Nguyen v The Queen
[2020] NZHC 910
•5 May 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-69
[2020] NZHC 910
BETWEEN CHARLIE NGUYEN
Appellant
AND
THE QUEEN
Respondent
Hearing: 5 May 2020 Appearances:
M J Dyhrberg QC and H G de Groot for the appellant Z A Fuhr for the respondent
Date of judgment:
5 May 2020
ORAL JUDGMENT OF JAGOSE J
Counsel/Solicitors:
Marie Dyhrberg QC, Auckland
Matai Chambers Limited, Auckland Crown Law, Wellington
NGUYEN v R [2020] NZHC 910 [5 May 2020]
[1] Charlie Nguyen was sentenced to three years and nine months’ imprisonment by Judge D J Harvey in the District Court at Manukau on 4 March 2020,1 for four offences against the Misuse of Drugs Act 1975.2
[2] Mr Nguyen’s appeal is brought on the ground the sentence is manifestly excessive. His counsel, Marie Dyhrberg QC, submits his sentence should be quashed for substitution with 14–17 months’ imprisonment, with leave reserved to apply for home detention under s 80I of the Sentencing Act 2002.
Background
[3] On 27 June 2018, police executed a search warrant at Mr Nguyen’s address. Mr Nguyen was the sole occupant. Police located, in plastic resealable bags, 12.5g of cocaine, 27.9g of methamphetamine, 393 tablets of MDMA, and 888g of ephedrine. Police also located new, empty plastic resealable bags, two sets of electronic scales, and $34,861 in cash. Mr Nguyen said the cocaine was for his personal use, but refused to make any other comment.
[4] On 28 May 2019, Judge Harvey gave Mr Nguyen a four and a half year sentence indication, calculated from a starting point of four years for the lead offence of possessing methamphetamine for supply, and applying a totality uplift of two years for the balance of the offending and a 25 per cent (18 month) reduction for a guilty plea, with the possibility of further reductions for mitigating factors.3 Following the indication, Mr Nguyen entered guilty pleas to all charges, and completed rehabilitative work.
1 R v Nguyen [2020] NZDC 3809.
2 Possession of a Class A controlled drug (27.9g of methamphetamine) for supply: Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a) (maximum penalty life imprisonment); possession of a Class A controlled drug (12.5g of cocaine) for supply: Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a) (maximum penalty life imprisonment); possession of a Class B controlled drug (393 pills containing MDMA/ecstasy) for supply: Misuse of Drugs Act 1975, s 6(1)(f) and 2(b) (maximum penalty 14 years’ imprisonment); and possession of a Class B controlled drug (888g of ephedrine) for supply: Misuse of Drugs Act 1975, s 6(1)(f) and 2(b) (maximum penalty 14 years’ imprisonment).
3 R v Nguyen CRI 2018-092-6997 DC Papakura, 28 May 2019.
[5] After Mr Nguyen accepted the Judge’s sentence indication, but before sentencing, the Court of Appeal in Zhang v R revisited drug offending sentencing.4
[6] On sentencing, the Judge took the possession of methamphetamine as the index offence, and maintained his indicated four-year starting point.5 He applied a two-year uplift to account for the possession of cocaine, ecstasy and ephedrine, offences which “are serious in and of themselves.”6 He awarded discounts of 25 per cent (18 months) for Mr Nguyen’s guilty pleas and, in acknowledgement of the Court of Appeal’s reconsideration, 17 per cent (nine months) to recognise the rehabilitative work Mr Nguyen had done to address his addictions.7
[7] Ms Dyhrberg submits the Judge erred in disregarding the Court of Appeal’s guidance, under which Mr Nguyen should have been permitted access to a lower starting point. Taken together with a lesser uplift and specific discounts for personal mitigating factors (Mr Nguyen’s addiction, rehabilitation, good character, remorse, extended remand on restrictive bail conditions, and guilty pleas), she arrives at an end sentence of 14–17 months’ imprisonment, materially less than the Judge’s 45-month sentence.
Approach to appeals against sentence
[8] I must allow the appeal only if satisfied there is error in the sentence, and a different sentence should be imposed.8 I am to assess the appropriate outcome when considered against the new guidelines. In any other case, I must dismiss the appeal.9
[9] The approach previously taken by courts on sentencing appeals continues to apply,10 so that the measure of error is the sentence be “manifestly excessive” – a principle “well-engrained” in this Court’s approach to sentence appeals.11 I will not intervene where the sentence is within the range that can properly be justified by
4 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
5 R v Nguyen, above n 1, at [3].
6 At [6].
7 At [6] and [8].
8 Criminal Procedure Act 2011, s 250(2).
9 Section 250(3).
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
11 At [33] and [35].
accepted sentencing principles. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.12
[10] In the present circumstances post-Zhang, my examination of the sentence under appeal is not to focus “on a search for error, but rather involves an assessment of the appropriate outcome when considered against new guidelines”.13
Discussion
[11] At sentencing, the Judge considered if he should revisit his sentence indication, or otherwise to apply further discounts in recognition of the Court of Appeal’s newly- relevant factors. Ultimately, he concluded the Court of Appeal’s guidelines were met by an additional nine-month discount to acknowledge the work Mr Nguyen had done to address his addiction problems.14
[12] Without doubt, the Court of Appeal’s judgment applies to all subsequent sentencings, regardless when the offending took place.15 But it expressly does not require slavish adherence to its guidelines:16
Sentencing must achieve justice in individual cases. That requires flexibility and discretion in setting a sentence notwithstanding the guidelines expressed in this and similar judgments.
