Nguyen v Police
[2023] NZHC 1045
•4 May 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-000059
[2023] NZHC 1045
BETWEEN THANH HUY NGUYEN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 2 May 2023 Appearances:
C S Fredric for Appellant
T C T Riley for Respondent
Judgment:
4 May 2023
JUDGMENT OF VAN BOHEMEN J
[Appeal against sentence]
This judgment was delivered by me on 4 May 2023 at 10:00 am
Registrar/Deputy Registrar
……………………………..
Counsel/Solicitors:
C S Fredric, Auckland Crown Solicitor, Manukau
NGUYEN v NEW ZEALAND POLICE [2023] NZHC 1045 [4 May 2023]
[1] Thanh Huy Nguyen appeals the sentence of one year and nine months’ imprisonment (21 months’ imprisonment) imposed by Judge D J McNaughton in the District Court at Manukau1 after Mr Nguyen pleaded guilty to one charge each for the cultivation of cannabis and possession of cannabis for supply.2
[2]Mr Nguyen appeals on three grounds. He says:
(a)the discount given for his personal mitigating factors, previous good character and time on electronically monitored (EM) bail was insufficient;
(b)a sentence of home imprisonment should have been imposed given there was a suitable address available and Mr Nguyen had been on EM bail for six months without issue; and
(c)the sentencing Judge focused only on deterrence, to the exclusion of sentencings’ other purposes, amounting to an error of law.
[3]The Police oppose the appeal.
[4] Pending the outcome of his appeal, Mr Nguyen was granted EM bail on the same conditions that had applied before sentence.
Facts
[5] Mr Nguyen is a 36-year-old Vietnamese national. He arrived in New Zealand in 2019 on a tourist visa after failing to obtain a working visa. On arrival, he worked as a painter until the COVID-19 pandemic made that work harder to come by. Mr Nguyen then turned to cannabis cultivation. By that time, his tourist visa had expired.
1 Police v Nguyen [2023] NZDC 2279.
2 Misuse of Drugs Act 1975, ss 9(1) and s 6(1)(f). Those offences provide for maximum penalties of seven and eight years imprisonment respectively.
[6] For a considerable period of time, Mr Nguyen and an unknown female associate cultivated cannabis at a residential dwelling in Pukekohe. On 17 June 2022, Police executed a search warrant of the dwelling and found a large cannabis operation. Excluding the toilet and a small area of bedding near the kitchen bench, the entire dwelling had been used for the cultivation operation. Four separate rooms were found to contain approximately 100 healthy mature cannabis plants, most of which were heavily budded and ready for harvest. Another room contained about 34 plants, ranging in size from seedlings to medium sized plants nearing maturity. An incubation box was found to contain a further 16 small seedlings and, in a kitchen cupboard, a large self-sealing plastic bag was found to hold an estimated 100 grams of cannabis head. The power to the house had been diverted at the meters, and in a dangerous state.
[7] The dwelling was set up like other commercial-scale cannabis operations. The bathroom was used for watering, with a water pump and piping leading to the rooms. Large carbon filters were erected in all the rooms where cannabis was growing. A concealed power transformer, which provided power to several houses on the street, was used to divert power to the house, a typical measure used to lower costs and disguise the large amounts of electricity used.
[8] Mr Nguyen was observed driving in the vicinity of the address and was stopped by Police. He was arrested and his vehicle was searched. Police located keys which fitted the padlock which had been used to lock the gates at the property, and a key which fitted the door.
[9] Mr Nguyen was charged with cultivation of cannabis and possession of cannabis for supply. After receiving a sentencing indication from Judge McNaughton,3 Mr Nguyen pleaded guilty to both charges. He was sentenced to 21 months’ imprisonment, which is the sentence he now appeals.
