Nguyen v Police
[2023] NZHC 922
•24 April 2023
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 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 arrested leaving the address by vehicle prior to the execution of the search warrant. On arrest, Police located keys fitting both the gate and doors to the dwelling, and clothing in the vehicle that had a very strong smell of cannabis.
District Court decision
[9] Judge McDonald noted that Mr Nguyen was one of a large number of Vietnamese nationals who had remained in New Zealand illegally and had become involved in the commercial cultivation of cannabis. The Judge noted that the Police had identified a large increase in commercial scale cannabis cultivation set up for the sole purpose of making money.4
[10] After going through the summary of facts, the Judge noted that Mr Nguyen had failed to give information about how he became involved in the operation, what his role was or who else was involved. However, the Judge considered that, given Mr Nguyen’s age, he was “more than the mere gardener”.5
4 Nguyen v Police, above n 1, at [3]-[4].
5 At [7].
[11] In setting the starting point, the Judge held that Mr Nguyen’s offending fell within category 2 of the guideline judgment of R v Terewi,6 which has a range of two to four years’ imprisonment. The Judge noted that Mr Nguyen’s counsel had proposed a starting point of two years and nine months. Given the sophistication of the operation and the number of plants, the Judge considered a starting point of three years and three months was appropriate.7
[12] On Mr Nguyen’s personal aggravating and mitigating factors, the Judge said, “there needs to be no uplift because you have no previous convictions in this country”. However, the Judge noted that Mr Nguyen was an overstayer.
[13] The Judge applied a discount of 25 per cent for Mr Nguyen’s early guilty plea, and a “small discount” amounting to 5.8 per cent because jail would be harder for Mr Nguyen because he did not speak English. These deductions resulted in the end sentence of two years and three months’ imprisonment. 8
[14] The Judge observed that the pre-sentence report identified Mr Nguyen’s offending related factors as “supportive attitudes and self-entitlement”. The Judge considered this meant Mr Nguyen considered it was appropriate for him to come to this country and break the law. The Judge noted that Mr Nguyen had refused to talk about his offending to his probation officer and had no insight or remorse for what he had done.
[15] It transpires that Judge McDonald was mistaken about Mr Nguyen’s lack of previous convictions. In fact, Mr Nguyen was convicted in 2021 for carelessly operating a vehicle and driving with a breath alcohol level exceeding 400 micrograms of alcohol per litre of breath.
Approach on appeal
[16] 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
6 R v Terewi [1999] 3 NZLR 62 (CA).
7 Nguyen v Police, above n 1, at [9]-[12].
8 At [13]-[14].
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.9 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.
[17] 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. 10 Unless there is a material error in the end sentence, the Court will not intervene.11 There will be a material error if the end sentence is manifestly excessive or wrong in principle.12 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.13 Accordingly, mere tinkering is not permitted.14 However, there may be cases where there has been error that requires correction, even if the sentence imposed is within range.15
Submissions for Mr Nguyen
[18] Mr Frederic submits that the Judge erred in failing to apply an appropriate discount for Mr Nguyen’s previous good character. Mr Frederic submits that, in accordance with s 9(2)(g) of the Sentencing Act 2002, the absence of previous convictions is a mitigating factor that must be taken into account and is not merely the absence of an aggravating factor. Mr Frederic also submits that the fact Mr Nguyen is an overstayer does not disentitle him to a discount for good character. Mr Frederic also places some emphasis on the difficulties Mr Nguyen has experienced in jail. Mr Frederic submits that, if appropriate account is taken of those two considerations,
9 Criminal Procedure Act 2011, s 250(3).
10 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [30]; Tamihana v R [2015] NZCA 169 at [14] and [29] – [30] .
11 Te Aho v R [2013] NZCA 47 at [30]; Tamihana v R, above n 9, at [14].
12 Tamihana v R, above n 9, at [14].
13 Tutakangahau v R, above n 10, at [36]; Tamihana v R, above n 9, at [14].
14 Maihi v R [2013] NZCA 69 at [21].
15 Tutakangahau v R, above n 10, at [36]
Mr Nguyen should receive a discount of the order of 15 percent, which would make him eligible for home detention.
