Nguyen v Police
[2024] NZHC 1162
•10 May 2024
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 months’ imprisonment, which placed the offending in the moderately serious category.
[8] The Judge then noted the features which might reduce gravity, namely the initial frank admission followed by an early guilty plea, remorse, and Ms Nguyen’s age at the time, 23. The Judge also had a psychological report before him which indicated Ms Nguyen suffered from post-traumatic stress disorder (PTSD) and had a deficit hyperactivity syndrome. Against that, the Judge noted that Ms Nguyen was obviously capable of achieving significant things in her life in terms of her personal potential and talents. He noted she intended to train and undertake a career as a real estate agent. Also, balanced against the positive factors in Ms Nguyen’s favour was her prior drug dealing and the fact she had previously been granted a discharge without conviction. Overall the Judge considered the offending to remain in the moderately serious range.
[9] The Judge noted that there were two main consequences of conviction relied on by Ms Nguyen. The first was the potential to affect her future employment as a real estate agent and the second, her immigration status. On that later issue the Judge had before him an affidavit from Simon Laurent, an experienced immigration consultant and lawyer.
[10] The Judge noted that a conviction might be a barrier to Ms Nguyen’s proposed career path as a real estate agent. As to Ms Nguyen’s immigration status the Judge
2 R v Terewi [1999] 3 NZLR 62 (CA).
accepted, on the basis of Mr Laurent’s evidence, that if convicted Ms Nguyen would require a character waiver to obtain a resident’s visa. In Mr Laurent’s opinion it was more likely than not that would be declined. The Judge accepted that would be a significant consequence. However, he considered the potential liability for deportation to be outside the ambit of the application because the immigration officials would take whatever steps they saw fit based on the offending Ms Nguyen had pleaded guilty to, whether she was convicted or not. The Judge also accepted there may be general consequences for Ms Nguyen and her family relationships if convicted.
[11] After considering the authorities provided by counsel the Judge moved to the third stage. While he accepted that the impact of a conviction upon Ms Nguyen would be clear and significant, he considered the gravity of the offending was such that he would be compelled to commence sentencing somewhere in the vicinity of 28 months’ imprisonment.
[12] Judge Sharp concluded that the gravity was “not wholly outweighed by the actual and potential consequences”. For those reasons he declined Ms Nguyen’s application for discharge without conviction.
Appeal
[13] In support of the appeal Mr Newell submitted the Judge’s starting point was too high and he erred in concluding the gravity of the offending was to be assessed as moderately serious even after taking account of Ms Nguyen’s personal mitigating factors.
[14] While accepting the previous discharge without conviction was relevant Mr Newell submitted it should be seen in light of her age at the time (21 years old) and in the context of her suffering from emotional difficulties and depression as set out in the reports before the Judge. In his submission the Judge ought to have placed more weight on Ms Nguyen’s personal medical and mental issues. Mr Newell also initially submitted the Judge was also wrong to diminish the credit for youth. He submitted that, taking account of Ms Nguyen’s personal factors together with her remorse and other positive features including the early guilty plea, the appropriate gravity assessment of the offending was at a low level.
[15] Mr Newell submitted that error affected the Judge’s proportionality assessment. By overstating the seriousness of the offending, the Judge was wrong to conclude the gravity was not wholly outweighed by the actual and potential consequences, particularly to Ms Nguyen’s immigration status. In the circumstances Mr Newell submitted a conviction was out of all proportion to the gravity of the offending.
Principles
[16] An appeal against refusal to discharge without conviction is an appeal against both conviction and sentence.3 The appeal proceeds by way of rehearing. It is for this Court to make its own assessment whether the criteria for discharge without conviction are met.4 On a conviction appeal the issue is whether a miscarriage of justice has occurred. In the context of an appeal of this nature a miscarriage of justice means a “material error” or that the Judge “erred in applying the principles” applicable to an application for discharge without conviction.5
Analysis
[17] I note that although Judge Sharp correctly referred initially to the test of whether the consequences were out of all proportion to the gravity of the offending, later, when considering the balancing test the Judge concluded the gravity was not “wholly outweighed by the actual and potential consequences”. It may be there is little difference between the two phrases, but it may have been preferable if the Judge had focused on the statutory wording, namely, whether the consequences of conviction would be “out of all proportion”. However, ultimately nothing turns on that as the Court must make its own assessment whether a miscarriage has occurred.
[18] As noted, the focus of Mr Newell’s submission was on the Judge’s characterisation of the offending as moderately serious.
3 Jackson v R [2016] NZCA 627.
4 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.
