Nguyen v Police - [2023] NZHC 922

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-000090

[2023] NZHC 922

BETWEEN
THANH VAN NGUYEN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 24 April 2023

Appearances:

C S Fredric for Appellant

S R Bicknell for Respondent

Judgment:

24 April 2023

ORAL JUDGMENT OF VAN BOHEMEN J

[Appeal against sentence]

Counsel/Solicitors:
C S Fredric, Auckland Crown Solicitor, Manukau

NGUYEN v NEW ZEALAND POLICE [2023] NZHC 922 [24 April 2023]

[1] Thanh Van Nyugen appeals the sentence of two years and three months’ imprisonment imposed by Judge D J McDonald in the District Court at Pukekohe1 after Mr Nyugen had pleaded guilty to one charge of cultivating cannabis.2

[2] The sentence was set after the Judge adopted a starting point of three years and three months’ imprisonment and applied discounts of 25 per cent for an early guilty plea and a discount of approximately 5.8 per cent because jail would be harder for Mr Nguyen, who does not speak English.

[3] Mr Nyugen appeals on the basis that the Judge erred by failing to give any credit for his previous good character. He says a greater discount than 5.8 per cent should have been applied to take account of the difficulties Mr Nguyen has experienced and will continue to experience in an environment where Mr Nguyen does not speak English and all around him do not speak another language. Counsel for Mr Nguyen, Mr Frederic, says a discount in the order of 15 per cent is warranted for personal mitigating factors, including good character and the difficult environment Mr Nguyen is experiencing in prison. He asks that the sentence of imprisonment be quashed and replaced by a sentence of home detention.3

[4]The Police oppose the appeal.

Background

[5] Mr Nguyen is a 43 year old Vietnamese national. He arrived in New Zealand in 2019 on a visitor’s visa but failed to leave when it expired.

[6] On 18 October 2022, Police executed a search warrant at a residential address in Pukekohe. The address was a two-storied dwelling with two large downstairs rooms, three upstairs bedrooms and a double standalone garage. Inside the address, Police found a large cannabis growing operation. Excluding the toilet, kitchen, lounge

1      Nguyen v Police [2023] NZDC 3305.
2      Misuse of Drugs Act 1975, s 9(1). Maximum penalty seven years’ imprisonment.
3      Mr Frederic initially proposed a discount of 20 per cent but adjusted this figure to take account of Mr Nguyen’s prior convictions.

area and one of the bedrooms, the entire dwelling had been used for cannabis cultivation.

[7] In their search, Police found 92 small cannabis plants, 45 medium sized plants, and 152 small seedlings in the downstairs area, 20 large heavily budded and ready to harvest plants in the upstairs area, and 42 similar such large plants in the standalone garage. 38 bags of potting mix, 47 bags of cannabis waste and several large containers of liquid fertilizer were also found. The dwelling was…

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: [2023] NZHC 922
Decision Date: 24 April 2023

CaseChat Overview and Summary

The appeal in Nguyen v Police is from a sentence of two years and three months’ imprisonment imposed by the District Court at Pukekohe. The appellant, Thanh Van Nguyen, pleaded guilty to one charge of cultivating cannabis. The appeal raises questions about whether the District Court Judge erred in failing to give credit for the appellant’s previous good character and, if so, what discount should have been made, and whether a discount of that order would constitute mere tinkering. Nguyen appeals on the basis that the Judge erred by failing to give any credit for his previous good character. He submits that a greater discount than 5.8 per cent should have been applied to take account of the difficulties he has experienced and will continue to experience in an environment where he does not speak English and all around him do not speak another language. The Court considers that the Judge erred in treating the absence of previous convictions as the absence of an aggravating factor rather than a mitigating factor. However, the Court finds that the discount for good character should not exceed 11 per cent. The Court finds that a discount of 11 per cent, in combination with the 25 per cent guilty plea discount, would have resulted in an end sentence of 25 months’ imprisonment; that is, a difference of two months’ imprisonment from the sentence imposed. The Court declines to set aside the sentence as this would constitute mere tinkering.

The Court dismisses the appeal.

Orders