LE PHONG NGUYEN AND THE KING
[2024] NZHC 2974
•14 October 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-472
[2024] NZHC 2974
BETWEEN LE PHONG NGUYEN
Appellant
AND
THE KING
Respondent
Hearing: 7 October 2024 Appearances:
S N B Wimsett KC for appellant A L Fry for respondent
Judgment:
14 October 2024
JUDGMENT OF JOHNSTONE J
(appeal against sentence)
This judgment was delivered by me on 14 October 2024 at 12pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Kayes Fletcher Walker, Auckland
NGUYEN v R [2024] NZHC 2974 [14 October 2024]
[1] On 14 August 2024, Le Phong Nguyen was sentenced in the District Court at Manukau to a term of two years and 10 months’ imprisonment.1
[2]Mr Nguyen appeals against that sentence. He says that:
(a)The sentencing Judge’s starting point was too high. It should have been four years’ imprisonment, not four and a half.
(b)He should have received a 15 per cent discount for previous good character, youth and rehabilitative prospects.
(c)He should have received a 10 per cent discount, rather than the approximately five per cent discount he did receive, because his imprisonment will prevent him from meeting his responsibilities as the father of a three month old child.
[3] I must allow the appeal if satisfied that for any reason there is an error in the sentence imposed and a different sentence should be imposed.2 The focus is on the end sentence rather than the process by which the sentence is reached. I should not intervene if the sentence is within range and can be justified by accepted sentencing principles.3
[4] I must assess whether the starting point was too high, and whether the claimed discounts should have been applied. And in light of my findings, I must consider whether Mr Nguyen’s sentence of two years and 10 months’ imprisonment was manifestly excessive.
The offending
[5] The summary of facts to which Mr Nguyen pleaded guilty was extremely brief. It referred to a police investigation into the conduct of people “located in the Napier/Hawkes Bay area”, which established that those people “would drive to
1 R v Nguyen [2024] NZDC 19255.
2 Criminal Procedure Act 2011, s 250.
3 Ripia v R [2011] NZCA 101 at [15]; Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [36]; and Larkin v Ministry of Social Development [2015] NZHC 680 at [26].
Auckland to purchase cannabis in various amounts from Mr Nguyen”. It said that on ten such occasions, in the period from 19 May 2023 to 21 July 2023, Mr Nguyen sold a total of 151 pounds (68.48 kilograms) of cannabis. Another occasion of sale during that period could not be quantified. The total amount of money involved in these 11 sales was approximately $514,200.
[6] The summary referred to the termination of the investigation in Hawkes Bay on 21 July 2023, resulting in various arrests. And it described the execution of a search warrant at Mr Nguyen’s home in Auckland on 24 July 2023. During the search, the police found:
(a)around 40 pounds (18 kilograms) of cannabis plant and $120,000 in cash, in a small room; and
(b)approximately 1.7 grams of MDMA in Mr Nguyen’s bedroom.
[7] When police asked Mr Nguyen for how long he had been dealing cannabis, he said “a few months since April”. And he declined to comment further.
The charges
[8] Shortly after Mr Nguyen’s arrest on 24 July 2023, the day his home was searched, the police charged him with participating in an organised criminal group, possessing cannabis plant for sale, simple possession of the Class B controlled drug MDMA, and 16 separate, alleged instances of selling cannabis.
[9] An initial case review hearing scheduled for 15 December 2023 was rescheduled for 18 April 2024, while Mr Nguyen’s then counsel (not his present counsel, Mr Wimsett KC) engaged with the prosecution over what instances of selling cannabis were adequately established by the police evidence.
[10] A week before that hearing, the Crown Solicitor at Manukau filed a Crown Charge Notice:
(a)confirming the possession charges;
(b)amending one of the 16 separate selling charges to a representative charge of selling cannabis in the period between 19 May and 21 July 2023, particularised by stating the weight of 151 pounds set out in the summary of facts; and
(c)withdrawing the participating and the other 15 separate selling charges.
[11] At the 18 April 2024 case review hearing, Mr Nguyen pleaded guilty to the charges as then framed, in effect accepting his culpability for the possession charges and 11 of the separate selling charges that had been filed by the police, but successfully disputing the other five selling charges in the sense they were withdrawn.
The Judge’s view of the offending, and starting point
[12] In assessing the appropriate starting point to reflect Mr Nguyen’s offending, the Judge referred to the Court of Appeal’s guideline judgment in R v Terewi. 4 There, the Court of Appeal confirmed that cannabis cultivation offending should be divided into three broad categories. The most serious category, category 3:5
… involves large-scale commercial growing, usually with a considerable degree of sophistication and organisation. The starting point will generally be four years or more.
