Nguyen v The Queen - [2015] NZCA 422

IN THE COURT OF APPEAL OF NEW ZEALAND

CA275/2015
[2015] NZCA 422

BETWEEN	PHUONG ANH NGUYEN Appellant
AND	THE QUEEN Respondent

Hearing:	8 July 2015
Court:	Cooper, Keane and Kós JJ
Counsel:	M B Meyrick for Appellant J E Mildenhall for Respondent
Judgment:	9 September 2015 at 11 am

JUDGMENT OF THE COURT

A An extension of time in which to appeal is granted.

B The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Keane J)

Between April and August 2011, New Zealand Customs intercepted eight packages labelled as medicines, clothing and DVDs sent by airmail from Vietnam, mostly from Hanoi, addressed to Vietnamese people at Auckland addresses. They contained in excess of 30,000 pseudoephedrine-based tablets.
On 5 August 2011, Van Anh Tran and Phuong Anh Nguyen were arrested and charged with importing into New Zealand those eight consignments of a class C controlled drug, between 9 April and 5 August 2011, and with possessing on the day of their arrest the last three of those packages, which had been the subject that day of a controlled delivery.
On 23 February 2012 Mr Tran pleaded guilty to all of those offences as they concerned him, and was sentenced to imprisonment for four years and one month. On 15 October 2013 he was deported from New Zealand.
Ms Nguyen, with whom on the Crown’s case Mr Tran was at the time in a relationship, denied any part in this offending. She accepted that she had assisted Mr Tran in the ways attributed to her, but only because they were in a relationship. She did not know what the packages contained, even one that Mr Tran had opened in her bedroom just before their arrest.
In the event Ms Nguyen did not go to trial until 3 December 2014, almost three and a half years after her arrest. She was then found guilty of importing five of the eight packages, and of possessing one of them on the date of her arrest. She was acquitted of importing three other packages, and of possessing on the day of her arrest another of the three delivered that day.
On 25 March 2015 Judge Ronayne sentenced Ms Nguyen to imprisonment for two years and seven months, concurrently for each of her offences, deeming her to have been as responsible as Mr Tran for the importations made to the extent of the jury’s verdict.[1] She appeals both her conviction and her sentence.

Grounds of appeal

[1]R v Nguyen [2015] NZDC 5000.

In her first two grounds of appeal against her conviction, Ms Nguyen contends that, as a result of a pre-trial ruling given by Judge Hastings on 23 October 2014, she was denied a fair trial.[2]
[2]R v Nguyen DC Auckland CRI-2011-092-16706, 23 October 2014.
Ms Nguyen does not contest Judge Hastings’ finding that the delay until her trial, while undue, fell short of being egregious and was not in itself a source of a miscarriage of justice.…

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.

Continue reading Nguyen v The Queen

Details

AGLC: Nguyen v The Queen [2015] NZCA 422
Case: [2015] NZCA 422
Decision Date: 9 September 2015 at 11 am

CaseChat Overview and Summary

The appeal in Nguyen v The Queen concerns the conviction and sentencing of Phuong Anh Nguyen, who was found guilty of importing and possessing pseudoephedrine-based tablets. Nguyen was found guilty of importing five of the eight packages containing the tablets, and possessing one of them on the day of her arrest. She appealed both her conviction and sentence, arguing that she was not a principal offender but at most a party, and that the delay until her trial was prejudicial. The key issues the court had to decide were whether the trial judge correctly ruled that Nguyen could not rely on hearsay evidence from her co-offender, Van Anh Tran, and whether the sentence imposed was proportionate.

The Court of Appeal found that the trial judge was correct in ruling that Tran's evidence could not be admitted as it was unreliable hearsay. Even if the delay until trial was prejudicial, admitting Tran's evidence would not have been a proportionate remedy. The court also found that the late and unexpected evidence from Customs Officer Swann about Nguyen selling her phone did not prejudice her right to a fair trial, as the judge neutralised its impact in directions to the jury. The court further held that Nguyen's sentence, which was broadly 75% of her co-offender's sentence, was proportionate considering the discount for the delay until trial and other mitigating factors.

The Court of Appeal granted Nguyen an extension of time to appeal but dismissed her appeal against conviction and sentence.

Orders