BETWEEN VAN THONG DINH HUU LE THANH QUYET PHAN BINH HIEN NGUYEN Appellants AND THE KING Respondent

[2023] NZHC 3668

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2023-488-77 CRI-2023-488-78 CRI-2023-488-79 CRI-2023-488-85

[2023] NZHC 3668

BETWEEN

VAN THONG DINH HUU LE
THANH QUYET PHAN BINH HIEN NGUYEN

Appellants

AND

THE KING

Respondent

Hearing:	7 December 2023
Appearances:	C Fredric for Appellants D Cole for Respondent
Judgment:	13 December 2023

JUDGMENT OF WOOLFORD J

Solicitors:           Crown Solicitor, Whangarei Counsel: C S Fredric, Auckland

DINH v R [2023] NZHC 3668 [13 December 2023]

[1]    Van Thong Dinh, Huu Le, Thanh Quyet Phan and Binh Hien Nguyen, were each charged with cultivating cannabis at Taheke in Northland between 28 August 2022 and 30 November 2022 following execution of a search warrant at a rural address on 30 November 2022. Each defendant entered guilty pleas in the Kaikohe District Court on 13 April 2023.

[2]    On 20 October 2023, Judge M Howard-Sager sentenced the four defendants as follows:1

(a)Van Thong Dinh: four years and two months’ imprisonment with a minimum period of imprisonment (MPI) of two years.

(b)Huu Le: four years and seven months’ imprisonment with an MPI of two years.

(c)Thanh Quyet Phan: four years and two months’ imprisonment with an MPI of two years.

(d)Binh Hien Nguyen: three years and 10 months’ imprisonment with an MPI of one year and eight months.

[3]Each defendant now appeals against sentence on the basis that:

(a)the starting point adopted was too high in light of the role of the appellants who were labourers, rather than organisers;

(b)the discounts for personal mitigating factors were insufficient; and

(c)An MPI should not have been imposed as the criterion was not met.

1      R v Van Thong Dinh [2023] NZDC 23286; R v Huu Le [2023] NZDC 23285; R v Thanh Quyet Phan [2023] NZDC 23534; R v Binh Hien Nguyen [2023] NZDC 23411.

Summary of facts

[4]    Each of the four appellants pleaded guilty to the following agreed summary of facts:

Introduction

In October 2022 the Police Money Laundering Team commenced an investigation code-named Operation PERUVIAN. This investigation centred upon the actions of an organised criminal group in the cultivation and sale of the class C controlled drug cannabis and subsequent laundering of money derived from that criminal offending.

Circumstances

At 5:30 am on 30 November 2022, Police executed a search warrant at Taheke, Northland.

Upon entry to the property, Police located a large-scale cannabis growing operation. This included an extensive quantity of maturing cannabis plants distributed through eleven (11) industrial size polytunnel grow structures. Approximately six thousand, four hundred and eighty-three (6483) cannabis plants were located in these polytunnels. These cannabis plants ranged between mature plants bearing cannabis fruit, and immature plants of approximately one foot in height. These plants received chemical nutrients and water individually via a pipe irrigation system.

Elsewhere on the property, Police located industrial amounts of macronutrient chemical fertilizers and blocks of Coco-brand hydroponic substrate (a soilless growing medium).

Yield and value

It is considered that a mature cannabis plant would generally yield between one and three ounces of cannabis “head” material when grown in a favourable environment. Such a yield would be dependant on the ability of the cannabis grower to produce constant healthy plants over the cultivation period.

An ‘ounce’ bag of good quality cannabis head material has a ‘street level’ value of between $300 and $400 per ounce (approximately 28 grams). These figures are dependent on factors such as the quantity of cannabis purchased, the quality of the product, the dealers’ association to the drug buyer and the current availability of cannabis at that time.

Based on this information, the potential mature yield from a cannabis grow of 6,483 plants, would be between 6,483 – 19,449 ounces of cannabis ‘head’ material. Based on the ‘street value’ ounce amount of the lesser figure of $300 per ounce, this would mean that the potential value of the crop would be between $1,944,900 - $5,834,700.

It is possible for a skilled cannabis cultivator to produce up to four such crop yields over the course of a year.