3 Police v Nguyen DC Pukekohe CRI-2022-092-004813, 21 September 2022.
District Court decisions
[10] At his sentencing indication on 21 September 2022, Judge McNaughton noted that Mr Nguyen had been living illegally in New Zealand for three years.4 The Judge also noted the substantial commerciality of the operation which, the Judge considered, would produce an annual revenue of $240,000.5 The Judge considered that any starting point would be at least in the upper range of band two of R v Terewi.6
[11] The Judge noted that there was no evidence that Mr Nguyen was the actual ringleader; his role had been to stay at the house, cultivate the plants, keep them watered and to harvest cannabis from time to time. The Judge accepted that Mr Nguyen was the hands and not the brains of this operation. Accordingly, the Judge adopted a starting point of three years’ imprisonment and said that, if the indication were accepted, he would give a 25 per cent discount for pleading guilty.7
[12] The Judge said any discount for good character would require affidavit evidence but indicated a slight reduction might be given to reflect Mr Nguyen’s lack of English and cultural difficulties. The Judge noted he had dealt with half a dozen Vietnamese operations in the last two or three years and observed that, “at some point deterrence has to come into the equation so all I am really prepared to indicate at this stage is a starting point and a discount for guilty plea”. The Judge said he would not promise an end sentence of home detention, even if it got down to two years or less.8
Sentencing decision
[13] When sentencing Mr Nguyen, Judge McNaughton again noted the substantial commerciality of the operation and that Mr Nguyen had not been the ring leader.9 The Judge noted from the Correction’s pre-sentence report that Mr Nguyen had accepted that what he did was wrong and that he had been financially supporting his family back in Vietnam where he had a wife and two daughters. The Judge also noted that the proposed address for home detention had been assessed as suitable and that
4 At [6].
5 At [7].
6 R v Terewi [1999] 3 NZLR 62 (CA).
7 Police v Nguyen, above n 3, at [8].
8 At [9].
9 Police v Nguyen, above n 1, at [5].
Mr Nguyen had said he had some mental health, sleep disturbance and constant fatigue issues.10
[14] The Judge referred to an affidavit that Mr Nguyen had filed. It explained that he left school at 15 to work as a fisherman following his father’s death, that he came to New Zealand for better economic opportunities, that his family home was extensively damaged in a major flood and that his brother required treatment for throat cancer which his family were paying for privately. It also explained that Mr Nguyen saw cannabis cultivation as an opportunity to provide money for his family and that, in addition to $500 a week, he had free food and accommodation.11
[15] The Judge adopted his indicated starting point of three years’ imprisonment, applied a 25 per cent discount for his guilty pleas and a further 10 per cent discount to reflect Mr Nguyen’s “personal circumstances, family difficulties, financial hardship and [his] motivation to provide for [his] family”. The Judge also applied a further two-month discount for the time spent on EM bail. This resulted in the end sentence being reduced to 21 months’ (one year and nine months’) imprisonment.12
[16] After making these deductions, the Judge considered what end sentence he should impose. The Judge stated:
[10] That is a short sentence of imprisonment within range for home detention. You have an available address, and you would be a suitable candidate. But as I said at the sentencing indication hearing, there is this issue of deterrence. Having sentenced a number of people in these operations, myself, and read the sentencing notes of other judges dealing with other members of the Vietnamese community committing the same offences; it is obvious to me now that home detention is simply no deterrent to members of your community getting involved in these commercial growing operations. The Vietnamese community in Auckland is not that large and I am sure by now it is common knowledge amongst the Vietnamese community what sentences the District Court is imposing for this type of offending. Home detention is becoming the standard sentence for those involved as workers in the operation as opposed to those who set them up. So if the Courts are going to continue to impose home detention for this, there is really no risk of imprisonment for those who choose to do it for financial reasons; and in the meantime these operations continue on a bigger and bigger scale. At some point the Courts have to say “Enough” and start imposing deterrent sentences and, with some reluctance and some sympathy for your personal
10 At [6].
11 At [7].
12 At [9].
circumstances, I am afraid that point is now. I am not prepared to substitute home detention here and I won’t be prepared to substitute home detention from now on for offending at this level.
[17] The Judge then imposed an end sentence of 21 months’ imprisonment on both charges.
Approach on appeal
[18] An appeal against a sentence is an appeal against a discretion. Section 250(2) of the Criminal Procedure Act 2011 (CPA) provides that the Court must allow an appeal against sentence if it is satisfied that, for any reason, there was an error in the sentence and that a different sentence should be imposed. In any other case, it must dismiss the appeal.13 Section 251 of the CPA provides that, if a Court allows an appeal against sentence, it must either set it aside and impose another sentence as appropriate, vary the sentence or any part of it, or remit the sentence back to the Court which originally imposed it.
