	Home \| Databases \| WorldLII \| Search \| Feedback Court of Appeal of New Zealand

Home | Databases | WorldLII | Search | Feedback

Court of Appeal of New Zealand

You are here: NZLII >> Databases >> Court of Appeal of New Zealand >> 2021 >> [2021] NZCA 532

Doan v R [2021] NZCA 532 (14 October 2021)

Last Updated: 19 October 2021

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA733/2020
[2021] NZCA 532

	BETWEEN	ANH TUAN DOAN Appellant
	AND	THE QUEEN Respondent

Hearing:	5 October 2021
Court:	Brown, Venning and Cull JJ
Counsel:	H G de Groot for Appellant L P Radich for Respondent
Judgment:	14 October 2021 at 10.30 am

JUDGMENT OF THE COURT

The application for leave to appeal out of time is granted.
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 methamphetamine^[1] and one charge of possessing methamphetamine for supply.^[2] On 29 October 2019 he was sentenced by Walker J to 15 years and four months’ imprisonment with a minimum period of imprisonment (MPI) of just over 40 per cent.^[3]
[2] The Judge adopted a starting point of 17 years’ imprisonment in respect of the importation charges and applied an uplift of 18 months for the charge of possession for supply. A discount of 18 months’ imprisonment was allowed for personal mitigating factors, with a further discount of 10 per cent for the guilty plea which did not come at the first opportunity. Because the Judge did not consider that parole after a little more than five years’ imprisonment adequately would satisfy the deterrence objective of sentencing or hold Mr Doan accountable for his conduct, an MPI of six years 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 an adjustment of 15 per cent was warranted; and

(c) no MPI was necessary as Mr Doan had no criminal history, posed a low risk of reoffending and had good prospects for rehabilitation.

Leave

[4] The appeal was filed on 15 December 2020, some 11 months out of time. The reason for the delay is said to be attributable to language difficulties, Mr Doan’s lack of understanding of his appeal rights and the loss of contact with his trial counsel who was appointed a District Court Judge on 21 January 2020. Although the delay is significant, it is adequately explained. As there is no prejudice for the Crown, leave to appeal is granted.

Background

[5] The circumstances giving rise to the charges were detailed in an agreed statement 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 controlled drug methamphetamine in Auckland by Mr Doan and others. That investigation revealed that Mr Doan had imported methamphetamine concealed in machinery and food 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 personal details Mr Doan had arranged to use previously. On 21 June 2017 Mr Doan went to the 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 attempt to pay the GST on the consignment with cash was also unsuccessful as this was not an accepted form of payment.
[8] The consignment was subsequently inspected by New Zealand Customs and found to contain 7.6 kgs of methamphetamine concealed within a silver metallic cylinder. Pursuant to the New Zealand Drug Price Index (August 2017), 7.6 kgs of methamphetamine 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. Upon executing a search warrant at Mr Doan’s home on 7 December 2017 the police located both the van used to collect the 11 June consignment and under Mr Doan’s house the seven boxes of sriracha chilli sauce each containing 24 plastic bottles. The police also found an electronic money counting machine, $10,000 in bundles of $50 notes and rifles and ammunition in a gun case.
[10] Testing revealed that the sauce contained 783.5 grams of pure methamphetamine which had the potential to yield between approximately $200,000 and $400,000. Messages on Mr Doan’s phone analysed by the police revealed connections 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 into New Zealand from Bangkok comprising four boxes each containing six large tins labelled “Chillies Paste, Chua Hah Seng”. The consignment was intercepted by New Zealand Customs and forensic testing showed that it contained 9.6 kgs of methamphetamine which, if sold in kilogram amounts, had the potential to yield between $2.4 million and $4.8 million.
[12] Data extracted from Mr Doan’s phone contained WeChat messages concerning the addressee details for the consignment, how the paste tins were packed and how much money would be received for the importation. In those messages Mr Doan referred to having to “take care” of the receiver and payment of the receiver. A WeChat conversation thread between late November 2017 through to early December 2017 discussed purchase of materials for extracting methamphetamine. In one of those messages Mr Doan referred to wanting to receive “dry” stuff rather than the sauce or paste products imported. He also commented in the text messages about the “previous still lying ... around here” and “now receiving more coming but he doesn’t come to make”.

Sentencing notes

[13] In accordance with the principles in Zhang v R,^[4] which was delivered only eight days prior to the sentencing, the Judge assessed the starting point by reference to both the quantity of the drugs involved and Mr Doan’s role in the enterprise. The Judge 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 point between ten years and life imprisonment.^[5] The Judge focused closely on Mr Doan’s role in the enterprise, stating:

[45] In my assessment, the role you played means that your culpability sits between 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 merely logistical. 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 others above you in the hierarchy. There is no evidence of the level of remuneration you received and whether it was a fixed fee or a portion of the profit.