The address at Taheke, Northland, is a large rural property including a dwelling house and several outbuildings. All six (6) defendants were located inside the dwelling house upon Police arrival and were responsible for cultivating and tending to the cannabis growing operation at the address.

District Court sentences

Van Thong Dinh

[5]    After reciting the summary of facts, the Judge referred to the purposes and principles set out in the Sentencing Act 2002 (the Act). The Judge identified the aggravating features of the offending as:

(a)Premeditation. This was a significant, large scale cultivation operation.

(b)Scale. Almost 6,500 cannabis plants.

(c)Potential yield. Maximum potential yield of $31 million on annual basis.

[6]    The Judge then referred to the Court of Appeal decision of R v Teriwi,2 and found that this offending fell within Category 3 of Teriwi for which a starting point of four years’ imprisonment or more should be adopted.

[7]    Although Mr Dinh had only been in the country for 24 days prior to his arrest and counsel had advised the Court that he had been living at the address for two days only, the Judge found that he was equally as responsible as the other defendants:3

…It is clear to me that you and your co-offenders, your four countrymen, were all in this together.

[8]    The Judge was of the view that there could have been no other reason for    Mr Dinh to come to New Zealand, but to collude with his co-offenders and engage in this cultivation with the aim of making a significant amount of money. The Judge, therefore, adopted a starting point of six years’ imprisonment, which is close to the maximum sentence of seven years’ imprisonment.

2      R v Teriwi [1999] 3 NZLR 62 (CA) at [4].

3 At [16].

[9]    The Judge then gave a 10 per cent discount to Mr Dinh on the basis that he was in New Zealand lawfully and a prison sentence would be harder for him because of his lack of English proficiency and different culture. The Judge also gave Mr Dinh a discount of 20 per cent for his guilty plea. The overall discount of 30 per cent, therefore, took Mr Dinh’s end sentence down to four years and two months’ imprisonment.

[10]   The Judge then referred to the Crown request for an MPI and noted the two- step test required for its imposition. First, the maximum length of the sentence should be fixed and then, if satisfied that the normal minimum period of one third of the sentence is insufficient to meet one or more of the purposes of punishment, deterrence or denunciation or need to protect the community, the Court can impose an MPI.

[11]   The Judge referred to the Court of Appeal decision of Tuau v R,4 where the Court said that s 86 can be used when the offending is so serious that release after one third of the sentence would plainly constitute an insufficient response in the eyes of the community, even though there may be no on-going safety risk.

[12]   The Judge said she was mindful that she had not been referred to any caselaw that would justify an MPI for this type of offending but stated that the community would be very concerned if Mr Dinh was only to serve a period of 17 months’ imprisonment given the scale of the operation. The Judge indicated that she would therefore deal with Mr Dinh in the same way that she had with Mr Le. That would ensure consistency. Even though he was only at the address for a very short period, the Judge thought it clear that his intent was to be part of the operation. On that basis, the Judge imposed a MPI of two years’ imprisonment as she had for Mr Le.

Huu Le

[13]   After again reciting the summary of facts, the Judge noted Mr Le’s explanation that he was hired by a white male to do some building work on a house and that he was to be paid $5,000 per week but knew nothing about the cannabis.

4      Tuau v R [2018] NZCA 623 at [52].

[14]   The Judge then repeated the relevant purposes and principles of the Act and set out the aggravating features of the offending.

[15]   The Judge again referred to Teriwi5 and found the offending fell within Category 3, which meant that a starting point of four years’ imprisonment or higher should be adopted.

[16]   The Judge referred to counsel’s submission that Mr Le was merely a labourer or gardener who performed manual tasks in exchange for a wage. Because of Mr Le’s lower-level role, counsel submitted that the Judge needed to step back and impose a starting point of only three years’ imprisonment. Although counsel submitted that the cultivation did not result in a high level of harm because there was only a three-month period between the date the property was purchased, and the cannabis was found by the Police, the Judge considered that in reality, the potential of the operation was “absolutely significant”.6

[17]The Judge stated:7

[15]   Whilst [counsel] tries to convince me that your role was low level, it  is really clear to me that you and your fellow countrymen were all in this together. This was dependent on each of you working hard together to ensure the success of the operation. Without your input, the crop could well have failed. You have accepted responsibility for growing the cannabis. That is why you pled guilty. If there was any dispute about that, a disputed facts hearing should have been held and one was not requested. It is clear to me that even though you may not have been the mastermind behind this, you certainly knew what you were doing. There is evidence of sophistication. The potential yield shows that you are all working very competently together to achieve a maximum result.