5 Jackson v R [2016] NZCA 327; Prasad v R [2018] NZCA 537 at [11].
[19] In Delaney v Police Miller J held that an assessment of the gravity of the offence included:6
… not only the offence itself but also anything that may affect the Court’s subsequent assessment of overall culpability. That includes guilty pleas, expressions of remorse and the Court’s assessment of how likely it is that the offender will re-offend, the victim's perspective, and any consequence already suffered by way of reparation, community work, or publicity.
[20] The starting point is the offending itself. Mr Newell referred to a number of cases as comparators for assessing the starting point for the sentence of Ms Nguyen:
Cole v R; R v Rauhihi; Habib v Police; Kennedy v Police; and Whaanga v R.7
[21] I consider those cases to be of limited assistance. Cole involved less than half the quantity of cannabis found in Ms Nguyen’s property and in that case the Court accepted that some of the cannabis was used to self-medicate. In Habib, just over 300 grams was packaged for sale. It was found with $3,000 in cash. On appeal the Court took a starting point of two years. In Kennedy the same Judge on appeal noted that the starting point of two years was well within range where quantities of cannabis head were found and observed there was “clearly room to have assessed the starting point as slightly higher within Terewi band 2 or, possibly lower”, emphasising the discretionary nature of the starting point. In Whaanga, which I accept involved a greater quantity of drugs, the sentencing Judge had adopted a starting point of two and a half years.
[22] In the present case, the starting point proposed by Judge Sharp of 28 to 30 months is, in my judgment, consistent with those authorities and was certainly open to him. Ms Nguyen’s offending falls squarely within band 2 of Terewi,8 and a starting sentence in the region of two years, four months to two and a half years was within range.
6 Delaney v Police HC Wellington CRI-2005-485-22, 22 April 2005 at [29].
7 Cole v R [2014] NZCA 238; R v Rauhihi HC Palmerston North CRI-2008-031-1438, 1 May 2009; Habib v Police [2018] NZHC 1224; Kennedy v Police [2017] NZHC 3066; and Whaanga v R [2024] NZCA 29.
8 R v Terewi, above n 2.
[23] Despite Mr Newell’s submission, commercial drug dealing, even of Class C drugs, at the level Ms Nguyen was involved, is properly classed as moderately serious offending.
[24] The issue is, when account is taken of Ms Nguyen’s personal mitigating and aggravating factors whether the initial assessment of moderately serious offending is reduced and if so, by how much.
[25] While Mr Newell relies on the appellant’s mental health issues, I consider limited credit only is available for them. Mr Newell referred to two medical reports. The first, from a psychologist, noted that Ms Nguyen had experienced significant emotional dysregulation leading to depression (before she moved to New Zealand). The second, by a psychiatrist, diagnosed her as having PTSD on the basis of her self- reported concerns about ADHD. The diagnosis of PTSD seems to be based on Ms Nguyen’s self-reporting that her parents had an aggressive destructive relationship. She had witnessed her father assaulting her mother and both had used corporal punishment to discipline her. The effect of that diagnosis of ADHD and depression must also be considered in context. Ms Nguyen was able to come to New Zealand in 2015 for schooling when 16 years old. She is well able to operate in society. She has carried out freelance graphic design work. She was able to plan and maintain her drug dealing. Ms Nguyen knew what she was doing, and how much money she was making. Further, Ms Nguyen was able to enrol in a training course and intended to follow a career as a real estate agent.
[26] In the particular circumstances of this case I do not consider Ms Nguyen’s mental health and related conditions can be seen as mitigating the offending or diminishing her moral culpability in any significant way.9
[27] Nor do I consider Ms Nguyen’s age to be a particularly mitigating factor in this case. At the time of the current offending she was 23 years old. The offending was not committed impulsively or thoughtlessly by a young person without an understanding or appreciation of the consequences of her actions. This was a carefully planned drug dealing operation for profit.
9 Orchard v R [2019] NZCA 529.
[28] Further, balanced against the mitigating factors that Mr Newell argued for including her age is the fact that Ms Nguyen was previously discharged for very similar offending. As the Court of Appeal made clear in MacDonald v R the fact Ms Nguyen has had the benefit of a discharge without conviction previously weighs against the grant of a second discharge.10
[29] That is particularly so where the discharge is sought for the same type of offending. As Roper J put it in Police v McCabe:11
… the situation is quite different where an application is made for discharge where there has been a previous discharge for the same type of offending. In that case it is not the fact that the accused has previously offended in the same way that is important but that he has been previously discharged for that offending. The distinction may be subtle but I regard it as real.
[30] The particularly relevant considerations in Ms Nguyen’s favour are her frank admission, very early guilty plea and remorse. I also note that Ms Nguyen made donations to charities.
