Dinh v Police

[2024] NZHC 1360

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-80

[2024] NZHC 1360

BETWEEN

HA HAI DINH

Appellant

AND

NEW ZEALAND POLICE

Respondent

CRI-2024-404-81

BETWEEN

TUAN ANH MAI
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	6 May 2024
Counsel:	C S Fredric for Appellants J E Bragg for Respondent
Judgment:	28 May 2024

JUDGMENT OF BREWER J

This judgment was delivered by me on 28 May 2024 at 11 am

Registrar/Deputy Registrar

Solicitors/Counsel:

C S Fredric (Auckland) for Appellants

Kayes Fletcher Walker (Manukau) for Respondent

DINH & MAI v POLICE [2024] NZHC 1360 [28 May 2024]

Introduction

[1]    On 21 February 2024, Judge G A Andree Wiltens sentenced Mr Dinh to two years and seven months’ imprisonment.1 He sentenced Mr Mai to two years three months’ imprisonment.2 Both now appeal their sentences. They submit that their respective sentences are manifestly excessive. Each submits that a short term of imprisonment should have been imposed so that Mr Dinh (who does not have a home detention address) should be given leave to apply for home detention and Mr Mai (who does have an address) should be sentenced to a term of home detention.

[2]    Mr Dinh and Mr Mai are Vietnamese nationals. Both are overstayers. Both became involved with the cultivation of cannabis on a significant commercial scale.

[3]    Judge Andree Wiltens sentenced Mr Dinh on one charge of cultivating cannabis (jointly with Mr Mai) and a second charge of cultivation of cannabis not involving Mr Mai. He was also for sentence on a charge of driving whilst disqualified. The Judge sentenced Mr Mai on two charges of cultivating cannabis. The first was the joint charge with Mr Dinh and the second was a separate charge of cultivation of cannabis not involving Mr Dinh.

[4]The Judge summarised the background:

[4]        On 27 September 2022 the  police  executed  a  search  warrant  at 24 Derbyshire Lane, Karaka. They knocked on the door, no response. They broke down the door and went inside and called out, no response. You two were found hiding up in a concealed area in the ceiling. It took a police dog to find you. You clearly, were fully aware of the fact that the police were looking for you because of what you had been doing, namely cultivating cannabis.

[5]        The house had a number of rooms that were sealed off. There were grow tents inside those rooms, there were heat lamps and timers to turn them on and turn them off at the right times to make the plants grow faster. There were watering systems for exactly the same reason; and there were carbon filters to make sure that no one could smell what was going on. Significantly, each of the rooms had plants at a different stage of growth. That shows that what was happening is a continuous supply of cannabis. As soon as one room is cultivated it is replanted and the next one comes on and then the next one and the next one, it just carries on. This reflects a very serious commercial enterprise.

1      Police v Dinh [2024] NZDC 4127.

2      Police v Mai [2024] NZDC 4112.

[6]        At the time of the raid the police found 338 cannabis plants in the house and Mr Dinh was in possession of $3,500 cash. So those are the facts in relation to the charge that affects you both.

[7]        Mr Dinh, your second house where cannabis was being cultivated was 77 Reeves Road, Pakuranga. Here there were three bedrooms set up for the growing of cannabis in the same way as the first address that I have described and there were 90 cannabis plants found. That was just a few days later.

[8]        Mr Mai, your second address was 7 Grierson Place, Pukekohe. When the police went there they found 136 plants. So, the two addresses where the fewer plants are found are exactly the same, commercial enterprises for the growing of cannabis.

[5]The structure of the sentences is aptly summarised by the respondent:

5.2His Honour imposed the following sentences:

Mr Dinh

(a)a starting point of 4 years’ imprisonment for the two cultivation charges;

(b)a 5% discount for personal circumstances including for an “effective clean record”;

(c)an unspecified discount for time spent on EM bail;

(d)a 20% guilty plea discount; and

(e)ordered a 6-month disqualification.

Mr Mai

(f)a starting point of 4 years’ imprisonment for the two cultivation charges;

(g)a 5% discount for personal circumstances including for an “effective clean record”;

(h)a 4 month discount for cooperation with Police;

(i)a 20% guilty plea discount; and

(j)an unspecified discount for time spent on EM bail.