[13] The Court refrained from stating particular monetary values, or weights, for categories 2 and 3. It observed that the borderline between categories is necessarily somewhat arbitrary, and in particular that annual revenues as a measure of the scale of an operation need to be considered in dollars of the day. Nevertheless, it added that:
[11] We consider that, in 1999 values, annual revenues of more than
$100,000 (in cash or kind) will place a cultivation operation clearly within category 3 but the differences in penalty may not be great where cases are close to the borderline. The division between the categories is merely a means to give a guide to penalty in relation to a particular position on the scale of offending.
4 R v Terewi [1999] 3 NZLR 62 (CA).
5 At [4].
[14] The Judge observed that Mr Nguyen accepted the scale of his offending came within category 3, but was arguing for a starting point at the bottom of that category. However, the Judge found that:
(a)While Mr Nguyen’s role was “not leading” in the sense that he was “not the head of a cartel”, he nevertheless played “a significant role”. This was because the people travelling from Hawkes Bay to buy the cannabis dealt with Mr Nguyen, he provided the cannabis, and he took their cash. And the execution of the search warrant disclosed Mr Nguyen’s “autonomy” to the extent of being in charge of the
$120,000 cash found at his home. In other words, Mr Nguyen’s role was “a very meaningful one; it was a critical one”.
(b)Given the sheer volume of drugs and money, “I cannot see that as the lowest level of band three and a starting point of four and a half years at least must be appropriate”.
(c)Having regard to the principles of s 8(c) and (d) of the Sentencing Act 2002, that starting point “could be seen as generous to you”.
Was the starting point too high?
Mr Nguyen’s position
[15] For Mr Nguyen, Mr Wimsett submitted that the Judge fell into error by overstating the seriousness of Mr Nguyen’s role. He supported this submission by drawing attention to the brevity of the summary of facts. He said that the Judge’s assessment of Mr Nguyen’s role could not properly be inferred, and in particular that nothing in the summary describes “autonomy” or Mr Nguyen’s entitlement to the cash.
[16] Mr Wimsett further relied on submissions made before the sentencing Judge and this Court about Mr Nguyen’s account of the extent of his responsibility for the offending. And he added that, if the Crown wished Mr Nguyen to be sentenced on the basis of the aggravating fact of a significant role, it should have expressed that
assertion in its summary of facts or sought a disputed fact hearing upon receipt of Mr Nguyen’s contradictory written submissions.
[17] This said, Mr Wimsett accepted that Mr Nguyen had an “operational function” and that he expected (and received) financial advantage.
[18] Overall, Mr Wimsett submitted that a four year starting point would balance the large amounts of cannabis the subject of the offending against Mr Nguyen’s actual personal culpability.
Assessment
[19]As observed recently by the Court of Appeal:6
[46] Section 24 of the Sentencing Act 2002 contemplates that the facts upon which sentencing will be based can be agreed between the prosecution and defence. This will usually arise from the summary of facts to which the guilty plea is entered. If facts that are relevant to the determination of the sentence are disputed, the procedure contemplated by s 24(2) should be followed.
[20] As that passage suggests, s 24(2) provides a procedure to be followed when “a fact that is relevant to the determination of a sentence … is asserted by one party and disputed by the other”. Such facts are “asserted by” the prosecution by way of summary of facts. Rule 5A.1 of the Criminal Procedure Rules 2012 provides the mechanism by which the existence of disputed aspects of summaries of fact should be confirmed, as follows:
5A.1 Summary of facts
(1)At the time that a defendant pleads guilty,—
(a)the prosecutor must provide to the court and the defendant a summary of facts about the offence and the facts alleged against the defendant; and
(b)the defendant must advise the court whether the summary of facts is accepted.
(2)If the defendant does not accept the summary of facts,—
(a)the defendant must identify the facts disputed; and
6 Gebhardt v R [2024] NZCA 332.
(b)the defendant and the prosecutor must try to resolve the dispute.
(3)If the dispute is resolved, the prosecutor must advise the court of the resolution and of any agreed amendment to the summary of facts as soon as practicable.
(4)If the dispute is not resolved within 10 working days after the guilty plea is entered, the prosecutor and the defendant must notify the court of that fact and seek an indication in accordance with section 24(2) of the Sentencing Act 2002.