[18]   The Judge noted that Mr Le had stayed in New Zealand after his visitor’s visa had expired. He was in debt when he came to New Zealand and, in the Judge’s view, this was an opportunity for him to make money through illegal activity. The Judge, therefore, adopted a starting point of six years’ imprisonment.

5      R v Teriwi, above n 2.

6      R v Huu Le, above n 1 at [14].

7      R v Huu Le, above n 1.

[19]   Mr Le was facing another charge of assault with a weapon, to which he had also pleaded guilty. The Judge added a further six months to the starting point, to make the end starting point six years and six months’ imprisonment.

[20]   The Judge then gave Mr Le a five per cent discount on the basis that he would have a difficult time serving a sentence of imprisonment in New Zealand. The Judge also gave Mr Le a discount of 20 per cent for his guilty pleas. The overall discount of 25 per cent, therefore, took Mr Le’s end sentence down to four years and 10 months’ imprisonment, which included both charges.

[21]   The Judge then went on to consider the Crown’s request for an MPI. The Judge referred to the two-stage test to be applied and the case of Tuau in which the Court said that the central consideration must be culpability which necessarily is increased by matters such as unusual callousness, extreme violence, vulnerable or multiple victims, and serious actual or intended consequences.8 The Judge also referred to the Court of Appeal’s comment in Zhang v R, that:9

It is deterrence, denunciation and accountability that are likely to be at the forefront of decisions in drug cases involving the imposition of a minimum period of imprisonment.

[22]   The Judge concluded that a term of 19 months’ imprisonment (being one third of the end sentence of four years and 10 months’ imprisonment) did not reflect the seriousness of the offending, nor did it take into account the need to really show the community and Mr Le that “this is not okay”. On that basis, the Judge imposed an MPI of two years.

Thanh Quyet Phan

[23]   At the outset of her sentencing notes, the Judge again recited the summary of facts before noting the purposes and principles of the Act, including the need for consistency between co-offenders. The Judge then referred to the aggravating features of the offending – premeditation, scale, and yield.

8      Tuau v R, above n 4.

9      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 64 at [171].

[24]   The Judge made it clear that she was rejecting counsel’s submissions that the starting point should only be three years’ imprisonment because of Mr Phan’s lesser role as a gardener. The Judge stated:10

… it is very clear to me that this offending was carried out by you, four of your fellow countrymen all from Vietnam and that you were all engaged in this cannabis growing operation.

[25]   The Judge commented that the success of the operation was dependent on all of them fulfilling their role so that the maximum cultivation could result. The Judge said Mr Phan needed to be held equally responsible for the cultivation. A starting point of six years’ imprisonment was therefore again adopted by the Judge.

[26]   As to personal mitigating factors, the Judge noted Mr Phan’s remorse and the difficulty for him in serving a sentence of imprisonment in New Zealand in giving him a 10 per cent discount. A 20 per cent discount for Mr Phan’s guilty pleas was also granted, which brought his final sentence down to four years and two months’ imprisonment.

[27]   As to the Crown’s request for the imposition of an MPI, the Judge repeated her comments about the two-stage process and the cases of Tuau v R and Zhang v R. The Judge concluded:11

… when I reflect on the need to deter, denounce and hold you accountable and the fact that this was such serious offending of its type, it is my view that a minimum period of imprisonment is warranted in these circumstances.

On that basis, the Judge again imposed an MPI of two years.

Binh Hien Nguyen

[28]   In sentencing Mr Nguyen, the Judge again recited the summary of facts and identified the purposes and principles of sentencing set out in the Act. The Judge again repeated the aggravating features of the offending. The Judge said the offending

10     R v Thanh Quyet Phan, above n 1 at [28].

11 At [51].

clearly fell within Category 3 of R v Terewi,12 for which a starting point of four years’ imprisonment or more is warranted.