Appellants’ submissions

[6]    Mr Fredric for the appellants, in careful submissions, submits that the Judge erred in the following respects:

(a)The starting point of four years was too high;

(b)The discount of 5 per cent for personal mitigating factors was insufficient; and

(c)The discount of five months for the more than 15 months each appellant spent on EM bail was insufficient.

(a)The starting point

[7]    Mr Fredric submits that the guideline judgment of R v Terewi3 has been modified in its effect by the emphasis on role of an offender following from the decision of the Court of Appeal in Zhang v R,4 a case which dealt with methamphetamine offending.

[8]    Mr Fredric refers me to Dinh v R,5 a decision of Woolford J. That involved a sentence appeal by four appellants who had pleaded guilty to being involved in the cultivation of 6,483 plants:

[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 Terewi. 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.

[9]    Mr Fredric submits that the summary of facts is silent as to the role of the appellants in this case, but that manifestly they were no more than “farmers” or “gardeners”. Ms Bragg for the respondent accepts that.

[10]   When Mr Mai was interviewed by police, he explained he was paid a lump sum of $7,000 to water and care for the plants at the two houses. He was going to be paid a further sum once the plants were harvested, but this had not happened by the time he was caught.

[11]   Mr Dinh was not able to be interviewed by police because he does not speak English.

3      R v Terewi [1999] 3 NZLR 62.

4      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 64.

5      Dinh v R [2023] NZHC 3667.

[12]   Bearing in mind the number of plants and the restricted role of the appellants, Mr Fredric submits that a starting point of no more than three years’ imprisonment was available to the sentencing Judge.

(b)Discount for personal mitigating factors

[13]   On the second ground of appeal, the discount to be given for the appellants’ personal mitigating factors, Mr Fredric submits that Mr Dinh should have received a discount of 10 to 15 per cent and Mr Mai should have received a discount of 15 to 20 per cent.

[14]   As to Mr Dinh, Mr Fredric accepts he is an overstayer and that he has convictions relating to driving offences. But Mr Fredric submits that Mr Dinh is of largely good character and his lack of English means that any custodial sentence would be particularly harsh on him. This is a factor that must be taken into account pursuant to s 8(h) of the Sentencing Act 2002.

[15]   As to Mr Mai, Mr Fredric submits the Judge was in error not to give a discount for the factors set out in the cultural report provided by Mr Mai.  This  states  that  Mr Mai moved to New Zealand on a student visa in 2010 to study English, and then for a Diploma in Business Management. He has no relatives in New Zealand.

[16]   In 2012, Mr Mai’s father died. His father was the main breadwinner for the family and Mr Mai felt an obligation to provide financially for his family in Vietnam. The report-writer noted that filial piety is an important concept in Vietnamese culture. Mr Mai had a cultural obligation to get money and send remittances for the upkeep of his family.

[17]   The report says that prior to the Covid-19 pandemic, Mr Mai worked as a tiler. He lost his job because of the pandemic and then accepted the job of tending to the cannabis plants. Mr Fredric submits there is a clear nexus between Mr Mai’s cultural background and his decision to become involved in cannabis offending.

[18]   Mr Fredric points out that Mr Mai speaks good English. He has a criminal history in New Zealand limited to three traffic offences. Importantly, he co-operated

with police and told them about the second address at which he was cultivating cannabis. The inference is that the police might not have found that cannabis operation without Mr Mai’s co-operation.

(c)Discount for time spent on EM bail

[19]   As to the third ground of appeal, the discount for time spent on EM bail, both appellants as at the date of sentencing  had been  on EM bail  for over 15 months.  Mr Dinh was granted EM bail on 3 November 2022 and Mr Mai was granted EM bail on 27 October 2022. Mr Fredric submits:

36.There were two delays in sentencing the appellants, which were primarily attributable to scheduling issues rather than any actions on the part of Messrs Mai and Dinh. Specifically:

•On 1 June 2023, the appellants entered guilty pleas and were remanded on continued EM bail for sentencing.

•On 1 September 2023, sentencing was adjourned because no interpreter had come to court; and

•On 21 November 2023, sentencing was adjourned because the presiding Judge was from out of town and had not been provided with the court files in sufficient time to prepare for the hearing.

•Sentencing eventually proceeded on 21 February 2024.

[20]   Mr Fredric submits that the Court of Appeal has observed that credit for time spent on EM bail generally ranges between 30 and 50 per cent, and that an allowance of up to 50 per cent is not uncommon. This is not, however, an upper limit.