[19] It is well-established that an appeal against sentence will be successful only if the appellant can point to an error, either intrinsic to the Judge’s reasoning, or as a result of materials submitted on the appeal, that vitiates the lower Court’s sentencing discretion.14 Unless there is a material error in the end sentence, the Court will not intervene.15 There will be a material error if the end sentence is manifestly excessive or wrong in principle.16 In general, the focus is on whether the end sentence is within the available range, rather than the process by which the sentence was reached.17 Accordingly, mere tinkering is not permitted.18 However, there may be cases where there has been an error that requires correction, even if the sentence imposed is within range.19
13 Criminal Procedure Act 2011, s 250(3).
14 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [30]; Tamihana v R [2015] NZCA 169 at [14] and [29]–[30].
15 Te Aho v R [2013] NZCA 47 at [30]; Tamihana v R, above n 14, at [14].
16 Tamihana v R, above n 14, at [14].
17 Tutakangahau v R , above n 14, at [36]; Tamihana v R , above n 14, at [14].
18 Maihi v R [2013] NZCA 69 at [21].
19 Tutakangahau v R, above n 14, at [36].
Relevant provisions of the Sentencing Act 2002
[20]Sections 7 and 8 set out the purposes and principles of sentencing.
[21]The purposes of sentencing in s 7(1) include:
(a)to hold the offender accountable for harm done to the victim and the community by the offending; or
(b)to promote in the offender a sense of responsibility for, and an acknowledgment of, that harm; or
(c)to provide for the interests of the victim of the offence; or
…
(e)to denounce the conduct in which the offender was involved; or
(f)to deter the offender or other persons from committing the same or a similar offence; or
(g)to protect the community from the offender; or
…
[22]Section 8 provides that in sentencing an offender the court—
(a)must take into account the gravity of the offending in the particular case, including the degree of culpability of the offender; and
(b)must take into account the seriousness of the type of offence in comparison with other types of offences, as indicated by the maximum penalties prescribed for the offences; and
…
(e) must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances; and
…
(g)must impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders set out in section 10A; and
(h)must take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe; and
(i)must take into account the offender’s personal, family, whanau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose; and
…
[23] Section 9(3A) provides that, in taking account of the time an offender has spent on bail with an EM condition, the Court must consider the time spent on bail with the EM condition, the relative restrictiveness of the EM condition and the defendant’s compliance with that condition.
[24] Section 15A(1) provides that a court may impose a sentence of home detention only if:
(a)the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences; and
(b)the court would otherwise sentence the offender to a short-term sentence of imprisonment.
[25] Section 16(1) provides that, when considering the imposition of a sentence of imprisonment the Court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.
[26] Section 16(2) requires that a sentence of imprisonment must not be imposed unless the Court is satisfied that:
(a)a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f) or (g); and
(b)those purposes cannot be achieved by a sentence other than imprisonment; and
(c)no other sentence would be consistent with the application of the principles in section 8 to the particular case.
Submissions for Mr Nguyen
[27] Mr Fredric, counsel for Mr Nguyen, submits that the 10 per cent discount given by the District Court Judge for Mr Nguyen’s personal circumstances was insufficient
and that a discount in the order of 20 per cent would have been appropriate. He says that, while Mr Nguyen’s offending was serious, that seriousness was properly reflected in the Judge’s starting point. Mr Nguyen was not a hardened criminal and was driven to offend out of necessity to provide financially for his wife and two daughters in Vietnam. Nor was he driven by greed, as was reflected in the fact he was paid $500 a week. In support of his submission that a greater discount should have been given, Mr Fredric refers to cases involving similar cannabis cultivation offending by Vietnamese nationals where discounts of 20 per cent20 and nearly 18 per cent21 were given for personal mitigating factors, which included previous good character based solely or principally on an absence of convictions.
[28] Mr Fredric also submits that a discount of two months for the nearly six months Mr Nguyen spent on EM bail was inadequate, given his time on EM bail and given that the conditions of his bail were very restrictive. Mr Fredric says that for much of the time Mr Nguyen was unable to secure absences to go to the supermarket for food and had to rely on other occupants to purchase food on his behalf.
[29] Mr Fredric acknowledges that the above two points are of less significance than Mr Nguyen’s appeal against the Judge’s decision to impose a sentence of imprisonment when a sentence of home detention was clearly available.
[30] Mr Fredric submits that the Judge’s decision failed to take into account s 16 of the Sentencing Act and failed to take into account the directions of the Court of Appeal about the deterrent effect of home detention. He submits that the Judge should have imposed a sentence of home detention rather than imprisonment given the availability of a suitable address and that Mr Nguyen had already spent six months on EM bail “without issue”. Mr Fredric says there was nothing in Mr Nguyen’s offending or in his personal circumstances that warranted Mr Nguyen receiving a sentence different from others who were sentenced to home detention for similar levels of offending in similar circumstances.
