Nguyen v Police - [2024] NZHC 1162

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-000071

[2024] NZHC 1162

BETWEEN
PHUONG NGUYEN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 9 May 2024

Appearances:

G Newell for Appellant

R van Boheemen for Respondent

Judgment:

10 May 2024

JUDGMENT OF VENNING J

This judgment was delivered by me on 10 May 2023 at 11.45 am, pursuant to Rule 11.5.

Registrar/Deputy Registrar

Date……………

Solicitors: Meredith Connell, Auckland Counsel: G Newell, Auckland

NGUYEN v NEW ZEALAND POLICE [2024] NZHC 1162 [10 May 2024]

Introduction

[1] Phuong Nguyen pleaded guilty to one charge of possession of cannabis for sale. She applied to be discharged without conviction. Judge D J Sharp declined her application on 20 January 2023.1 Ms Nguyen appeals against the refusal to discharge her without conviction.

[2] For reasons which it is unnecessary to traverse in this judgment this appeal has taken far longer than it should to be heard. Ms Nguyen is yet to be sentenced in the District Court.

Background

[3] I take the background from the summary of facts Ms Nguyen pleaded guilty to. On the morning of 9 May 2022 the Police completed a door knock at Ms Nguyen’s address at an apartment in Auckland City.

[4] Ms Nguyen answered the door and came out of the apartment in such a way that it was clear to the Police that she did not want them to enter. As the door was opened an overpowering smell of cannabis enveloped Ms Nguyen and the police officers. The Police invoked search powers under the Search and Surveillance Act 2012 and searched Ms Nguyen’s property. They found 546.2 grams of cannabis:
220.1 grams was located in a large zip lock bag with the remainder separated out into individual zip lock bags.

[5] The cannabis was located in Ms Nguyen’s bedroom where the Police also found electronic scales and $3,580 in cash. Ms Nguyen made a full and frank confession. She stated she had purchased 16 ounces of cannabis from her supplier the day before and had begun dividing it into zip lock bags. She said she usually sold 28 gram bags for between $350 and $360. She also accepted that the cash located in the apartment was the proceeds from cannabis sales.

1 Police v Nguyen [2023] NZDC 938.

District Court decision

[6] Judge Sharp correctly identified the approach to an application for discharge without conviction. He noted the Court must assess the gravity of the offending, the direct and indirect consequences of conviction and then must determine if the consequences of conviction were out of all proportion to the gravity of the offending.

[7] In relation to the gravity of the offending the Judge noted the offending fell within band 2 in R v Terewi,2 which supported a starting point between two to four years’ imprisonment. The Judge considered a starting point for imprisonment in Ms Nguyen’s case would be in the range of 28 to 30…

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.

Keep reading for free

Create a free CaseChat account to read Nguyen v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NZHC 1162
Decision Date: 10 May 2024

CaseChat Overview and Summary

Phuong Nguyen, the appellant, has brought an appeal against the High Court's refusal to discharge her without conviction following her guilty plea to possession of cannabis for sale. The decision to appeal was made after Judge D J Sharp declined Ms Nguyen's application on 20 January 2023. The central legal issue in this case was whether the refusal to grant a discharge without conviction constituted a material error or a miscarriage of justice. The appellant's counsel, G Newell, argued that the Judge had erred in assessing the gravity of the offence and the proportionality of the consequences of conviction. Specifically, it was submitted that the Judge had overemphasised the seriousness of the offence and underestimated the mitigating factors, including Ms Nguyen's age and mental health issues.

In assessing the appeal, the Court first considered the principles governing an appeal against the refusal of a discharge without conviction. This appeal involved a rehearing, requiring the Court to independently determine whether the criteria for such a discharge were met. The Court found that while the Judge had correctly applied the initial test of whether the consequences were out of all proportion to the gravity of the offence, the phrasing used in the conclusion could have been clearer. However, this did not affect the outcome as the Court needed to determine if a miscarriage of justice had occurred. The Court then examined the characterisation of the offence's gravity, considering the starting point for sentencing and the relevant mitigating and aggravating factors. The Court concluded that the starting point proposed by the original Judge was consistent with similar cases and that the gravity of the offence, taking into account the mitigating factors, remained moderate to serious. The consequences of conviction, particularly regarding Ms Nguyen's immigration status and potential career, were assessed as moderate but did not reach the threshold of being out of all proportion to the gravity of the offence.

Ultimately, the Court found that the appeal did not demonstrate a material error or a miscarriage of justice. The gravity of the offence, even with the mitigating factors considered, was not outweighed by the consequences of conviction. Therefore, the appeal was dismissed, and the conviction stands. The Court ordered that Ms Nguyen should be sentenced in the District Court as soon as possible to mitigate any further delays.

Orders