[21] However, it is well-established that inferences can be drawn from the summary of facts.7 In Zagros v R, the Court of Appeal observed that “[t]he purpose of a summary of facts is, as the name suggests, to record the facts of the offending.”8 In contrast, “[a] disputed facts hearing is concerned with proof of facts, not inferences that might be drawn from them.”9 In that case, when dealing with the roles that a particular defendant took in offending, it therefore added:10
The Judge was entitled to draw inferences based on the agreed summary of facts to determine what role [the defendant] played within the syndicate based on those facts. The determination of an appropriate starting point on the basis of the summary of facts and the inferences to be drawn from it is a legal question for the sentencing judge.
[22] On this basis, the sentencing Judge in the present case was required to determine the issue of Mr Nguyen’s role by reference to the summary of facts, and any inferences justifiably drawn from the summary. From the Crown’s perspective, the brevity of its summary of facts might have risked the Judge declining to draw such inferences as it considered appropriate. But the Crown having taken that risk, it was then for Mr Nguyen to consider whether to “assert” additional facts, which would speak to his role and upon which a more favourable inference might be drawn.
[23] Asserting additional facts does not, strictly, involve following the procedure set out in rule 5A.1, as it does not involve identification of facts contained in the summary which are disputed. However, Mr Nguyen could have invited the Crown to include additional undisputed facts in an amended summary. And in any event, the
7 R v Kinghorn [2014] NZCA 168 at [19]–[22] and [31], citing Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 (HL) at 169–170.
8 Zagros v R [2023] NZCA 334 at [28].
9 At [28].
10 At [28].
“procedure contemplated by s 24(2)” extends beyond the proof of facts by means of the prosecutor’s summary, and “should be followed”. Thus, if the Crown had declined to include additional facts, whether on the basis they were disputed, or otherwise, I consider it was for Mr Nguyen to assert any additional facts from which the inferences he preferred might be drawn, and then in the event the Crown disputed those facts, to activate the s 24(2) procedure.
[24] In Pokai v R, the Court of Appeal declined to consider evidential material that did not form part of the summary of facts upon which the appellant had been sentenced.11 The Court referred to its decisions in R v Apostolakis and R v Whiunui, which “made it clear … that, in cases where counsel have reached agreement regarding the factual summary on which a guilty plea is to be entered, sentencing must proceed on the basis of that summary”.12 I have suggested that s 24(2) provides an additional statutory mechanism by which material beyond the prosecution’s summary of facts might be advanced. I acknowledge that in some cases the sentencing judge may take the view that the additional disputed facts alleged might be of little significance, so that a full disputed fact hearing then becomes unnecessary. Indeed, this was the case in Zagros, where the agreed summary of facts addressed the defendant’s role at some length. But this only confirms that the mechanism must be observed. Spontaneous references in the course of sentencing hearings to unaccepted evidential material or defendants’ instructions, should be put to one side.
[25] The important question in this case, therefore, is whether the summary of facts provided a sufficient basis upon which the Judge might infer that Mr Nguyen played a “significant” role — a “very meaningful” and “critical” role — in the cannabis dealing charges he had admitted. I consider that it did.
[26] The summary stated that it was Mr Nguyen who sold cannabis in various amounts to the people who drove to Auckland to purchase it. It stated that the amount sold in the course of 10 of the 11 sales during 19 May to 21 July 2023 was 151 pounds (68.48 kilograms). And that the 11 sales netted around $514,200. It stated that on
11 Pokai v R [2014] NZCA 356.
12 At [30], citing R v Apostolakis (1997) 14 CRNZ 492 (CA) and R v Whiunui CA212/05, 9 November 2005 at [14].
24 July 2023, when police attended Mr Nguyen’s home three days after their Hawkes Bay investigation had concluded with the arrest of group members, they found him in possession of 40 pounds of cannabis and $120,000.
[27] Clearly, sales of the quantity described required one or more substantial cultivating and distribution networks to sustain it. There was no proper basis upon which it might be inferred that Mr Nguyen directed or managed a cultivating and distribution network, or was directly responsible for arranging his own wholesale supply, or onwards sales. However, Mr Nguyen’s stated role within the network(s), as the person who sold the cannabis, can only have meant that he had physical custody of the cannabis sold, on each occasion of sale, for the period necessary to deliver it to his customers. And the fact of the large quantities of cannabis and cash found at his home safely justify the inference that his role permitted custody of the cannabis sold and the very substantial cash proceeds of each sale for at least a period of some days prior to and following each transaction. In this regard, I consider the Judge’s use of the word “autonomy” for the purpose of characterising the inferred nature of Mr Nguyen’s role to be apt.