20 R v Dinh [2021] NZDC 10539 and Police v Pham [2022] NZDC 10199. In both cases, the relevant defendants received a 20 per cent discount for personal mitigating factors, including previous good character.
21 R v Nguyen [2022] NZDC 5832. In that case, the defendant received a discount of nearly 18 per cent for personal mitigating factors, which included the defendant’s previous good character and his time spent in custody as a non-English speaker.
[31] In a separate but related submission, Mr Fredric says that, when deciding to sentence Mr Nguyen to imprisonment rather than home detention, the Judge focused only on deterrence and failed to have regard to the other purposes of sentencing in s 7 of the Sentencing Act and the principles of sentencing in s 8, in particular the requirement to impose the least restrictive outcome that is appropriate in the circumstances.
[32] Mr Fredric refers to William Young P’s dissent in R v Vhavha, where the President of the Court of Appeal observed that there is nothing in the Sentencing Act to suggest a presumption for or against commuting a short-term sentence of imprisonment, either generally or in respect of particular types of offences, and that what is called for is an exercise of discretion giving effect to the purposes and principles set out in ss 7 and 8 of the Act.22 Mr Fredric notes that the Court of Appeal later endorsed William Young P’s view in Osman v R and Manikpersadh v R.23
[33] Mr Fredric submits that these decisions indicate that the Court should not single out particular classes of crimes, such as cannabis cultivation by persons of Vietnamese origin, as in need of general deterrence such that home detention should not be imposed. Mr Fredric says the District Court Judge’s decision is already being advanced in support of Police’s opposition to home detention for people of Vietnamese origin who are being sentenced for cannabis cultivation. He says that it would be anomalous if an intensively punitive focus on deterrence were adopted in relation to cannabis, when the Courts have started to take a more lenient approach to methamphetamine offending following Zhang v R.24
[34] For these reasons, Mr Fredric submits that Mr Nguyen’s sentence of imprisonment should be quashed and replaced by a sentence of home detention. He also submits that such a sentence should take into account the six weeks Mr Nguyen spent in custody following arrest and the nine months spent on EM bail pending and post sentence.
22 R v Vhavha [2009] NZCA 588 at [29] and [43]-[45] per William Young P.
23 Osman v R [2010] NZCA 199 at [20]-[21] and Manikpersadh v R [2011] NZCA 452 at [14].
24 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
Submissions for the Police
[35] Mr Riley, counsel for the Police, refers to the Court of Appeal’s decision in Parkin v R, where the Court confirmed the factual matters that usually assist in assessing the extent of any discount for previous good character as being: the length of period for which good character has been exhibited; whether the evidence of good character consists of the absence of convictions or also includes positive contributions to society; and the need for any discount to be proportionate to the overall sentence.25
[36] Mr Riley submits that, given that the only evidence of Mr Nguyen’s good character is the lack of previous convictions and an intention to provide for his family, the Judge’s 10 per cent discount could be seen as generous. However, he accepts it was appropriate because Mr Nguyen’s offending had been driven by financial hardship.
[37] Mr Riley says that the Judge’s discount of two months for Mr Nguyen’s six months on EM bail was sufficient, bearing in mind the Court of Appeal’s observation in Paora v R that discounts of between 30 per cent and 50 per cent are often applied for time spent on EM bail.26 Mr Riley also says that, contrary to Mr Fredric’s submissions, Mr Nguyen’s bail conditions permitted him to leave his address for prior- approved appointments for a range of reasons.
[38] On the principal point in contention, whether Mr Nguyen should have been sentenced to home detention, Mr Riley submits that the District Court Judge made a considered and principled choice between imprisonment and home detention in accordance with the Court of Appeal’s decision in Fairbrother v R.27 He submits that the way the Judge’s decision was structured supports an inference that the Judge was aware that considering home detention is a two-step approach, as discussed by William Young P in R v Vhavha,28 and, when considering the end sentence, did so against the principle in s 16(2)(c) that a sentence of imprisonment is only appropriate when no other sentence would meet the purposes and principles of the Sentencing Act.