[29]   The Judge recorded counsel’s submission that Mr Nguyen was merely a hired labourer whose job it was to construct the polytunnels. The Judge commented that whether that was solely his role or not, her view was that they were all in it together. Without Mr Nguyen’s contribution and the building of the polytunnels, the operation may not have been as successful as it looked likely to be. A starting point of six years’ imprisonment was adopted to be consistent with the co-offenders.

[30]   As to Mr Nguyen’s personal mitigating factors, the Judge gave Mr Nguyen a 10 per cent discount for being on a valid visa and the difficulty involved in serving a sentence of imprisonment in New Zealand. The Judge then gave a full 25 per cent discount for Mr Nguyen’s guilty plea on the basis that Mr Nguyen’s lack of English meant there was a delay in obtaining clear instructions for him.

[31]   A total discount of 35 per cent therefore brought the starting point of six years’ imprisonment down to three years and 10 months’ imprisonment.

[32]   As to the Crown request for an MPI, the Judge noted that she had imposed an MPI of two years on Mr Nguyen’s co-offenders to reflect the response of the community and the sheer scale of the operation. Because she had given Mr Nguyen a greater discount for personal mitigating factors than the others, she imposed an MPI of 20 months’ imprisonment on Mr Nguyen.13

Discussion

Starting point

[33]   In submissions tendered in respect of two other Vietnamese charged with cultivation of cannabis,14 the Crown notes that the guideline judgment of Terewi has not been updated to reflect recent developments in modern sentencing practice,

12     R v Teriwi, above n 2.

13     R v Binh Hien Nguyen, above n 1 at [18].

14     R v Nguyen and Tran Auckland District Court CRI-2022-044-002042, 6 September 2023.

particularly for drug-dealing offending. For example, sentencing for methamphetamine offending has moved away from the strict quantity or value-based banding to an integrated approach examining an offender’s role (lesser, significant, leading) within the wider framework of sentencing bands.15 This adjustment is based on understanding that the defendant’s role in the wider drug operation is an important part of the required “full evaluation of the circumstances to achieve justice in the individual case” that must be undertaken in sentencing.16 The Supreme Court in Berkland held that role has a fundamental impact on culpability, and one that is more significant than can be accommodated by simply moving within bands.17

[34]   There is only one sentence in the agreed summary of facts that relates to the roles of the appellants:

All six (6) defendants were located inside the dwelling house upon Police arrival and were responsible for cultivating and tending to the cannabis growing at the address.

[35]   The summary does not allege that any of the appellants were involved in the purchase or lease of the property, the sourcing of the infrastructure required for the cannabis cultivation including the polytunnels, the sourcing of the plant material, the recruitment of other participants, the transport and/or sale of the dried cannabis or any activities to launder the proceeds of sale. There is also no evidence of any specific monetary gain by the appellants.

[36]   On the other hand, the Police had seemingly reliable evidence about those persons who had purchased the property and set up the cannabis cultivation operations.

[37]   An appendix to the search warrant application for the property at Taheke, Northland,18 discloses that a woman named [redacted] purchased the property at Taheke on 29 August 2022.

15     Zhang v R, above n 9, at [104].

16     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [38].

17     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [63]–[64].

18 The Crown opposed the admission of the appendix to the search warrant application in this appeal on the basis that the evidence was not fresh and could have been presented prior to sentencing. It was however part of a disclosure and had been referred to by counsel at sentencing. In any event, it would not be in the interests of justice to exclude it from consideration in this appeal.

[38]   On 25 October 2022, an anonymous community source told Police that he was not sure whose name was on the title, but that [redacted] bought this farm:

They’ve just finished setting up and farmers are up there. In my calculation the clones should be inside by now.

[39]   Then on 27 October 2022, the anonymous community source contacted Police again with the following information:

This is what’s going to happen when [redacted]’s farm is ready. The amount of cannabis they produce is too big, so they harvest and dry every second day. Then it is dropped off to the receiver. Cash comes back 3-5 days later. If you want to get [redacted], you need to get him when he picks up this cash. The cash one to Vietnam the next day. I don’t think [redacted] will go the farm often, but will check the quality of the cannabis and pick up the cash in Auckland.