[21]   In the present case, given that five-and-a-half months of EM bail was served because of administrative issues outside of the appellants’ control, each should receive a credit of at least eight months.

Discussion

[22]   I must allow an appeal against sentence if I am satisfied there has been an error and that a different sentence should be imposed. If a sentence is manifestly excessive then that is an error which must be corrected.

[23]   First, I do not accept Mr Fredric’s submission that the starting point of four years was not available to the Judge. Category 2 in R v Terewi (small-scale cultivation for profit) has a starting point range between two and four years. Category 3 (large- scale commercial growing, usually with a considerable degree of sophistication and organisation) has a starting point of four years or more.

[24]   I accept, of course, that the starting point for a particular defendant is influenced by their role in the cultivation. Self-evidently, someone employed as a “gardener” who does not share in the profit will be regarded as less culpable than the person who set up the operation and who will take the profit.

[25]   Here, the Judge adopted a starting point at the top of Category 2 and the bottom of Category 3. He was right to do so because:

(a)The operations were sophisticated and they were not small-scale.

(b)They were ongoing operations with plants being grown at graduated levels of maturity.

(c)Mr Dinh and Mr Mai were clearly working without direct supervision to maintain the operations.

(d)Importantly, while they were jointly responsible for the Karaka operation, each was solely responsible for another operation.

(e)Both appellants offended to gain money in the region of thousands of dollars. The inference is that they had been employed for some months.

[26]   As for discounts, the appellants were fortunate to be afforded a 20 per cent discount for their pleas of guilty:

(a)The appellants were arrested on 27 September 2022 and first appeared on 28 September 2022 when they were remanded in custody.

(b)Mr Mai was granted EM bail on 27 October 2022 and Mr Dinh on     3 November 2022.

(c)The appellants sought sentence  indications  which  were  given  on  24 May 2023. They declined them.

(d)The appellants then entered guilty pleas.

[27]The strength of the evidence against each appellant was overwhelming.

[28]A 15 per cent discount for pleas of guilty would have been within range.

[29]   A defendant should be given credit for personal characteristics where these mitigate culpability or make a particular sentence, such as imprisonment, harsher for the defendant than is usual. There are also circumstances, such as an extended period on EM bail, which should be recognised when setting the length of the final sentence.

[30]   I do not accept that Mr Mai should have been given a discrete discount for the matters set out in his s 27 report. He may well have felt a cultural obligation to provide for his family (an obligation not uncommonly present in many cultures). But that cannot be allowed to reduce his culpability for turning to serious criminal activity.

[31]   As to previous good character, I accept that since being in New Zealand the appellants have incurred only driving offence convictions. But what tells against good character credit is the fact that both are overstayers. They have lived in New Zealand in breach of their obligations to leave. I suspect that is partly why they turned to crime: they could not seek employment in legitimate enterprises if that might attract the attention of the authorities.

[32]   I accept that the appellants are entitled to credit for the time they spent on EM bail.6 There is no arithmetical formula to be applied. The credit to be given is assessed in consideration of all the circumstances.

6      Sentencing Act 2002, s 9(2)(h).

[33]   Mr Dinh spent 474 days on EM bail (just less than 16 months). He was subject to a 24-hour curfew. The Judge gave him five months discount, about 31 per cent. It should have been a greater discount given that he was confined to the bail address without meaningful exemption for over a year. I assess that 40 per cent would be more appropriate: six-and-a-half months.

[34]   Mr Mai also spent approximately 16 months on EM bail on a 24-hour curfew and also received a five months discount. I again assess that 40 per cent would be more appropriate: six-and-a-half months.

[35]   I also consider that Mr Dinh is entitled to a discount because, not speaking English, serving a sentence of imprisonment will be harder for him than otherwise.

[36]   The Judge gave both appellants a general discount of 5 per cent for their personal characteristics. As I have said, they are not entitled to good character discounts and so the 5 per cent discount is generous to Mr Mai and adequately accounts for the extra hardship to Mr Dinh of a prison sentence.

[37]   The additional one-and-a-half months I would allow each appellant for time spent on EM bail has to be seen against the overall test of whether the end sentence is manifestly excessive. In view of my finding that a lesser discount for pleas of guilty was within range, I cannot say that the end sentences are manifestly excessive.

Decision

[38]The appeals are dismissed.

Brewer J