25 Parkin v R [2018] NZCA 404 at [16
26 Paora v R [2021] NZCA 559 at [53].
27 Fairbrother v R [2013] NZCA 340 at [30].
28 R v Vhavha, above n 22, at [31]–[36].
[39] Referring to observations in Adams on Criminal Law where it is stated that deterrence has traditionally been given particular weight in relation to serious classes of case involving elements of premeditation and rational choice,29 Mr Riley submits, that Mr Nguyen made a rational choice to be involved in the cultivation of cannabis and that this type of offending requires a response that deters both the community at large and specific individuals in particular. He says that Mr Nguyen’s offending can be compared to methamphetamine couriers driven to offend by a rational choice as compared with those who do so because of addiction or other forms of compulsion.
[40] Mr Riley submits that, while the Judge did not specifically mention any of the other purposes or principles of sentencing, it can be inferred that he turned his mind to them, especially since the Judge imposed his sentence “with some reluctance and sympathy for [Mr Nguyen’s] personal circumstances”. Mr Riley says that the Judge’s comments do not suggest a presumption of imprisonment for such cannabis cultivation offending, but that for specific cases of cultivating cannabis on a commercial scale by a profit-motivated offender, that a sentence of imprisonment is likely to be the least restrictive outcome possible. Given the significant commercial scale of the offending, Mr Nguyen’s appreciation that what he was doing was wrong and his apparent lack of remorse, Mr Riley says that the Judge’s decision to impose imprisonment was justified.
Discussion
[41]Mr Nguyen’s appeal raises three principal questions for determination:
(a)Were the Judge’s discounts for personal mitigating circumstances and time spent on EM bail sufficient?
(b)Did the Judge err in imposing a sentence of imprisonment rather than a sentence of home detention, either because a sentence of home detention ought to have been imposed in the circumstances of the case or because the Judge gave inappropriate emphasis to deterrence?
29 Mathew Downs (ed) Adams on Criminal Law (online ed, Thomson Reuters) at [SA 7.05].
(c)If there was error by the District Court Judge, what sentence should be imposed?
Were the Judge’s discounts for personal mitigating factors and EM bail insufficient?
[42] I am satisfied the Judge made no error with regard to the discount for personal mitigating factors.
[43] The Court of Appeal has held that a discount of seven or eight per cent to reflect a lack of previous convictions is orthodox.30 In the light of that guidance, I am satisfied, that, absent compelling individual circumstances, discounts of the order of
20 per cent for personal circumstances, based simply on the absence of prior convictions and the difficulties likely to be experienced in prison by persons who do not speak English, are not appropriate. The fact that the District Court has been prepared to grant discounts of that order in some similar cases is not persuasive.
[44]There are no compelling individual circumstances in Mr Nguyen’s case.
[45] I accept that Mr Nguyen has had a difficult personal history in Vietnam. However, things that happened in Vietnam, mostly before Mr Nguyen came to New Zealand, are not considerations that should have particular weight in New Zealand, bearing in mind that our justice system applies principally in respect of what people do within the jurisdiction of the New Zealand courts.
[46] Much more relevant is the fact that, on the basis of his own affidavit, Mr Nguyen appears to have breached New Zealand law and the terms of his visitor’s visa soon after he arrived by taking up employment as a painter. He then overstayed his visa and became involved in commercial cannabis cultivation, again in breach of New Zealand law.
[47] Against that background, and in the absence of evidence of positive contributions to New Zealand society or anything that suggests that a larger discount is required to ensure Mr Nguyen’s sentence is proportionate to his offending, I
30 Batick v R [2016] NZCA 307 at [27].
consider the 10 per cent discount awarded by the Judge to be appropriate, even taking into consideration the difficulties that Mr Nguyen might encounter in prison if sentenced to imprisonment.
[48] As for the discount for time spent on EM bail, in Paora v R, the Court of Appeal observed that what justifies credit at sentencing for a compliant defendant on EM bail is “the relative restrictiveness of the electronic monitoring condition, as well as compliance with it which can be monitored and verified”.31 The Court observed that discounts of between 30 and 50 per cent of the time spent on EM bail have often been used, though 50 per cent was not “uncommon” nor an upper limit. The Court stressed, however, that any assessment is an evaluative decision to be made “having regard to the restrictiveness and duration of EM bail conditions in each case”.32
[49] I acknowledge that Mr Nguyen’s freedom to move about while on EM bail was constrained. However, that is principally because he had no opportunity to be released for reasons of employment because his previous employment had been in an illegal enterprise. It was Mr Nguyen’s personal circumstances, rather than the conditions of EM bail, that engendered his restricted circumstances. While Mr Fredric says Mr Nguyen had to rely on other occupants of the household to purchase food on his behalf, that is solely evidence from the bar and does not square with the Crown’s contrary submissions that Mr Nguyen’s EM bail allowed for pre-approved absences for a range of reasons. In these circumstances, I have no sufficient basis for concluding that the Judge erred in only applying a two month discount.