[46] The operation was certainly sophisticated. The innovation in concealing methamphetamine within sauce which required chemical extraction is a sophisticated method of concealment. That does not mean that you necessarily played a sophisticated role. There was, however, a high degree of planning and premeditation. There is no evidence that you were to take an active role in supply to consumers; although I note that cash was found at your home, along with an electronic money counter. You say this was because you received cash for tiling jobs. You involved or recruited others and consequently placed them in jeopardy. You were a critical “on the ground” figure with some influence, involved in the extraction process and in paying for and arranging receivers.

[14] The Judge further noted that it was evident Mr Doan was motivated by commercial benefit and there was no suggestion that he offended to fuel an addiction or acted under duress. His concern about the quality of the product and his wish to receive “dry” stuff in the future showed his close connection with the profitability of the operation and an ongoing commitment to the dealing which was not consistent with a role at the lower end of “significant”.^[6]
[15] Having regard both to pre-Zhang authorities and the specific examples in Zhang, the Judge considered that Mr Doan’s culpability was much greater than that of Mr Zhang and sat closer to Mr Yip’s, whereas the quantity of drugs was almost the same as Mr Zhang’s but far less than Mr Yip. This led to the Judge to adopt a starting point of 17 years imprisonment.^[7] This was then uplifted by 18 months to reflect the charge of possession for supply.
[16] In assessing the discount for personal circumstances the Judge took into consideration that:

(a) only a modest discount was justified for language and cultural difficulties, given that Mr Doan had lived in New Zealand for over ten years, has family here and, in the Judge’s assessment, imprisonment would not be significantly more severe for him despite limitations in his English-speaking abilities;^[8]

(b) his lack of criminal history together with support of family pointed to a likelihood that he could again become a productive member of society;^[9] and

[17] There being no personal aggravating features, the Judge concluded that a discount of 18 months was appropriate to account for all those factors.
[18] Although it appeared that negotiations on the summary of facts had been in train for some weeks prior to trial, the Judge regarded the resolution by the entry of a guilty plea on the first day of trial as late in the process. She rejected the submission for Mr Doan that 15 per cent was warranted, allowing the discount of 10 per cent proposed 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. Like Mr Zhang in that case, I find that your knowing participation in substantial commercial-scale drug offending had potentially very serious social consequences. Balanced against that, in part through lack of mitigating factors, you are already to serve a very lengthy sentence. By my calculation you are eligible for parole when you have served just over 5 years. I have carefully considered whether this period adequately satisfies the deterrence objective of sentencing and holds you accountable for your conduct in real terms. I am satisfied that it falls short of that measure. I am also satisfied that my analysis is consistent with the examples in the case of Zhang, where minimum 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 the uplift 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 the three issues identified at [3] above.

Starting point

[21] Mr de Groot described the case as an example of the elasticity of the role descriptors adopted in Zhang. While acknowledging the absence of any challenge to the 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, was responsible for purchasing arrangements, was personally connected with source suppliers or designed the means of freight and concealment;

(b) there was no suggestion that Mr Doan was personally connected to organised crime, international or domestic;

(d) there was no evidence that Mr Doan had any hand in the acknowledged sophisticated aspects of the offending.

[23] Mr de Groot emphasised that Mr Doan undertook practical tasks, including communicating with Customs, paying various import duties and attending Auckland Airport and a customs broker with the intention of uplifting consignments, notably in a conspicuously marked work vehicle. He observed that Mr Doan was not at arm’s length from the riskier “on the ground” functions, as was said to be generally the case with those higher up the chain of command. Furthermore, with reference to the methamphetamine contained in the siracha chilli sauce importation, Mr Doan acted merely as a store-person which was indicative of organisational powers outside his immediate view.
[24] In consequence Mr de Groot submitted that the “impersonal” facts of the offending were suggestive of a person trusted to facilitate the logistical “on the ground” aspects of importation in exchange for fees and exposed to the high levels of risk that often attach to non-leading participants. While acknowledging there was sufficient evidence of all five indicia in the “significant” category, Mr de Groot suggested that Mr Doan’s case was the archetype of such a role and should have been sentenced on that basis. He contended there was no suggestion that any of the factors in the “leading” category applied.
[25] After reviewing the features of several recent judgments^[11] Mr de Groot submitted it would be artificial to draw fine culpability distinctions between Mr Doan’s offending and that in Pai and Wan, where starting points of 15 years were adopted, and similarly that of Mr Zhang. He suggested that Mr Doan’s offending was markedly less serious than both Fangupo (a 17 year starting point for a dual-lead offender and an importation exceeding 20 kgs) and Rahman (a 18 year starting point for 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 agree with Mr Radich’s analysis that Mr Doan had a more active role than either Pai, a receiver who took steps to extract methamphetamine from its packaging, and Wan whom this Court described as “primarily a catcher”.^[12] We also agree that Mr Doan’s role was similar to that of Fangupo but less significant than Rahman.
[27] The Zhang example is perhaps most useful. Although Mr Zhang’s appeal was confined to the imposition of an MPI, this Court considered that a starting point of 15 years’ imprisonment would have been appropriate instead of the 17 years imposed because, 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 was involved in directing others in the operation but rather appeared to have been receiving instructions from someone higher up the chain of command.^[13]
[28] In our view the Judge correctly viewed Mr Doan’s culpability as higher than Mr 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 and package the importation of methamphetamine, Mr Doan was based in New Zealand and assumed greater organisational responsibility of the importations;

