Phan v The King
[2023] NZHC 2009
•31 July 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-498
[2023] NZHC 2009
BETWEEN THANH NGA PHAN
Appellant
AND
THE KING
Respondent
Hearing: 27 June 2023 Appearances:
S Norrie for Appellant
R McDonald for Respondent
Judgment:
31 July 2023
JUDGMENT OF ANDERSON J
This judgment was delivered by me on 31 July 2023 at 3.00 pm.
………………………………
Registrar/Deputy Registrar
Solicitors:
Kayes Fletcher Walker, Manukau
PHAN v R [2023] NZHC 2009 [31 July 2023]
Introduction
[1] Ms Phan appeals against her sentence of two years nine months’ imprisonment for four charges of permitting a premises to be used for cannabis cultivation1 following guilty pleas on those charges. The charges relate to four tenanted residential properties owned by Ms Phan.2
[2] The question on appeal is whether the sentence was manifestly excessive.3 This Court must allow the appeal if it is satisfied that, for any reason, there is an error in the sentence imposed and that a different sentence should be imposed.4
Background
[3] The summary of facts sets out that on 16 April 2021, the police executed search warrants at five residential properties across Auckland, four of which were owned by Ms Phan. The fifth was owned by her then husband, Mr Nguyen, who has since been convicted of a charge under s 12 in relation to that property. Each of the tenanted houses had been extensively modified for the cultivation of cannabis on a commercial scale. Ms Phan’s properties were:
(a)19 Houkura Way, Sandringham;
(b)20 Martindale Lane, Tuakau;
(c)69 Longford Park Drive, Takanini; and
(d)79 Beatty Road, Pukekohe.
[4] At 19 Houkura Way Sandringham, the police found 72 mature cannabis plants and 50 smaller cannabis plants. The plants were located in the garage and all six rooms of the upper level of the house, excluding the hallway. One of the upstairs rooms had been converted into a processing room and contained a bucket of cannabis head and a
1 Misuse of Drugs Act 1975, s 12. Maximum penalty of three years’ imprisonment.
2 R v Phan [2022] NZDC 25558.
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]-[35].
4 Criminal Procedure Act 2011, s 250(2).
further ziplock bag of cannabis head. The floor of that room was covered in cut cannabis material.
[5] At 20 Martindale Lane the police found cannabis plants in various stages of growth throughout the house namely 92 small plants ranging from 10–25 centimetres in height and 113 mature plants ranging between 75–107 centimetres in height. In the garage, police also located 296 grams of cannabis head drying on a plastic tray.
[6] At 69 Longford Park Drive police found 231 plants between 23-160 centimetres in height and 34 seedlings between 9–11 centimetres in height.
[7] At 79 Beatty Road police found cannabis plants in various stages of growth. Specifically, 41 cannabis seedlings all approximately 8 centimetres in height, 36 smaller cannabis plants between 20–30 centimetres in height and 100 larger cannabis plants between 46–100 centimetres in height.
[8] Ms Phan was not present at any of the premises when police executed their search warrants. When Ms Phan was arrested with her husband Mr Nguyen at their home address, a large (but unconfirmed) amount of cash in various currencies as well as luxury items were located at the property. Ms Phan declined to make a statement to police.
District Court Decision
[9] Judge McNaughton outlined the facts of Ms Phan’s offending. He commented that Ms Phan had no previous convictions and therefore had a low risk of future offending and the ability to comply with community-based sentences. The Judge referred to the pre-sentence report recommendation of a sentence of community detention to enable Ms Phan to support her elderly parents and young children. He noted that because of family violence Ms Phan had separated from her husband and was caring for her children with the support of her parents.
[10] The Judge recorded that Ms Phan claimed that she had no knowledge of the cannabis operations and that she was too busy to inspect the properties. The Judge
observed that this was “completely inconsistent with [Ms Phan’s] plea of guilty to these charges”.5
[11] The Judge referred to a civil forfeiture order made in 2017 concerning a cannabis cultivation operation at a property owned by Ms Phan in Australia. He said this evidence had been ruled relevant and admissible in a pre-trial ruling prior to Ms Phan’s guilty pleas. The Judge referred to the Crown’s submission that taking this order into account, no good character discount was justified.
[12] The Judge characterised Ms Phan’s main submission as being that she was some distance from the offending, with there being no evidence that Ms Phan was ever at the properties while cannabis was being grown and that she would not have known of the operations or their extent. Her counsel contended that it was not clear from the statement of facts that Ms Phan received any profits and also suggested that a third party was the principal organiser and arranger.
[13] The Judge referred to Ms Phan’s personal circumstances. She has children aged 13 and 19 from her first marriage as well as two four year-old twins with serious medical conditions, including that one of the twin daughters has been diagnosed with autism.
