Nguyen v The Queen
[2020] NZCA 402
•10 September 2020 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA297/2020 [2020] NZCA 402 |
| BETWEEN | CHARLIE NGUYEN |
| AND | THE QUEEN |
| Court: | Courtney, Wylie and Muir JJ |
Counsel: | M J Dyhrberg QC for Appellant |
Judgment: | 10 September 2020 at 10 am |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal is dismissed.
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REASONS OF THE COURT
(Given by Courtney J)
Introduction
In May 2019, following a sentence indication given by Judge Harvey in the District Court at Papakura,[1] Charlie Nguyen pleaded guilty to possessing, for the purpose of supply, methamphetamine, cocaine, ecstasy and ephedrine. Judge Harvey imposed a sentence of three years and nine months’ imprisonment.[2] Jagose J dismissed Mr Nguyen’s appeal against that sentence.[3]
[1]R v Nguyen DC Papakura CRI 2018-092-6997, 28 May 2019 [Sentencing indication].
[2]R v Nguyen [2020] NZDC 3809 [Sentencing decision].
[3]Nguyen v R [2020] NZHC 910 [High Court judgment].
Mr Nguyen has applied for leave to bring a second appeal on the ground that a miscarriage of justice may occur if leave is not granted. Mr Nguyen wishes to argue that the lower Courts failed to correctly apply Zhang v R, and to adequately recognise the mitigating factors through appropriate discounts. [4]
[4]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
This Court must decline leave for a second appeal unless it is satisfied that either the appeal involves a matter of general or public importance or that a miscarriage of justice may have occurred or may occur unless the appeal is heard.[5] The threshold for meeting these prerequisites is high.[6]
Sentencing in the District Court
[5]Criminal Procedure Act 2011, s 253(3).
[6]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].
The sentence indication was given on the basis that Mr Nguyen had been found in possession of:
(a)27.9 grams of methamphetamine;
(b)12.5 grams of cocaine;
(c)383 tablets containing MDMA (ecstasy);
(d)888 grams of ephedrine; and
(e)$34,861.60 cash.
In addition, the police found new empty resealable plastic bags and two sets of electronic scales.
The Judge treated the methamphetamine offending as the lead charge and placed it in band 2 of R v Fatu, which would attract a starting point between three and nine years.[7] Taking into account the quantity and obvious elements of commerciality the Judge took a four-year starting point and uplifted it by two years to reflect the other charges. The Judge indicated that a 25 per cent discount would be applied in the event of a guilty plea, which would result in an end sentence of four years and six months’ imprisonment.
[7]R v Fatu [2006] 2 NZLR 72 (CA) at [34].
Mr Nguyen pleaded guilty to all of the charges on 28 May 2019, the same day as the sentence indication. However, sentencing did not take place until the following year, on 4 March 2020. One of the reasons for the delay in sentencing was so that Mr Nguyen could undertake treatment for drug and gambling addiction. By that point this Court had issued its revised methamphetamine sentencing guidelines in Zhang v R. The Judge acknowledged the application of Zhang but did not consider that it ought to lead to a change in the starting point. He did however recognise Mr Nguyen’s addiction problems by allowing a nine-month (17 per cent) discount, resulting in the end sentence of three years and nine months.
Appeal to the High Court
The High Court was required to allow the appeal only if satisfied that there was an error in the sentence and that a different sentence should be imposed.[8] Recognising the potential effect of Zhang, the Judge noted that his approach would not focus on a search for error but rather would involve an assessment of the appropriate outcome when considered against the new guidelines.[9]
[8]Criminal Procedure Act, s 250(2).
[9]High Court judgment, above n 3, at [10] citing Miller v R [2020] NZCA 131 at [4]; Su v R [2020] NZCA 128 at [7]; and Royal v R [2020] NZCA 129 at [30].
Looking at the obvious commerciality of Mr Nguyen’s operation and the quantity, the Judge considered that the four-year starting point, even under the Zhang revised band 2 (starting point between two and nine years’ imprisonment) was within range, if stern. He took the same view of the uplift for the other offending describing Mr Nguyen’s overall offending as a “relatively small-scale but nonetheless profitable commercial Class A and B drugs operation”.[10]
[10]At [15].
The Judge then turned to the issue of discounts for Mr Nguyen’s personal mitigating factors. Although, self-evidently, he accepted the fact of Mr Nguyen’s addictions, the Judge was not inclined to accept Mr Nguyen’s assertions at face value. Nor did he accept the opinion tendered by Mr Moore, a support worker at Odyssey House, that Mr Nguyen was suffering from major depression and a general anxiety disorder. He did, however, accept the support worker’s evidence regarding the counselling that he had undertaken with Mr Nguyen. He placed no weight on personal information offered by Mr Nguyen’s family. The Judge’s conclusion was that the discount given in the District Court to reflect Mr Nguyen’s efforts at rehabilitation implicitly took into account his character and his remorse and was generous.
The Judge rejected the possibility of any further discount to reflect Mr Nguyen’s 14 months on restrictive bail conditions (a night curfew at domestic residences), noting that the length of time on bail was in large part to accommodate his rehabilitative efforts and necessarily accommodated by the nine-month discount.
Application for leave
The focus of the proposed appeal would be on the approach taken in the lower Courts to Mr Nguyen’s addiction. Ms Dyhrberg, for Mr Nguyen, submits that both Courts failed to properly address the interface between Mr Nguyen’s addiction and his culpability. It was clear that both Judges accepted that Mr Nguyen had significant addictions because his rehabilitation had been facilitated by favourable bail conditions and recognised by the discount given. Ms Dyhrberg wishes to demonstrate that, against that background, the High Court Judge was in error in then rejecting the possibility of a discount for the addiction as recognised in Zhang. This error was the result in part of the Judge’s refusal to put weight on Mr Moore’s report. Moreover, because it did not seem that the fact of addiction was ever in dispute for the purposes of s 24(2) of the Sentencing Act 2002, it was for the Crown to disprove the role of addiction in the offending under s 24(2)(c). She was also critical about the assumptions that both Judges made about the money found on Mr Nguyen’s person, given that there was no evidence about its provenance .
It is clear from Zhang that the assertion of addiction as a causative factor in commercial dealing needs to be approached with some care. Non-causative addiction will generally have little weight.[11] The Court accepted that the effect of addiction could coexist with commercial dealing. However, the Court was also clear that any discount for addiction should be based on “persuasive evidence, as opposed to mere self-reporting”.[12]
[11]Zhang, above n 4, at [147].
[12]Zhang at [148].
We do not think it is arguable that the Judge erred in his assessment of the evidence presented to him. Mr Moore’s report is at a level of generality such that the Judge was entitled to find it did not provide adequate evidence on which he could conclude that Mr Nguyen’s offending was causatively connected to his addiction.
We do not see that there is any risk of miscarriage arising in this case. The application for leave to bring a second appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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