(c) Mr Doan involved and recruited others to assist in the importations and arranged payment for those recruited as receivers;

(d) unlike Mr Zhang Mr Doan had a close connection with the profitability of the operation and an on-going commitment to the subsequent supply of methamphetamine;

(e) the presence of an electronic money counter and equipment for extraction at Mr Doan’s home suggested a more expansive role and a greater degree of responsibility in the wider operation than in the case of Mr Zhang; and

(f) the fact a number of firearms and significant amounts of cash were found in Mr Doan’s home was suggestive of a significant enterprise and connections to organised crime.

For these reasons we consider that the selection of a 17 year starting point was plainly justified.

[29] As Mr de Groot did not challenge the uplift of 18 months for the charge of possession for supply we do not need to consider it further. We observe however, that given the quantity of methamphetamine for supply and the circumstances of that offending, 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 previous convictions, family support, rehabilitative prospects and the period of restrictive EM bail conditions, Mr de Groot observed that the adjustments allowed by the Judge were not 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 the starting point. Addressing the components individually, he submitted that a 7.5 per cent discount was appropriate to mark the absence of previous convictions alone. A further discrete reduction was appropriate to reflect family support and rehabilitative potential. He further noted that the pre-sentence report evidenced Mr Doan’s limitations with English and, while not isolated in the same way as a foreign national, suggested that his language will result in his remaining socially isolated in a custodial setting.
[31] Finally, while accepting that a Court is not required to adjust on a full-parity basis, he submitted that a reduction of 10 and a half months (4.7 per cent) would have been appropriate to reflect the time spent on EM bail with a 24-hour curfew. However Mr de Groot accepted Mr Radich’s point that the duration was 18 months, not the 21 months adopted in his calculation.
[32] Mr Radich acknowledged that a discount was warranted for the time Mr Doan spent on EM bail, while noting that quantification is not a mathematical exercise but requires an evaluative assessment of all the circumstances of a particular case. He also acknowledged that a discount for Mr Doan’s previous good character was appropriate but described it as necessarily limited by the fact that there was no evidence of positive contributions to society.^[14]
[33] Mr Radich submitted that there was no evidence before the Judge to support an argument that a sentence of imprisonment would be disproportionately severe for the appellant by reason of cultural isolation and he submitted that the Judge correctly exercised her discretion not to allow a discount for this factor. On our reading of the sentencing notes, the Judge did include this factor in her assessment of personal discounts but viewed it as supporting only a “modest” discount.^[15]
[34] Cumulatively, however, we consider that an 18 months adjustment adequately reflected the relevant considerations which were correctly identified by the Judge. We do not consider that any further discount for Mr Doan’s personal circumstances was warranted.

MPI

[35] Mr de Groot relied inter alia on Royal v R, where an MPI was quashed to recognise the appellant’s “personal circumstances and potential for rehabilitation”,^[16] and Prasad v R, where this Court said it should be hesitant to impose an MPI upon a defendant who presents with a low likelihood of reoffending.^[17] He submitted no MPI was required in this case by s 86(2) of the Sentencing Act 2002 having regard to the considerations traversed in the context of the personal circumstances adjustment.
[36] However in view of this Court’s observations in relation to Mr Zhang^[18] we agree with Mr Radich’s submission that an MPI was justified in this case for two reasons. First, like Mr Zhang, Mr Doan was involved in commercial scale drug dealing with potentially devastating social consequences. Secondly, unlike Mr Zhang, Mr Doan did not provide assistance to the authorities or show genuine remorse for his offending. His pre-sentence report noted that he claimed he was innocent of any wrong-doing and that he was a victim of circumstance. While noting the report writer’s assessment that Mr Doan’s risk of reoffending was low and no harm was posed to the community, the Judge observed that Mr Doan had not yet achieved real insight into 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 which at 42 per cent was comparatively modest.

Conclusion