[14] The Crown relied on several decisions on the sentencing starting point: R v Findley;6 Wallace v Police;7 R v Sharp;8 and R v Edmonds.9 Judge McNaughton observed that each of the operations in the present case was a “major commercial enterprise in its own right”, all of which would fall into category three of Terewi,10 with the real measure of criminality being indicated by the yield from each of the premises. The Judge estimated this to be in excess of $100,000 each. He noted that a starting point for cultivation of the four cannabis operations together would be somewhere in the vicinity of six to seven years.11 The Judge adopted the Crown’s
5 R v Phan, above n 2, at [5].
6 R v Findley [2013] NZHC 2015.
7 Wallace v Police [2016] NZHC 2659.
8 R v Sharp HC Rotorua CRI-2010-063-004641, 22 July 2011.
9 R v Edmonds [2009] NZCA 54.
10 R v Phan, above n 2, at [16] citing R v Terewi [1999] 3 NZLR 62 (CA).
11 R v Phan, above n 2, at [18].
assessment of the starting point for each of the four charges at 20–24 months’ imprisonment and adopted a global starting point of four years’ imprisonment.
[15]The Judge went on to say:
[20]It is no coincidence that you were the owner of all four of these properties, and in all four of the properties there was a major commercial cannabis operation. The obvious and inevitable inference to be drawn is that this was happening with your full knowledge and consent and encouragement. I have no doubt that your purpose was to share in the profits of the operation. If there was any shred of doubt about that issue then it is resolved by the civil forfeiture action in Australia five years ago in respect of another commercial cannabis operation at a property you owned. I am asked to disregard that by [Ms Phan’s counsel]. He emphasises you were never charged and there is no evidence that you were there at the relevant time but another judge has already determined that that evidence would be relevant and admissible at your trial as propensity evidence and I cannot ignore it.
[16] The Judge drew a distinction between the role of individuals cultivating cannabis from a premises and the criminal syndicates that organise such operations and said:
[22]It is the organisers who are the real criminals and this is flat-out criminal offending for profit without any of the other drivers of crime that we see so often here in the District Court. Those factors are drug addiction, poverty, breakdown of the family, violence and gang influences. None of that is present here, this is simply organised crime for profit. These operations are becoming more prevalent and they are becoming larger, moving from hundreds of plants to thousands of plants, so I have no hesitation in imposing deterrent sentences in those circumstances. Your offending has reached a level where deterrent sentences have to be imposed.
[17]The judge concluded:
[23] It follows that I am not prepared to discount your sentence at all for good character. This is calculated, ongoing, organised crime for profit. The pleas are late, 15 to 16 months after the charges were first laid and the evidence was overwhelming. The maximum discount I am prepared to allow for guilty pleas is 15 per cent. I am of course concerned for your children and your parents. A sentence of imprisonment is going to be very hard on all of them. I do take your personal circumstances into account to the limited extent that I can. I
discount the sentence 15 per cent to recognise those difficulties.
[18] Ultimately, this led the Judge to a sentence of 33 months’ or two years nine months’ imprisonment.
The appeal
[19] Ms Norrie, counsel for Ms Phan, submits that the starting point of four years’ imprisonment was wholly out of proportion to the gravity of Ms Phan’s offending. She also says that additional discounts should have been given for Ms Phan’s cultural and personal factors, previous good character, remorse and prospects of rehabilitation, and the disproportionate impact a sentence of imprisonment will have on Ms Phan’s children.
[20] Overall, Ms Norrie submits that an overall starting point in the range of 24-30 months’ imprisonment was appropriate and that, applying adequate discounts, a short community-based sentence should be substituted.
Cultural report and other additional evidence
[21] In support of the appeal, Ms Phan sought leave to adduce additional evidence, namely: a s 27 cultural report prepared by Professor Chris Gallavin; police records corroborating the s 27 report’s reference to domestic violence; medical letters corroborating ongoing medical conditions; and letters of support from community members to confirm ongoing pro-social support.
[22] The admission on appeal of a cultural report is subject to the same test for admissibility of other new evidence on appeal with the overriding issue being whether it is in the interests of justice to admit it. 12
[23] It is a feature of this case that Ms Phan was previously represented jointly with Mr Nguyen, her then husband. The cultural report and some of the evidence emphasises abuse by Mr Nguyen, and subservience to him. I acknowledge the
12 Poi v R [2020] NZCA 312 at [30]; Simcic v R [2022] NZCA 592 at [43]; Carroll v R [2019] NZCA 172 at [8]; and Clarke v R [2021] NZCA 96 at [14].
practical reality of the difficulty for Ms Phan in obtaining and proffering that material when the two of them were jointly represented.
