Nguyen v Police

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…