[28] These matters inevitably establish that Mr Nguyen had a “significant” role in the offending for which he was sentenced. I use this term in the same sense I understand the sentencing Judge to have done: as a reference to the Supreme Court’s description of role profiles set out in Zhang v R and modified by Berkland v R.13 Mr Nguyen exercised a fulsome operational function, apparently alone. He was plainly fully aware of the scale of the operation. And as Mr Wimsett conceded, Mr Nguyen expected financial gain, albeit that, for lack of additional agreed facts, the extent of that expected gain cannot be assessed for compatibility with Mr Nguyen’s role and the risk he assumed. In short, Mr Nguyen’s role was, with respect, correctly described as “very meaningful” and “critical”.
[29] On this basis, my view is that the Judge’s selected starting point of four and a half years’ imprisonment was generous. Given the scale of Mr Nguyen’s offending and his significant role in committing it, transacting more than 68 kilograms of
13 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 and see Berkland v R [2022] NZSC 143, [2022]
1 NZLR 509 at [71] for updated role profile table.
cannabis at a price of $514,200 over a nine-week period, and having possession for sale of a further 18 kilograms, it fell well within category 3 of Terewi. The Sentencing Act principle set out in s 8(d), that cases near to the most serious of cases for which the maximum penalty is prescribed qualify for the imposition of penalties near to that maximum unless the offender’s circumstances make that inappropriate, applied. At least, it applied insofar as the maximum penalty for Mr Nguyen’s two offences of cannabis dealing might be regarded as that prescribed for one such offence.
[30] I consider Mr Nguyen’s offending should have attracted a starting point of at least five years’ imprisonment.
[31] In this regard, I distinguish the case of Dinh v R, upon which Mr Nguyen relied.14 There, Woolford J applied starting points at the very bottom of category 3 — starting points of four years’ imprisonment — for four appellants who had been charged following police detection of an extremely large-scale cannabis cultivating operation at a remote location in Northland.15 The summary of facts addressed itself to the appellants’ roles only by stating that they were “located inside the dwelling house upon Police arrival and were responsible for cultivating and tending to the cannabis growing operation at the address”.16 Justice Woolford observed that the appellants “could be seen as playing a substantial, but not necessarily a leading role”.17
[32] I infer from the balance of Woolford J’s remarks that in fact it was found the appellants occupied a “lesser” role, in terms of the updated risk profile table set out in Berkland. His Honour pointed out the summary of facts did not suggest the appellants were involved in establishing the site or cultivating activity, the transport or sale of the dried cannabis, or any activity to launder the sale proceeds. Nor was there evidence of any specific monetary gain. As likely the people described by a police informer as “farmers” at the site, they appeared to perform a limited function under direction, with full awareness of the physical scale but none of the commercial scale of the operation, and no autonomy as to how the cultivated cannabis might be stored, or its proceeds dealt with. And in any event, had the appellants in Dinh occupied a greater role than
14 Dinh v R [2023] NZHC 3667.
15 At [46].
16 At [4].
17 At [41].
that of the “lesser” Berkland role profile, a starting point as low as four years’ imprisonment, given the extraordinary scale of the operation, could not in my view have been justified.
Mr Nguyen’s circumstances
[33] Mr Nguyen is 23 years old. He had no previous convictions. He told the Provision of Advice to Courts (PAC) pre-sentence report writer that he engaged in the offending due to financial commitments.
[34] While he was on bail pending resolution of the charges brought against him or trial, Mr Nguyen and his long-term partner conceived their first child. The child was born around four weeks prior to Mr Nguyen’s sentencing on 14 August 2024.
The Judge’s assessment of Mr Nguyen’s circumstances
[35] The sentencing Judge declined a submission made for Mr Nguyen that he should receive a sentencing discount of 15 per cent for a combination of previous good character, youth and rehabilitative potential. In connection with character, the Judge referred to the scale of the offending, and noted that it had not been shown Mr Nguyen had done a lot of good things in the community. In connection with Mr Nguyen’s youth, the Judge observed that the rationale for youth discounts stated in Churchward v R lies in the impulsivity of young people.18 Yet Mr Nguyen’s conduct was sustained over at least two months. And in connection with rehabilitation, the Judge found there to be insufficient evidence of rehabilitative prospects to justify discrete discount.
[36] On the other hand, the Judge applied a 25 per cent discount for Mr Nguyen’s guilty pleas, and discounts of three months for time spent on restrictive bail conditions and three months to acknowledge the impact of Mr Nguyen’s absence, while in prison, on his newborn child.