[31] Mr Newell referred to the cases of R v Rakich; Weerasinghe v Police; and Christison v Police where the Court had accepted the personal circumstances of the defendant had enabled the Court to grant a discharge, even though drug dealing was involved.12 In Rakich the defendant had sold at least 200 pills and conspired to sell thousands more. While the assessment of the offending was moderately serious, it was reduced to a low level for his remorse, guilty pleas, and the fact he was 20 years old and of previous good character. In Weerasinghe the defendant had been found in possession of 29 grams of cannabis, a small amount of cash and 74 cannabis seeds. He had been delivering cannabis to 12 people over a three month period. On appeal the Court accepted that it was a low level retail dealing and only to a limited extent. Mitigating features were age, a lack of prior convictions, a guilty plea and efforts at rehabilitation. In Christison v Police the defendant admitted to selling small amounts of cannabis to friends. For the better part of a year he did not turn a profit from the offending. The Court accepted that was low level commercial dealing.
10 MacDonald v R [2019] NZCA 91. See also Swami v Police [2012] NZHC 2725 at [25].
11 Police v McCabe [1985] 1 NZLR 361.
12 R v Rakich [2014] NZHC 3287; Weerasinghe v Police [2019] NZHC 139; and Christison v Police
HC Auckland CRI-2009-404-77, 2 June 2009.
[32] To the extent Ms Nguyen’s personal factors can properly be regarded as mitigating, when considered together with the aggravating factor that this was a second offence of its kind and involved commercial drug dealing I consider that the gravity of offending is properly classed as in the moderate to serious range.
Consequences
[33] Mr Newell confirmed that no real objection was taken to the Judge’s assessment of consequences. The Judge had considered they were real. He accepted a conviction would affect Ms Nguyen’s ability to follow her intended career as a real estate agent. The Judge also accepted there would be real impact on her in terms of applying for a resident’s visa.
[34] In Mr Laurent’s updating affidavit he suggested that in light of the development that Ms Nguyen is now pregnant to a New Zealand citizen, (due mid-June) the likelihood of her obtaining a character waiver to support her residence application is improved. She now has a 50 per cent chance, even if convicted, owing to the prospect of having a child who would be a New Zealand citizen. To that extent the consequences of a conviction may be somewhat lessened, although as Mr Newell submitted, even with a 50 per cent chance there remains a real and appreciable risk that she will not achieve a character waiver for her residence application.
[35] As the Judge noted, Ms Nguyen may become liable for deportation irrespective of whether she is convicted or discharged, but in Mr Laurent’s view it was more likely than not her residence application would be determined before she was served with a deportation liability notice given the priorities afforded to more serious cases.
[36] While there will be an impact on Ms Nguyen’s future career, given that Ms Nguyen is currently pregnant, her future career may be on hold for a short period in any event. Further, as the Court of Appeal confirmed in R v Taulapapa a conviction will inevitably affect an offender’s career but the consequences must normally yield to the employer’s and regulatory body’s right to know.13
13 R v Taulapapa [2018] NZCA 414 at [42].
[37] In summary, if anything, the consequences of conviction are less than as assessed by Judge Sharp. While the consequences are real, as the Supreme Court recently noted in Bolea v R,14 even where there is a real risk of actual deportation that does not, of itself, mean a discharge will be granted.
[38] Further, in that same decision the Court accepted that it was open to the Court to determine that the consequences even of deportation may not be out of all proportion to moderately serious offending.15 I assess the consequences of conviction, particularly on Ms Nguyen’s residence and immigration status as moderate.
Proportionality
[39] Section 107 directs the Court it must not discharge an offender unless the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offence.
[40] Out of proportion means a significant disproportion of consequence in relation to the gravity of the offence. It is not enough for the consequences of a conviction to outweigh the gravity of the offending.16 More is required. As the Court of Appeal observed in R v Smyth:17
It is not enough that the consequences of a conviction outweigh the gravity of the offending. Significantly more is required. The consequences must be out of all proportion to the gravity of the offending before the court has jurisdiction to grant a discharge without conviction.
Result
[41] The gravity of the offending taking account of Ms Nguyen’s circumstances is moderate to serious. There will be handicaps to Ms Nguyen pursuing a career in real estate (if she still intends that) and there remains a real risk to Ms Nguyen’s immigration status if convicted. I assess the consequences of conviction as moderate. The consequences of conviction do not outweigh the gravity of the offending, and fall well short of being out of all proportion.
14 Bolea v R [2024] NZSC 46 at [53].
15 At [51] referring to Truong v R [2023] NZCA 97.
16 Huata v R [2013] NZCA 470; and Tahiri v R [2013] NZCA 73 at [27].
17 R v Smyth [2017] NZCA 530 at [12].
[42]For the above reasons the appeal is dismissed. The conviction stands.
[43] Ms Nguyen should now be sentenced in the District Court as soon as possible given the delay to date.
Venning J
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