[40]   Based on information received, Police enquiries and intelligence data, the Police believed that the Taheke property was linked to [redacted], who has a history of purchasing properties which are then used to cultivate cannabis. The Police also believed that [redacted] was engaged by [redacted] to act as the purchaser in order to conceal his involvement in the cannabis growing operation at that address.

[41]   It is obvious then that there was then one or more persons who set up and played a leading role in the cannabis growing operation. It was not any one of the appellants. The appellants could be seen as “the farmers” who were referred to by the anonymous community source in his contact with the Police on 25 October 2022, “They’ve just finished setting up and farmers are up there”. As “farmers”, the appellants could be seen as playing a substantial, but not necessarily a leading role.

[42]   The Judge treated all four appellants equally when setting a starting point.     It did not matter, for instance, that Mr Dinh may have been at the property for only two days:19

Even though Mr Fredric submits that you were only at the property for two days before arrest, I have read the pre-sentence report which tells me that when you were in Vietnam you were financially sound and that all of your children and grandchildren remain in that country. On that basis, it is my view that there can be no other reason for you to come here but to collude with your co- offenders and engage in this cultivation with the aim of making a significant

19     R v Van Thong Dinh, above n 1, at [16]–[17].

amount of money. In my view, you are equally as responsible as your co- offenders and so I take a start point of six years’ imprisonment.

[43]   I do not, however, consider that the Judge necessarily fell into error when she treated the appellants equally. However, with respect I consider that she did fall into error in setting a starting point of six years’ imprisonment for all the appellants.

[44]   Settlement of the purchase of the property only occurred on 29 August 2022, some three months before execution of the search warrant. The operation then obviously took some time to set up. The anonymous community source opined that by his calculation “the clones should be inside by now” on 25 October 2022. This was a month before execution of the search warrant. The “farmers” were apparently on site for only a few weeks prior to their arrest. The period of the offending was therefore not lengthy.

[45]   This was an operation commenced by the Police Money Laundering Team, but there have been no allegations made or evidence advanced about any financial gain to the appellants. Nor is there a suggestion that any of the appellants had the resources to finance the operation. The Crown case is that the property was bought and set up by others. There is also no evidence that any of the appellants had authority over others in the hierarchy. Nor are they alleged to be members of an organised criminal group.

[46]   Giving due consideration to the appellants’ roles as “farmers”, it is my view that a starting point of no more than four years’ imprisonment is appropriate. This is consistent with offending at the lower end of category 3 in Teriwi. Higher starting points would be more appropriate for those persons who set up the operation and were to directly profit from the sale of the cannabis.

Guilty plea discount

[47]   The Judge gave a 20 per cent discount to Mr Dinh, Mr Le and Mr Phan for their pleas of guilty, but gave a 25 per cent discount to Mr Nguyen. She explained:20

20     R v Binh Hien Nguyen, above n 1, at [16].

Initially, my inclination was to give you a 20 per cent discount to be consistent with your co-offenders. But Ms Taylor advises me today and this is supported by the Crown as well, that there may well have been some delay in you entering a plea much earlier due to difficulties with language barriers and her inability to get clear instructions from you. On that basis, I am going to give you the full discount of 25 per cent.

[48]   Counsel submits that this could be said of the other three appellants as well. Their English is also poor and interpreters were needed to obtain instructions from them. They were all arrested on 30 November 2023 and sought sentence indications on dates between 9 January and 14 February 2023. Sentence indications were given on 20 March 2023. They were declined, but each appellant entered guilty pleas on  13 April 2023.

[49]   Of note, the Judge who gave the sentence indications, Judge HB Shortland, had indicated that each of the appellants were entitled  to a guilty plea discount of   25 per cent. Although the sentence indication was declined, guilty pleas were entered on the same day.

[50]   In those circumstances, I am of the view that all the appellants should be treated equally with regard to a guilty plea discount and that discount should be 25 per cent as indicated by Judge Shortland.