[37] Rounding up those discounts, the Judge came to an overall reduction of 20 months (37 per cent) from his 54-month starting point, which the Judge described
18 Churchward v R [2011] NZCA 531.
as approximately 40 per cent. The Judge observed that any greater discount “would bring us to a point where we lose sight of the actual actions, your actual criminal actions, and that would not be appropriate”.
Were the discounts for personal circumstances too low?
Previous good character, youth and rehabilitative prospects
[38] For Mr Nguyen, Mr Wimsett submitted that he should have received a 15 per cent discount for the combination of elements of previous good character, youth and rehabilitative prospects which, in his particular circumstances, could be called upon. Mr Wimsett submitted that the Judge was incorrect to address, and to dismiss, each element separately. Mr Nguyen had no previous convictions, which was not entirely surprising given his relative youth, but went some distance to establishing good character despite his lack of observed good deeds. And his rehabilitative potential as a young person was inherent and did not require particular evidence.
[39] I accept that the relatively better rehabilitative potential of young people is endemic and does not require evidence. It exists in Mr Nguyen’s case, and should have been recognised. As for the other characteristics of young people which mitigate the culpability of their offending, I agree with the Judge that their impulsivity and susceptibility to peer pressure when accompanied by other adolescents will not have played a role throughout Mr Nguyen’s sustained offending, but their naivety and vulnerability to poor decision-making appears in this case to have done so. Similarly, Mr Nguyen’s lack of previous convictions, even at the modest age of 23, spoke to some level of good character, albeit that was undermined by the nine-week period of his large-scale cannabis dealing.
[40] On balance, while a discount as modest as five per cent might have been justifiable, in the absence of any discrete discount expressly being permitted for these factors, I state my view that a 10 per cent discount should have been applied.
Responsibilities to infant
[41] Mr Wimsett submitted that the three-month discount that the Judge allowed gave insufficient recognition to the interests of Mr Nguyen’s child, and did not comply with guidance from the senior appellate courts, including in particular the Supreme Court in Philip v R.19
[42] I disagree. In Philip v R, the Court confirmed that the impact of imprisonment on the offender’s children is a relevant factor, reflecting s 8(h) and (i) of the Sentencing Act, and the courts’ obligation under the United Nations Convention on the Rights of the Child to treat the best interests of the child as a primary consideration.20 However, in applying those principles, the Court found only that a discrete discount was available for that factor, observing that the appellant had a “secure attachment” with his child, and that their relationship was linked to his rehabilitative prospects. It was not necessary for the Court to approve the sentencing Judge’s discount of 10 per cent attributed to this factor, and it did not do so, finding instead that the overall discount of 60 per cent, encompassing matters such as the effects of addiction, time spent on electronically monitored bail, and guilty plea, was appropriate.
[43] The other cases cited for Mr Nguyen do not support his position. In Sweeney v R, the Court of Appeal found a 10 per cent discount appropriate to recognise the appellant’s responsibilities as the sole surviving parent and primary caregiver of his six year old boy and four year old girl.21 In Ah Tong v R, that Court found a 10 per cent discount to be appropriate to recognise the appellant’s separation from his 11 year old daughter, in circumstances where her mother was already serving a lengthy prison sentence and she was now in the care of the appellant’s partner, whose mental health had deteriorated upon assuming caregiving responsibilities.22 And in C (CA153/2023) v New Zealand Police, a 15 per cent discount was applied on appeal in favour of a woman whose neurodiverse 11 year old son was the subject of psychological reporting to the effect that she represented his primary and most
19 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571.
20 At [50]–[52].
21 Sweeney v R [2023] NZCA 417 at [27].
22 Ah Tong v R [2024] NZCA 144 at [15].
significant attachment, and that, as confirmed by Oranga Tamariki, her absence would have a very severe impact on him.23
[44] These cases turn on their own facts. They do not support the application of significant sentencing discounts to offenders without dependent, or particularly vulnerable, children, or to offenders who have not established such attachment to their child that their rehabilitative prospects might be affected by separation.
[45] In my view, the three-month, approximately five and a half per cent, discount that was applied in this case was appropriate.
Is Mr Nguyen’s sentence manifestly excessive?
[46] In light of the above findings, Mr Nguyen’s sentence is not manifestly excessive. A starting point of no less than five years’ imprisonment should have been selected. While a 10 per cent discount for Mr Nguyen’s youth (including rehabilitative prospects) and lack of previous convictions should have been applied, the generous starting point means that the end point reached was within the available range of appropriate sentences.
Result
[47]Accordingly, Mr Nguyen’s appeal is dismissed.
Johnstone J
23 C (CA153/2023) v New Zealand Police [2024] NZCA 136 at [59].
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