[24] I accept that it is in the interests of justice to admit the report and the other material.13 Subject to a significant qualification, its admission is not opposed by the Crown, and it provides a further dimension to Ms Phan’s background and circumstances. The qualification is that there are disputed and exculpatory statements in the report, some of which are inconsistent with Ms Phan’s guilty pleas. The Crown says that these untested statements should not be introduced through a cultural report on appeal. In my view the Crown would be unduly prejudiced if these asserted facts were given any weight on appeal when the Crown says (and I accept) that they would have been the subject of a disputed facts hearing if they had been raised at sentencing. Statements inconsistent with Ms Phan’s guilty plea are also inadmissible given that Ms Phan must accept as proved all facts express or implied that are essential to her plea of guilty.14 As I will expand on below, this limits the relevance of the report, but it has some potency nonetheless as demonstrating personal mitigating factors that have some nexus with the offending.
Starting point
[25] Ms Phan has accepted by her guilty pleas that she knew the premises were being used for the cultivation of cannabis. Ms Norrie submitted that Ms Phan’s guilty pleas reflect no more than that she was wilfully blind as to what was happening at her properties. She said it was for the Crown to disprove beyond reasonable doubt that her knowledge was wilful blindness rather than actual knowledge; and if not proven, then Ms Phan is to be given the benefit of the doubt in that regard for the purposes of assessing the starting point under s 24(2) of the Sentencing Act 2002.15
[26] As Ms Phan pleaded guilty, the Court must accept as proved all facts – express or implied – that are essential to a plea of guilty.16 Knowledge is an essential element of an offence under s 12 of the Misuse of Drugs Act 1975. This can be proved by
13 Neither party suggested the appropriate course was to admit the report but refer the matter back to the District Court for re-sentencing: Carroll v R [2019] NZCA 172 at [8].
14 Sentencing Act 2002, s 24(1)(b)
15 Sentencing Act 2002, s 24(2).
16 Sentencing Act, s 24(1)(b).
establishing actual knowledge or wilful blindness. Wilful blindness has been described as a form of conscious self-deception.17 I accept Mr McDonald’s submission that wilful blindness is not something less than “actual knowledge”. It is simply a mechanism by which actual knowledge can be inferred.18 The Crown is not required to disprove wilful blindness where knowledge is required in a sentencing context. That would create a distinction at sentencing that has been rejected for the purposes of liability and one that is far too fine grained to be adopted.
[27] However, it is a different question what inferences may be drawn from the summary of facts as to Ms Phan’s culpability. The Judge drew the inference that the four commercial operations were happening with Ms Phan’s “full knowledge and consent and encouragement” and there was “no doubt that [her] purpose was to share in the profits”.19 The Judge emphasised that “[i]t is the organisers who are the real criminals and this is flat-out criminal offending for profit”.20 He characterised the position of this being “organised crime” for which a deterrent sentence was appropriate.21 It seems to me to be implicit that he inferred that Ms Phan had some degree of role in the organisation.
[28]In my view it can only be inferred from the summary of facts that:
(a)There was a commercial and organised dimension given the number of premises being used for cultivation of cannabis. From Ms Phan’s guilty pleas, she is taken to have knowledge of this, from which she should also be taken to know that there was cultivation of some scale at each of her properties.
(b)Ms Phan benefitted from the drug operation at least from receipt of rental and potentially from the cash and luxury goods found at her house (albeit that there is no detail of this, such as the nature of the goods or where they were found).
17 Don Mathias Misuse of Drugs (online ed, Thomson Reuters) at [1.1.30].
18 Cameron v R [2017] NZSC 89, [2018] 1 NZLR 161 at [77].
19 R v Phan, above n 2, at [20].
20 At [22].
21 At [22].
[29] However, the summary of facts is otherwise silent as to Ms Phan’s role. She did not live at any of the premises, in contrast to the position in R v Edmonds.22 In my view there is insufficient information in the summary of facts from which to infer that Ms Phan encouraged the operations; that she was motivated for the purpose of profit; that she was involved in their organisation; that she knew of the sophistication of the operation inside; or indeed that she was aware of the specific scale of each operation in terms of the number of plants and associated revenue. I do not agree that these inferences are fairly drawn from the established primary facts.23 Nor are those facts implicit in Ms Phan’s guilty pleas.
[30] What makes the offending on each charge more serious is its commercial scale and organised nature, inferred from the fact that there are four grow houses (five including Mr Nguyen’s property). It is this commercial scale that would take the gravity of the offending on each charge into category three of R v Terewi.