Did the Judge err in sentencing Mr Nguyen to imprisonment?
[50] Mr Fredric first submission in relation to the sentence of imprisonment is, in effect, that because a sentence of home detention was available, because a suitable address for home detention was available, because others who had been charged with similar offences in similar circumstances had been sentenced to home detention, because Mr Nguyen had complied with his EM bail conditions for almost six months, and because it has been recognised that home detention carries a considerable degree
31 Paora v R, above n 26, at [48].
32 At [53].
of denunciation and deterrence, s 16 of the Sentencing Act required the Judge to sentence Mr Nguyen to home detention rather than to a imprisonment.
[51]With respect, that is not the effect of s 16.
[52] As the Court of Appeal has made clear, when Judges are deciding whether to commute a short sentence of imprisonment to a sentence of home detention, they are exercising a discretion. There is no presumption in the Sentencing Act for or against commuting a short sentence of imprisonment to a sentence of home detention, either generally or in respect of particular type of offence.33 The real issue is whether the Judge exercised that discretion with appropriate regard to the requirements of s 16, in particular s 16(2).
[53] I am satisfied that the Judge had proper regard to the direction in s 16(1). He referred to the availability of a suitable address and to the fact Mr Nguyen was a suitable candidate. It is inherent in those references that the Judge had regard to home detention and the fact it provides for a community-based sentence.
[54] With respect to s 16(2), the question is whether the Judge had appropriate regard to the purposes of sentencing in s 7(1)(a) - (c), (e), (f) and (g) and the principles of sentencing in s 8. This is another way of framing Mr Nguyen’s other ground of appeal; namely, that the Judge focused only on deterrence when sentencing Mr Nguyen to imprisonment.
Did the Judge focus only on deterrence?
[55] It is clear that a decision to impose a sentence of imprisonment over a sentence of home detention cannot be made entirely on the basis of one purpose such as deterrence.34 To do so amounts to an error of law, as Mr Fredric submits.
33 R v Vhavha, above n 22, at [29].
34 Fairbrother v R, above n 27 at [29] and Manikpersadh v R, above n 23, at [8].
[56]In Doolan v R, the Court of Appeal said:35
In our view the critical point is that the sentencing decision as between imprisonment or home detention involves a discretionary exercise that necessarily engages all of the principles and purposes in ss 7 and 8 in the Sentencing Act. Those provisions of the Sentencing Act do not accord greater weight to factors such as denunciation or deterrence than the personal circumstances of the offender. The relative weight to be given to the principles and purposes of the Act is left to be determined by the sentencing judge in all the circumstances of the case.
[57] The Court in Doolan also explained that the role of the court on appeal was “as with other appeals against sentence, on the identification of error, having regard to the discretionary nature of the decision”.36 However, as the Court of Appeal explained in McConnel v R, the weight that a sentencing judge attaches to a particular factor is not a basis to challenge the exercise of a discretion.37
[58] The question, therefore, is whether the Judge’s decision to impose imprisonment as opposed to home detention was driven entirely by deterrence, in which case it would have been an error of law, or whether the Judge merely afforded greater weight to it, as he was entitled to, in an evaluative exercise that engaged the principles and purposes of ss 7 and 8 of the Sentencing Act, or whether there was other error in the Judge’s decision to sentence Mr Nguyen to imprisonment rather than to home detention.
[59] Before considering the District Court Judge’s decision, it is instructive to consider William Young P’s analysis in R v Vhavha of the process by which a Judge should decide whether to commute a short sentence of imprisonment to a sentence of home detention.38
[60]William Young P noted that:
[31] The two-step process required for a sentence of home detention requires the Judge first to decide that the sentence which is otherwise appropriate is a short-term sentence of imprisonment (“stage one”) and then whether to commute that sentence to home detention (“stage two”). … Faithful adherence to such processes requires the judge at stage one to operate
35 Doolan v R [2011] NZCA 542 at [38] (footnotes omitted).
36 At [39].
37 McConnel v R [2013] NZCA 303 at [15].
38 R v Vhavha, above n 22.
on the assumption that there is no stage two. The underlying legislative purpose is to avoid net-widening and, more particularly, to ensure that the more lenient sentences which can be imposed at stage two are reserved for those who would truly otherwise have been imprisoned. But while there is thus good reason for the legislature to require a two stage approach to sentencing, the artificiality of the intellectual processes which are involved can cause sentencing judges some difficulty. This is particularly so as two stage sentencing processes put pressure on conventional ideas about the hierarchy of sentences.