[19] Mr Frederic refers to several cases in support of the appeal. The most relevant are Manawaiti v R,16 where the Court of Appeal reduced a sentence for sexual violation offending by nine months (a discount of 8.3 per cent) in recognition of the appellant’s previous good character, notwithstanding his traffic related convictions, Rana v R,17 where the Court of Appeal held that the District Court Judge had fallen into error in treating the absence of convictions as an absence of an aggravating factor rather than a mitigating factor, and two decisions, R v Dinh18 and Nguyen v Police¸19 which involved commercial scale cultivation of cannabis by Vietnamese defendants who had difficulty speaking English and all but one of whom were overstayers. In those cases, good character discounts of 20 per cent and 15 per cent (which also took into account old age) were given. Mr Frederic invites me to accept that the size of the discounts reflected the Courts’ acceptance of the difficulties the defendant would experience with prison life and not by reference to eligibility for home detention.
Submissions for the Police
[20] Ms Bicknell, counsel for the Police, submits that, while Judge McDonald’s understanding that Mr Nguyen had no previous convictions was in error, that would not have changed the sentence imposed. Mr Nguyen’s previous driving related convictions would not have justified any uplift for previous offending. However, they properly support the Judge’s decision not to grant a discount for previous good character.
[21] Ms Bicknell says that Mr Nguyen has not advanced anything evidencing good character or actual positive contributions to society, which the Court of Appeal in Parkin v R said was a relevant factor for assessing any discount for good conduct.20
16 Manawaiti v R [2013] NZCA 88 at [20].
17 Rana v R [2014] NZCA 468, at [16].
18 R v Dinh [2021] NZDC 10539 at [11], [13] and [14].
19 Nguyen v Police DC Hamilton CRI-2021-024-000897, 2 March 2022 at [32]. That decision was a sentencing indication. (Nguyen v Police No 1). The discount was confirmed in Nguyen v Police [2022] NZDC 5832 at [2] (Nguyen v Police (No 2).
20 Parkin v R [2018] NZCA 404 at [16].
However, she submits that if any modest discount of 7 – 8 per cent were to be given, it would constitute tinkering.
[22] Finally, Ms Bicknell says that Mr Nguyen has provided no evidence to show that his four months in custody led to such unexpected and unusual hardship such that a further discount was required, referring to Ropiha v R.21 She submitted that any difficulties associated with Mr Nguyen’s lack of English while in custody were appropriately recognised by the Judge’s initial discount and a further discount is not warranted in light of Mr Nguyen’s time spent in custody now.
Discussion
[23]Mr Nguyen’s appeal raises the following questions:
(a)Did the Judge err in applying no discount for previous good character?
(b)If so, what discount should have been made?
(c)Would a discount of that order be more than mere tinkering?
Did the Judge err in applying no discount for previous good character?
[24] As the Court of Appeal confirmed in Rana v R,22 to treat the absence of convictions as the absence of an aggravating factor rather than a mitigating factor is an error that can be corrected on appeal.
[25] It is plain that the District Court Judge made that error, based on his understanding that Mr Nguyen had no previous convictions. I do not consider that the error is corrected by the fact that it has now come to light that Mr Nguyen has two driving related convictions. They are not directly related to the offending for which Mr Nguyen was sentenced. The offences warrant being taken into account when considering any deduction for Mr Nguyen’s good character. However, they are not of
21 Ropiha v R [2013] NZCA 60 at [27].
22 Rana v R, above n 17.
such gravity that they would necessarily preclude any deduction for good character, as was accepted in Manawaiti v R and other decisions.23
What discount should have been made?
[26] Any discount for previous good character is ultimately a matter of impression.24 While minor convictions may not automatically preclude a discount for otherwise good character, any discount depends on relevant factors such as the length of the period for which a defendant has exhibited good character, whether the evidence consists of an absence of convictions or includes positive contributions to society, and the need for any discount to be proportionate to the overall sentence.25
[27] Mr Nguyen has shown no evidence of positive contributions to society nor anything to suggest that a discount was required to ensure his sentence was proportionate to his offending. However, I accept that his personal circumstances, other than his driving convictions, are little different from the defendants in R v Dinh26 and Nguyen v Police,27 where substantial discounts were made by reference to the absence of previous convictions and the difficulties the defendants would have with prison life because they did not speak English.
[28] In R v Dinh, discounts of just over 45 per cent were applied to all four defendants who had pleaded guilty in relation to commercial-scale cannabis cultivation at four Auckland addresses. The discounts recognised the defendants’ guilty pleas, lack of previous convictions and the fact they spoke a foreign language which would make serving sentences of imprisonment difficult.28
[29] One defendant, who was identified as coordinating the growing of cannabis, was held to come within category 3 of R v Terewi, and to warrant a starting point of three years and six months’ imprisonment.29 The other three defendants, who were
23 Manawaiti v R, above n 16, at [20]. See also Lamb v Police HC Christchurch CRI-2008-409-223, 19 February 2009 at [5] and [20].
