of the text messages that she sent and received on the dayof her arrival which the Crown says are a clear indication that she well knew the bags she had brought contained drugs and that she was involved in the importation for money.[84] The Crown says that the events of the July trip to [New Zealand] and the text messages on the day of her arrival in New Zealand make it plain what she was doing and what she was involved in, namely bringing drugsinto [New Zealand], and being paid to do so [87] Having undertaken a trip to New Zealand in July, the Crown says theSeptember trip was made on much the same basis it was part of an illegaltrafficking operation, and she must have known just that.[15] Ms Murdoch, who appeared for the Crown in this Court but not in the High Court, properly acknowledged that both Crown counsel and Davison J advanced the proposition that Ms Tran had imported controlled drugs into New Zealand in July 2015 and that her offending in September was part of a"pattern" of her bringing controlled drugs into New Zealand.[16] In our assessment, the suggestions by counsel for the Crown and the trial Judge (that Ms Tran had brought controlled drugs into New Zealand in July 2015 and that this was evidence that she had offended in the same way in September 2015) engaged the propensity evidence rule. It was therefore incumbent upon the Crown to have applied to adduce the evidence pursuant to s 43 of the Evidence Act 2006. Mr Kidd acknowledged that, had such an application been made, it would have been granted as the evidence had probative value in relation to an issue in dispute in the proceeding which outweighed the risk that it may have had an unfairly prejudicial effect on Ms Tran.2 The criteria in s 43(3)(a), (b) and (c) of the Evidence Act, concerning the frequency, timing and similarity of the events in question were factors that supported the admission of the evidence as propensity evidence.[17] Davison J having allowed the Crown to make the submissions we have set out in [13] and having summed up in the way set out in [14], the real issue on appeal2 Evidence Act 2006, s 43(1).is whether or not it was essential for Davison J to have given the jury a direction on the legitimate use of propensity evidence.[18] It would have been helpful if Davison J had directed the jury on how theycould properly have relied on the uncontested evidence concerning Ms Tran's visit toNew Zealand in July 2015 when deciding whether or not she knew she was carrying controlled drugs in her suitcases in September 2015, or whether she was wilfully blind to that fact. For the reasons we provide at [20], such a direction would not have involved a propensity direction. No propensity direction was required in this case.[19] In Mahomed v R, McGrath and William Young JJ explained:3[91] A propensity evidence direction is required where the Crown is:(a) relying on propensity reasoning and in doing so is invoking ideas about coincidence or probability; and/or(b) the evidence involves aspersions on the character of the appellant in respects not directly associated with the alleged offending.As well, a propensity direction shall be given where, without it, there is a danger that the jury will not realise the relevance of the evidence in question or there is some particular risk of unfair prejudice associated with the evidence.[92] On the other hand, and as the corollary of what we have just said,where the evidence in question, although still falling within the Act's "propensity evidence" definition, is not led primarily in reliance oncoincidence or probability reasoning, a specific direction may well not be required.[20] Applying these considerations to the circumstances of this case we are satisfied a propensity direction was not required for the following reasons:(1) First, as we have already emphasised, the only issues in this trial were whether, at the time of her September visit, Ms Tran knew there were controlled drugs in her suitcases or was wilfully blind to this fact. The uncontested evidence concerning the highly suspiciouscircumstances of Ms Tran's visit in July was primarily relevant not3 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145.because it showed she had a propensity to courier illegal drugs, but because it rendered implausible her account that she did not know about the drugs she was carrying in September. We therefore see this evidence as falling into the category of case described at [92] ofMahomed — evidence undeserving of a propensity direction.(2) Further, there was no risk of a miscarriage of justice through theJudge's failure to give a propensity direction because the jury knew the only issues related to Ms Tran's state of mind concerning thecontents of her suitcases in September. The jury understood that Ms Tran was not charged with anything in relation to her July visit. In reality, the suggestion she had imported in July, although it should not have been made, added nothing to the Crown case. It was uncontested that Ms Tran had brought drugs into New Zealand in September.[21] Having concluded that a propensity direction was not required and that no miscarriage of justice arose through Davison J not giving a propensity direction, we therefore conclude that the appeal against conviction must be dismissed.Appeal against sentence[22] When sentencing Ms Tran Davison J adopted a starting point of 14 years' imprisonment for the importation charges.4 This starting point was basedon the assessment that Ms Tran's offending fell within the middle of band 4 ofR v Fatu.5 Davison J then increased the provisional sentence to one of 15 years toreflect the totality of Ms Tran's offending.6 From there the Judge provided adiscount of nine months on account of Ms Tran's previous good character, fourmonths to reflect the effects of a prison sentence upon her and a further two monthsto reflect Ms Tran's assistance to the authorities. This resulted in an end sentence of13 years and nine months' imprisonment.74 R v Tran, above n 1, at [36].5 At [29] citing R v Fatu [2006] 2 NZLR 72 (CA).6 At [39].7 At [54].Appeal against term of sentence[23] Mr Kidd argued that Davison J erred in three ways when sentencing Ms Tranto a period of 13 years and nine months' imprisonment.