[61] After considering a hypothetical example of how that process might play out such that a more culpable offender receives what appears to be a more lenient sentence, the President observed:
[36] Given the relatively open-textured nature of the relevant sentencing discretion, I accept that there is scope for sentencing judges to imprison on the basis that a sentence of home detention would not give the right message or simply would not look right. In the context of the Sentencing Act, this involves resort at stage two of the sentencing process to the more punitive of the potentially applicable principles of sentencing (ie those provided for in s 7(1)(a) (holding accountable), (e) (denunciation) and (f) (deterrence)). For reasons which I am about to give, however, I think that sentencing judges should be cautious about doing so.
[37] The purposes of holding an offender to account and denunciation are obviously applicable at stage one of the process, but as the example which I have given above … illustrates, they do not easily justify outcomes under which more culpable offenders receive more lenient sentences than less culpable offenders.
[62] The President then considered the circumstances of the appellant in the case before him and accepted that the appellant’s culpability warranted a sentence of imprisonment of 18 months and observed that, as such, the appellant’s culpability was effectively the same as other offenders such as a robber, burglar or drug dealer whose culpability warranted a sentence of 18 months’ imprisonment. The President said there was no obvious reason why the appellant was in any more need of being held to account than the postulated robber, burglar or drug dealer or why his conduct was more worthy of denunciation than that of the robber, burglar or drug dealer.39
[63]The President then stated:
[39]What about deterrence?
39 At [38].
[40] General deterrence is one of the primary purposes (and justifications) of sentencing. The general deterrent effect of the criminal law puts a great deal of downwards pressure on levels of offending. I also accept that legal sanctions imposed on an offender and the probability of more severe sentences in the event of further offending have the tendency (obviously not always realised) of deterring that offender from further offending. What I am more sceptical about is marginal deterrence, that is, the idea that moderate variations in sentencing severity (such as between a sentence of imprisonment and home detention) have an appreciable impact on rates of offending.
[41] Despite my general reservations about marginal deterrence, I accept that some types of offending may be more likely to be deterred than others. I also accept that this may be true of immigration offending.
[64] The President then discussed the possible deterrent effect of sentences on immigration offending and said he was reluctant to single out immigration offending as a particular type of crime for which considerations of deterrence assumed such great significance as practically to exclude home detention.40
[65] Coming now to the District Court Judge’s sentencing decision, it is clear that the Judge engaged in the two-stage process described by William Young P. The Judge considered, at stage one, whether the sentence that was otherwise appropriate was a short-term sentence of imprisonment, and, at stage two, whether to commute that sentence to a sentence of home detention. The second stage was that described in paragraph [10] of the Judge’s decision as set out at [16] above.
[66] While that paragraph focused on the question of deterrence, it followed a discussion in which the Judge had addressed, either directly or by necessary implication:
(a)in terms of the purposes of sentencing in s 7 of the Sentencing Act:
holding Mr Nguyen accountable for his offending (s 7(1(a));
(ii)promoting in Mr Nguyen a sense of responsibility for his offending (s 7(1)(b));
(iii)denouncing Mr Nguyen’s conduct (s 7(1)(e)); and
40 At [44].
(iv)protecting the community from Mr Nguyen’s offending (s 7(1)(g)); and
(b)in terms of the principles of sentencing in s 8 of the Sentencing Act:
(i)the gravity and seriousness of Mr Nguyen’s offending;
(ii)the general desirability of consistency with sentences for similar offending;
(iii)what was the least restrictive outcome appropriate in the circumstances; and
(iv)Mr Nguyen’s personal and family circumstances.
[67] While the Judge did not separately revisit those purposes and principles in his discussion of home detention versus imprisonment, it is implicit in the structure and language of his decision that those purposes and principles also informed his decision to sentence Mr Nguyen to a short term of imprisonment. In that respect, I consider the Judge’s focus on deterrence in the final paragraph was not to the exclusion of the other purposes of sentencing in s 7(1)(a), (b), (e) and (g) or to the principles of sentencing in s 8.