[13] The Court of Appeal’s new approach is intended to benefit lower-level offenders, to provide “more flexible sentencing solutions in band one [for possession of less than 5 grams of methamphetamine], where community-based sentences need to be a starting point open to the court, not merely an end point”. Other bands’ starting points consequently are “reduce[d] slightly”:17
Access to the lower sentence starting points may be expected only by those whose role is found to be lesser in degree, and where quantities are at the lower end of the relevant scale.
12 Ripia v R [2011] NZCA 101 at [15].
13 Miller v R [2020] NZCA 131 at [4], referring to Su v R [2020] NZCA 128; and Royal v R [2020] NZCA 129.
14 R v Nguyen, above n 1, at [7]–[8].
15 Zhang v R, above n 4, at [187].
16 At [10](a).
17 At [123].
[14] On the Court of Appeal’s approach, Mr Nguyen may be seen to fall within the lesser role if “motivated solely or primarily by [his] own addiction”. But, as the Judge recognised,18 his offending also evidenced “obvious elements of commerciality, including a large sum of money”. Other elements were the quantities of Class A and B drugs in “numerous plastic zip lock bags”, new empty plastic zip lock bags, and two sets of electronic scales. In that context, no distinction is warranted by reason of Mr Nguyen’s claim only to the cocaine for personal use, and disavowal of ownership of some of the other drugs in his possession. These indicia of Mr Nguyen’s operational function raise him to the significant role, in distinction from the lesser role’s “little or no actual or expected financial gain”. While the 27.9 grams of methamphetamine in Mr Nguyen’s possession are at the lower end of band two’s scale to 250 grams, it also is a quantity more than five times its five-gram entry point. In these respects, Mr Nguyen can have no expectation of access to the lower sentence starting point. Given the lead offending’s quantity and commerciality, a four-year starting point in band two’s scale of two to nine years’ imprisonment is within range, if stern.19
[15] Clearly the offending overall should be addressed by concurrent sentences.20 They are each offences of a similar kind, connected in time and nature. Viewed on a standalone basis, possession of the present quantities of cocaine and ephedrine in a commercial context might each attract up to a three-year sentence,21 and the ecstasy/MDMA possession perhaps a year or two.22 But their contribution to the totality of Mr Nguyen’s offending cannot mathematically be derived from those numbers. Instead, the totality of the offending here is Mr Nguyen’s presentation as a relatively small-scale but nonetheless profitable commercial Class A and B drugs operation.23 If small-scale Class B operations might attract starting points of “up to five years”,24 then expansion to Class A drugs should claim a higher tariff. The Judge’s two-year uplift thus again is within range, if stern.
18 R v Nguyen, above n 3, at [10].
19 See Govender v R [2019] NZHC 3212 at [19], upholding on appeal a three and a half year starting point for a similar quantity of methamphetamine in comparable circumstances.
20 Sentencing Act 2002, s 84.
21 See R v Logan [2017] NZHC 994 at [8]; R v Kilgour HC Dunedin S4/00, 2 November 2000 at [8];
R v Cavanagh [2015] NZHC 2437; He v R [2017] NZCA 77 at [15].
22 See R v Love HC Auckland CRI 2009-004-13858, 7 May 2010 at [21].
23 Sentencing Act 2002, s 85.
24 R v Wallace [1999] 3 NZLR 159 (CA) at [32].
[16] I am not much attracted to Ms Dyhrberg’s ‘thousand cuts’ approach to discounts for Mr Nguyen’s mitigating personal features. Applied sequentially, they amount to about a two-thirds’ discount, and slightly more from Ms Dyhrberg’s lower starting point (while then double-counting addiction as both permitting Mr Nguyen access to the lower band starting point and giving him a substantial discount from it).
[17] The Judge had limited information on which to assess Mr Nguyen’s claims to personal mitigation. He had only Mr Nguyen’s pre-sentence report and personal letter, and he was aware of Mr Nguyen’s rehabilitative actions while on bail (particularly as sentencing was delayed, and bail variations obtained, to permit their completion), attested in a letter from an Odyssey House support worker, Joseph Moore.