Personal mitigating factors

[51]As to personal mitigating factors, the Judge granted the following discounts:

Van Thong Dinh	10 per cent	Imprisonment hardship and valid visa
Huu Le	Five per cent	Imprisonment hardship
Thanh Quyet Phan	10 per cent	Imprisonment hardship and remorse
Dinh Hien Nguyen	10 per cent	Imprisonment hardship and valid visa

[52]   The major complaint of the appellants is that the Judge did not give a discount for previous good character. When the issue was raised in the sentencing, the Judge said in respect of Mr Phan:21

I do question your good character, particularly given you are here illegally and also because you have been engaged in such high-level cultivation. That does not suggest to me that you are otherwise of good character.

[53]The Judge expressed similar sentiments when sentencing Mr Dinh and Mr Le.

[54]   Counsel submits that a court is required to give a good character discount for lack of previous convictions, citing Rana v R.22 Section 9(2)(g) of the Act does require a court to take into account any evidence of the offender’s previous good character to the extent that it is applicable in the case. However, in the absence of a positive contribution to the community any credit will be limited.

[55]   In the end, I am of the view that the Judge should have acknowledged the fact that the appellants were all mature men with  no  known  previous  convictions.  They were each entitled to a modest discount for previous good character. It is not a criminal offence to overstay one’s visa and the “high-level cultivation” had only been undertaken for a matter of weeks. If an offender has a lengthy criminal history or has been shown to have engaged in extensive criminal conduct over a prolonged period of time then a good character discount may well be inappropriate, but that is not the case for any of the appellants.

21     R v Thanh Quyet Phan, above n 1, at [37].

22     Rana v R [2014] NZCA 468 at [10].

[56]   In all the circumstances, I am of the view that each of the appellants should be given 15 per cent for all their personal mitigating factors, including imprisonment hardship, previous good character and remorse (in the case of Mr Phan).

Minimum period of imprisonment (MPI)

[57]   In each case, the Judge imposed an MPI, which as a percentage of the final sentence ranged from 43 to 48 per cent. In imposing an MPI, the Judge expressed similar views in relation to each appellant. The Judge acknowledged that she had not been referred to any cases where an MPI had been imposed for cultivation of cannabis, but she considered that the community would be very concerned if each appellant was only to serve a third of his sentence given the scale of the operation. A third of the sentence did not reflect the seriousness of the offending nor did it take into account the need to show the community and the appellants that “this is not okay”. Serving one third of the sentence was “not enough”.

[58]   The Judge did make reference to the purposes for which an MPI may be imposed in terms of s 86 of the Act and cited a Court of Appeal case, Tuau v R,23 which told her that s 86 can be used when the offending is so serious that release after one third of the sentence would plainly constitute an insufficient response in the eyes of the community, even though there may be no ongoing safety risk.

[59]   After careful consideration, I have reached the view that an MPI is not warranted for any of the appellants. MPIs should not be imposed as a matter of routine or in a mechanistic way. A reasoned analysis is required under s 86 of the Act, both as regards the imposition of an MPI and its length.24

[60]The factors which count against the imposition of an MPI are as follows:

(a)The absence of any unusual or abnormal features for offending of the kind in question. There is nothing that sets the offence apart from others of its type.

23     Tuau v R, above n 4.

24     Zhang v R, above n 7, at [10(n)].

(b)Although the role of the appellants can be seen to be significant, they did not play a leading role. There were others who were more culpable in the operation.

(c)The appellants were mature men aged between 38 and 55 without any known previous convictions. All pleaded guilty at an early opportunity.

(d)There is no need for personal deterrence or to protect the public as the appellants are likely to be deported from New Zealand as soon as they complete their prison sentences. There is no risk of reoffending.

(e)The appellants do not speak English well and will find imprisonment hard because of distance from their home country.

Result

[61]   Each of the appeals is allowed. The sentences imposed by Judge M Howard- Sager on 29 October 2023 together with the MPI orders are quashed and replaced with the following sentences. There will be no MPIs imposed:

(a)Van Thong Dinh: two years, five months’ imprisonment. (29 months)

(b)Huu Le: two years, eight months’ imprisonment. (32 ½ months)

(c)Thanh  Quyet  Phan:        two years, five  months’  imprisonment. (29 months)

(d)Dinh  Hien  Nguyen:        two years, five  months’  imprisonment. (29 months)

Woolford J