[68] However, because the Judge did not, at stage two, separately consider whether those other purposes and principles justified Mr Nguyen being treated differently from other offenders with a similar level of culpability who might receive an end sentence of 21 months’ imprisonment, I consider he fell into error. The Judge assumed that, because Mr Nguyen was another example of a Vietnamese person who had overstayed his visa and had engaged in commercial cannabis cultivation, this justified his sentence not being commuted to one of home detention in order to send a message to the Vietnamese community in New Zealand. The Judge did not consider whether this result was consistent with sentences that had been and would be imposed on others who had engaged in cannabis cultivation with a similar level of culpability. Nor did he consider whether that result was consistent with sentences that would be imposed
on other offenders with a similar level of culpability (the putative robber, burglar and drug dealer referred to by William Young P) who might have attracted sentences of 21 months’ imprisonment.
[69] In these respects, the Judge did not, at stage two of the sentencing exercise, have appropriate regard to the principles of sentencing in s 8(b), (c) and (g).
[70] Quite apart from the obvious human rights difficulties of sentencing a person by reference, at least in part, to their ethnic or national origins, I am satisfied that the approach adopted by the Judge was not consistent with a proper consideration of the purposes and principles of sentencing as required by s 16(2) of the Evidence Act. That conclusion is reinforced by the Judge’s statement that not only would he not entertain home detention for Mr Nguyen, but he would not be prepared to substitute home detention for imprisonment “from now on for offending on this level.” Whether that statement was aimed just at the Vietnamese community or more generally, a Judge cannot fetter his sentencing discretion in this way.
[71] As the Court of Appeal reaffirmed in Osman v R, there is no statutory basis for sentencing to deter a category of case. A sentencing judge must approach each case as an individual case. The purposes in s 7(1) must be applied rationally.41 Whether or not the sentence imposed on Mr Nguyen would have the deterrent effect asserted by the Judge, imposing the sentence on the blanket basis of sending a message to the Vietnamese community was not an appropriate exercise of the sentencing discretion. If such messages are to be sent, there are other more appropriate means; for example, through New Zealand’s immigration controls.
[72] For these reasons, I am satisfied that the Judge erred when deciding to sentence Mr Nguyen to a sentence of imprisonment rather than to a sentence of home detention.
What sentence should be imposed on Mr Nguyen?
[73] I take as my starting point the three years selected by the District Court Judge and apply the same discounts of 25 per cent for Mr Nguyen’s guilty plea and
41 Osman v R, above n 23, at [23].
10 per cent for Mr Nguyen’s personal circumstances. That reduces the sentence to 23 months.
[74] When Mr Nguyen was sentenced on 10 February 2023, he had been in custody for six weeks and then on EM bail for six months. Because Mr Nguyen has remained on EM bail pending appeal, those figures are now six weeks in custody and almost nine months on EM bail, with no issues of non-compliance. Having regard to s 9A(3), I am satisfied that a further deduction of five months is appropriate. This results in an end sentence of 18 months’ imprisonment.
[75] Coming now to stage two of the sentencing exercise, I am satisfied that a sentence of home detention should be imposed rather than a sentence of 18 months’ imprisonment. Having regard to the purposes of sentencing in s 7(1)(a), (b), (e), (f) and (g), and to the principles of sentencing in s 8(b), (c) and (g), I am satisfied that, while there is a need to denounce Mr Nguyen for his offending and to deter others from similar offending, I see no basis for treating Mr Nguyen differently from others with a similar level of culpability, whether in relation to cannabis cultivation or other offending.
[76] Given the direction in s 8(g) that the Court must impose the least restrictive sentence appropriate in the circumstances, I am satisfied that in the large majority of cases involving similar levels of culpability, a sentence of 18 months’ imprisonment would be commuted to a sentence of home detention. There is nothing on Mr Nguyen’s personal circumstances that warrant treating him any differently.
[77] Accordingly, I am satisfied that Mr Nguyen should be sentenced to a period of home detention of nine months.
[78] I note that this decision does not mean that every person, whether Vietnamese or otherwise, who pleads guilty to commercial cannabis cultivation can expect to be sentenced to home detention. Each case must be considered on its own terms.
Result
[79]I uphold Mr Nguyen’s appeal.
[80]I quash the sentence of 23 months’ imprisonment imposed in the District Court.
[81]I sentence Mr Nguyen to nine months’ home detention to be served at
, Manurewa, where Mr Nguyen has been on EM bail. The conditions of EM bail should apply to the home detention sentence.
G J van Bohemen J
1
11
0