LE PHONG NGUYEN AND THE KING - [2024] NZHC 2974

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NZHC 2974
Decision Date: 14 October 2024

CaseChat Overview and Summary

Le Phong Nguyen appeals against his sentence of two years and 10 months' imprisonment, arguing that the starting point was too high, a discount for his good character, youth, and rehabilitative prospects was not applied, and a discount for his responsibility towards his infant child was insufficient. The appeal was heard by Johnstone J, who concluded that the starting point of four and a half years was generous, and the sentence was not manifestly excessive. The court found that while a 10% discount for Nguyen's youth and lack of previous convictions should have been applied, the sentence remained within the appropriate range. Consequently, the appeal was dismissed.

The court assessed the starting point for sentencing, considering Nguyen's role in the cannabis dealing operation. The court found that Nguyen's involvement was significant, playing a critical role in the operation, justifying a starting point of at least five years' imprisonment. The court also examined the discounts for personal circumstances. It determined that a 10% discount should have been applied for Nguyen's youth and rehabilitative prospects, but the overall sentence was not excessive. Additionally, the court found that the three-month discount for Nguyen's responsibility towards his infant child was appropriate.

Orders