24 R v Hockley [2009] NZCA 74 at [32].
25 Parkin v R, above n 20, at [16].
26 R v Dinh, above n 17.
27 Nguyen v Police (No 1), above n 19.
28 R v Dinh, above n 18, at [8] and [12] – [14].
29 At [2] and [10].
described as crop sitters or gardeners, were held to come within category 2 of R v Terewi and to warrant starting points of two years and nine months’ imprisonment.30 All but one of the defendants were illegally in New Zealand.31 No account appears to have been taken of that factor.
[30] As a result of the discounts, all four defendants were eligible for and were sentenced to home detention.
[31] Nguyen v Police concerned a single-house commercial-scale cannabis cultivation operation, similar to the present case. The Mr Nguyen in that case was a 67 year old Vietnamese man who had been illegally in New Zealand and evading deportation for over 10 years. In the sentencing indication, the Judge considered him to be the harvester and groomer of the cannabis cultivation and to have had a role that was integral to the cultivation, its success and harvest, but that he was not the principal.32 He was held to come within category 3 of R v Terewi, and to warrant a starting point of three years and six months’ imprisonment.33
[32] On the basis the defendant had no previous convictions and had lived until 67 without encountering the criminal law the Judge allowed a discount of 10 per cent.34 On the basis the defendant would struggle to adjust to a sentence of imprisonment, the Judge allowed a further 5 per cent discount. The Judge noted that a further discrete discount would be made when the defendant was sentenced to take account of the time spent in custody.35
[33] At sentence, the Judge said the fact the defendant had been illegally in New Zealand for almost 11 years gave some concern when a sentence of home detention was being sought. However, bearing in mind the defendants’ age, the fact he had been in custody for four and a half months and the defendant’s clear insight into how he had become involved in the offending and his clear awareness of and willingness to be deported at the end of the sentence, the Judge considered it appropriate to give the
30 At [11].
31 At [9].
32 Nguyen v Police (No 1), above n 19, at [20] and [26].
33 At [20] and [27].
34 At [31] – [32].
35 At [33] – [35].
defendant the opportunity of home detention.36 The Judge then deducted nine months for the time spent in custody, which resulted in an end sentence of 15 months’ imprisonment. A sentence of seven and a half months’ home detention was then imposed.37
[34] While I accept there are parallels between these decisions, I do not consider they provide a compelling basis for adjusting Mr Nguyen’s sentence.
[35] First, as the Judge noted at the Nguyen sentencing indication, District Court sentencing in relation to cannabis cultivation varies considerably.38
[36] Secondly, a discount of 20 per cent just for the absence of prior convictions and the difficulties likely to be experienced in prison is high, particularly when people have been breaking the law by living illegally in New Zealand. Given that the Court of Appeal has held that a discount of seven or eight per cent to reflect a lack of previous convictions is orthodox,39 even the 10 per cent discount in Nguyen for that factor is high. However, it took into account the defendant’s age, which is considerably higher than the current Mr Nguyen.
[37] Thirdly, unlike the other Mr Nguyen, the current Mr Nguyen has been uncooperative and has shown no insight into his offending. In addition, he has prior convictions, albeit not directly relevant to the current offending. In these circumstances, it would have been open to the Judge to have offered no discount at all for good character.40
[38] Fourthly, the discount Judge McDonald made for the difficulty Mr Nguyen will encounter while in prison is slightly higher than that made for the other Mr Nguyen in respect of that factor.
[39] Taking all these considerations into account, I consider that any discount for personal circumstances, including good character and the difficulty of prison life for
36 Nguyen v Police (No 2), above n 19, at [4] – [6].
37 At [8].
38 Nguyen v Police (No 1), above n 19, at [21].
39 Batick v R [2016] NZCA 307 at [27].
40 Strydom v R [2018] NZHC 358 at [28].
Mr Nguyen, would have been no higher than 11 per cent. That discount, 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.
Would any discount for good character be mere tinkering?
[40] In Cao v Police, a case with very similar facts where a sentence of two years and three months’ imprisonment was also imposed, Downs J accepted that a difference of two months constituted tinkering.41 I reach the same conclusion.
[41] I also take into consideration that the possibility of home detention was considered and recommended in the pre-sentence report. It was squarely before Judge McDonald when he sentenced Mr Nguyen.
[42]Accordingly, I decline to set aside the sentence.
Result
[43]I dismiss the appeal.
G J van Bohemen J
41 Cao v Police [2022] NZHC 2034 at [17]-[19].
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