(1) First, it was said Davison J improperly took account of thecircumstances of Ms Tran's visit to New Zealand in July 2015 insetting the starting point and assessing the level of discount for Ms Tran's good character.(2) Second, it was submitted that Davison J failed to give sufficientweight to Ms Tran's motives, which Mr Kidd said were of a personalrather than financial nature.(3) Third, it was argued Davison J did not give appropriate weight to the assistance Ms Tran provided to the authorities.[24] We are satisfied Davison J erred in a number of ways when setting the termof Ms Tran's prison sentence.[25] First, in the circumstances of this case it was not necessary to impose anuplift of one year to reflect the totality of Ms Tran's offending. The charges ofimporting a class A controlled drug fully encapsulated all of Ms Tran's offending.The possession for supply charges added nothing to her overall culpability.[26] Second, there was little evidence Ms Tran was involved in the importation of the methamphetamine for financial gain. She appears to have had her airfares paid and possibly received a moderately small sum for her activities. There is some meritto Mr Kidd's submission that Ms Tran was primarily motivated by personal factorsin that she set out to pursue a relationship with Mr Le. Although Davison J drew the inference Ms Tran was not motivated by financial gain,8 we consider he gave insufficient weight to this factor in setting the starting point.8 At [31], [35] and [43].[27] We do not consider Davison J improperly relied on Ms Tran's July trip insetting the starting point. It was appropriate to take into account that trip to consider as a relevant factor the trust and confidence Mr Le had reposed in Ms Tran for the September trip.9[28] Third, we agree that more of a discount could reasonably have been given for the efforts that Ms Tran made to assist the authorities. Participating in a controlled delivery of a significant quantity of drugs was a potentially dangerous activity. The fact nothing meaningful eventuated from the controlled operation was probably dueto the way in which authorities inadvertently alerted Mr Le that something was amisswhen they phoned and sent a text message to him using Ms Tran's cellphone.[29] We agree with Davison J's assessment that Ms Tran was entitled to a discountof approximately nine months to reflect her previous good character.[30] Taking these matters into account, we believe the starting point of 14 years for the importation charges should not have been increased. We also believe the starting point of 14 years was inappropriate because Ms Tran appears to have been primarily motivated by personal rather than commercial considerations. Considerations of commerciality may be significant.10 We are satisfied the starting point should have been 13 years in this case.11 From that starting point we wouldreduce the sentence by six months to reflect Ms Tran's assistance to the authoritiesand a further nine months to give credit for her previous good character. We would make a further reduction of six months to reflect the effects of a prison sentence on Ms Tran in New Zealand. The deduction being two months more than what Davison J imposed is appropriate in light of new evidence before us, which wediscuss at [33]. This produces an end sentence of 11 years and three months'imprisonment.9 At [33].10 R v Fatu, above n 5, at [32].11 We have referred to R v Tyniec HC Auckland CRI-2011-092-6373, 9 August 2011 at [23] where a 14-year starting point was adopted in relation to a lower quantity of importedmethamphetamine but where the defendant had acted "purely out of greed".Minimum period of imprisonment[31] Since Ms Tran was sentenced further evidence has been produced concerning her personal circumstances. We grant leave in respect of that evidence as we consider it both fresh and cogent to the issues on appeal.12 That evidence reveals Ms Tran's mother is now critically ill with stomach cancer and that her brother alsohas cancer. The Crown accepted we were obliged to accept this evidence at face value as the Crown was not in any position to challenge its veracity.[32] Absent this new evidence we would have decided that Davison J did not errwhen he imposed an MPI because Ms Tran's offending involved the importation ofclose to five kilograms of methamphetamine into New Zealand. This was a very serious case of importing a class A controlled drug which engaged at least two criteria in s 86(2) of the Sentencing Act 2002, namely:(1) the need to denounce Ms Tran's conduct; and(2) the need to deter other persons from committing the same or a similar offence.[33] We are satisfied, however, that the uncontested evidence concerning theserious health issues in Ms Tran's family will add significantly to the challengeswhich she will face in serving a long period of imprisonment in New Zealand and renders an MPI unnecessary in the circumstances. In reaching this conclusion wehave had regard to this Court's decision in Shaw v R, in which the appellant'spersonal circumstances were far less compelling than those put forward on behalf of Ms Tran and where it was decided an MPI was no longer warranted.13Conclusion[34] An extension of time to appeal against conviction is granted but the appeal against conviction is dismissed.12 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].13 Shaw v R [2016] NZCA 110.[35] The application to adduce fresh evidence on appeal is granted and the appeal against sentence is allowed. The sentence of 13 years and nine months'imprisonment is quashed. Ms Tran is re-sentenced to 11 years and three months'imprisonment.[36] The minimum period of imprisonment is quashed.Solicitors:Crown Law Office, Wellington for Respondent