[18] Mr Nguyen’s letter is strong on assertion and light on detail. There are reasons not to take it at face value: Mr Nguyen starts by saying “whatever punishment you have in store for me, I will accept and respect your decision”, which this appeal (while entirely within Mr Nguyen’s rights to pursue) undermines. He says he has “always lived an honest life and [has] always been a law abiding citizen”. But the summary of facts records he has previously appeared (for minor driving offences while his licence was suspended or revoked, and then while disqualified offending in 2008, but nonetheless warranted being disclosed by him).
[19] Mr Nguyen claims an extreme gambling addiction, as his “choice of drug to mask [his] depression”, while contending to be “very anti” drugs per se. He adds without further explanation his “drug and gambling addiction”. He suggests he took up drugs while mixing “with the wrong people” on holiday in New Zealand, but only had been back in New Zealand for a few months before his arrest. He expressly refuses to “get into details” on the source of the drugs in his possession, while saying “it is not all mine”. He claims redemption from a new partner and attendance at the rehabilitation programmes he attended.
[20] Mr Moore had just completed and received a diploma in applied addictions counselling, and had provisional practitioner membership with the Addiction Practitioners’ Association Aotearoa New Zealand. He explains he worked as Mr Nguyen’s counsellor and “together we explored his offending, lifestyle and his
drug and alcohol problems”. From Mr Nguyen’s answers to Mr Moore’s otherwise unspecified “series of questions”, Mr Moore is of the opinion, at the time of the offending, Mr Nguyen “was suffering from major depression and general anxiety disorder. In turn, his method of coping was gambling, as well as drugs and alcohol”. Mr Moore’s counselling has given Mr Nguyen alternatives to those damaging coping mechanisms.
[21] None of that evidences the sort of addiction the Court of Appeal had in mind as commending discounts “of up to 30 per cent”. Persuasive, not merely self-reporting, evidence is required of causative addiction,25 in nature to impair Mr Nguyen’s ability to exercise rational choice and thus to diminish his culpability, with which commercial dealing is likely to be inconsistent.26 I am not provided with any foundation on which to accept Mr Moore’s expertise extends to clinical identification of addiction, or possibly even psychopathy, and therefore do not accept his opinions establish those as admissible evidence.27 But I accept his evidence his provision of counselling is founded on his opinions of Mr Nguyen’s addictions and mental disorders. And I accept his counselling has provided Mr Nguyen with desirable coping mechanisms.
[22] The Judge’s additional nine-month discount from his indicated 54-month sentence for Mr Nguyen’s rehabilitation efforts is to apply an additional 17 per cent discount. It implicitly takes into account Mr Nguyen’s character and remorse, as reflected by his rehabilitation efforts. It provides a marginally more generous end sentence than if it had been applied in orthodox fashion, before the final discount for guilty pleas. It is, moreover, more generous than the sequential 10 and 5 per cent discounts now additionally sought by Ms Dyhrberg for those personal factors.
[23] Ms Dyhrberg seeks additionally to adduce letters from Mr Nguyen’s older sister, former wife, and current partner. There is nothing in them that could fairly be described as fresh or cogent.28 They are essentially reinforcements of Mr Nguyen’s characterisation of his family life as ruined by his gambling addiction. Notably, there
25 See Miller v R, above n 13, at [15] and [19].
26 Zhang v R, above n 4, at [148]–[149].
27 Evidence Act 2006, ss 23–25.
Lundy v R [2013] UKPC 28 at [119]–[120]; Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at
[34], endorsing R v Bain [2004] 1 NZLR 638, (2003) 20 CRNZ 637 (CA) at [22] and [26].
is no mention of any drug problem, beyond his partner’s reference to “shisha” and “real smokes” (both of which I apprehend are references to tobacco in one form or another).
[24] Last, Ms Dyhrberg seeks an additional six-month discount to acknowledge Mr Nguyen’s 14 months on restrictive bail conditions. The restriction was a night curfew at domestic residences, of which he was on one occasion found to be in breach (in not responding to a 1.00 am check, but without further action being taken). The duration of the bail was in large part to accommodate his voluntary rehabilitation efforts.29 The degree of restriction to his liberty is not comparable with the degree of restriction involved in a prison sentence.30 To the extent any discount may have been justified, it is accommodated by the Judge’s final nine-month discount, which otherwise would require reduction to avoid double-counting.
[25] Ultimately, I identify no manifest excess in the Judge’s sentence. It meets the applicable purposes and principles of sentencing – particularly to hold Mr Nguyen accountable for his offending, and to deter him from such in the future – and is the least restrictive outcome available. I therefore do not need to consider Mr Nguyen’s request I reserve him leave to seek home detention.
Result
[26]The appeal is dismissed.
—Jagose J
29 Mr Nguyen also was under 24/7 curfew at a rehabilitation centre, that being the centre’s requirement for his voluntary admission. I do not regard that as a bail restriction at all.
30 Keown v R [2010] NZCA 492 at [12].
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