[31] In setting a starting point of four years, the Judge applied the proposition in R v Xie and required under s 85 of the Sentencing Act that where a sentence appropriate for the totality of the offending exceeds the maximum penalty for any one offence, cumulative sentencing must be used.24 In Xie the defendant was convicted on six importations of pseudoephedrine. In setting an eight year sentence the High Court Judge had reasoned that if the defendant had brought in all the drugs in one shipment rather than six, he would have been subject to a maximum eight-year sentence.25 The Court of Appeal rejected this approach.26 Instead, it held that “to import drugs on six different occasions is clearly more serious offending than to be engaged in only one importation”.27 Hence cumulative sentencing and a starting point higher than that available for an individual charge was available and in fact necessary to reflect the totality of the offending.28
22 R v Edmonds, above n 9.
23 Pokai v R [2014] NZCA 356 at [31].
24 R v Xie [2007] 2 NZLR 240 (CA).
25 R v Xie HC Auckland CRI -2005-404-243, 16 September 2005 at [22].
26 R v Xie, above n 24, at [14]-[15].
27 At [20].
28 At [19].
[32] Here there are four charges for the four different premises. The overall criminality and specific scale of the operation “as a whole” was key to the Judge’s conclusion that a starting point in excess of the maximum for one offence should be adopted.29 Because of my conclusion on the extent of the appropriate inferences, in my view the Judge was wrong to take four years as a starting point. It is the fact that several properties were used for cannabis cultivation that gives rise to the inference that there was a commercial scale operation at each property and hence increases the gravity of Ms Phan’s offending on each charge. I agree that the total sentence should reflect the fact that permitting four premises to be used for cultivation is more serious than permitting just one. However, to impose a sentence higher than the maximum for one charge to reflect the totality of the offending on the four charges because of the extent of the total operation would be to apply self-referential reasoning. In my view the totality of the offending justified the maximum sentence for one offence but no more.
[33] As a separate but related matter, I observe that having relied on the overall criminality and scale of the operation in setting a starting point,30 the Judge then pointed to factors going to the gravity of the offending as justifying a deterrent approach. It appears that this limited the discounts available to Ms Phan on the basis of personal mitigating factors.31 The Judge’s approach of limiting the impact of mitigating factors because of his view of the seriousness of the offending involves an element of double counting.32
Cultural report as relevant to starting point
[34] There are assertions in the cultural report as to Ms Phan’s actual involvement in the commercial cannabis operations – a key example is that she left the responsibility of renting the properties to her husband. As I said earlier, I reject that the cultural report can properly be used on appeal in this case to provide direct evidence of the circumstances of the actual offence.
29 R v Phan, above n 2, at [19].
30 At [19].
31 At [22]–[23].
32 See Salt v R [2022] NZCA 611 at [45].
[35] Additionally, Ms Norrie also sought to use the cultural report statements as to the abuse Ms Phan had experienced as relevant to setting the starting point. In other cases, such as Philip v R, it has been considered that a psychologist’s report would be necessary for this to have an impact on stage one of the sentencing process.33 I consider the same would be required here. In the absence of a psychologist’s report, I will consider the cultural report at the second stage of the enquiry as relevant to Ms Phan’s personal mitigating factors.
Consideration of Australian forfeiture order
[36] There was no reference to the Australian forfeiture order in the summary of facts to which Ms Phan pleaded guilty. Ms Norrie submitted that it therefore should not have been taken into account in setting a starting point for sentencing after a guilty plea. It is not entirely clear to me that the judge relied upon the forfeiture order in setting starting point as opposed to rejecting a good character discount. The order was referred to in the Judge’s analysis (as opposed to earlier in his judgment when addressing the submissions) after he had assessed the starting point and in the lead up to the Judge’s conclusions on mitigating discounts.34 I accept Ms Norrie’s submission that to the extent that it had an influence on the Judge’s starting point, it should not have done, given that the Court is limited to the facts as disclosed in the summary of facts. 35
Conclusion on starting point
[37] As discussed at [29]-[33], the starting point of four years’ imprisonment was too high and disproportionate to the gravity of the offending. The Judge’s view of the seriousness of the offending was impacted by inferences he was not entitled to draw from the summary of facts.
[38] In my view each offence justified a starting point of 18-20 months’ imprisonment. However, I agree with the Judge that totality requires a cumulative sentence. I consider a starting point of three years’ imprisonment is appropriate. This
33 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571.
34 R v Phan, above n 2, at [20] and [21].
35 Waiapu v R [2016] NZHC 2491, [2016] NZAR 1561 at [14].
takes into account Ms Phan’s greater culpability on account of her permitting four premises to be used but does not involve consideration of inferences that should not be drawn from the summary of facts. I accept that a starting point higher than the maximum sentence for one charge is available when imposing a cumulative sentence,36 but here I do not consider that this is appropriate.
[39] As the focus of cumulative sentences must be on determining the sentence appropriate for the totality of the offending, rather than the individual sentences,37 I do not distribute this sentence between each conviction.
Mitigating circumstances
[40] The District Court Judge accepted the Crown submission that no discount for previous good character was justified. Nor was a discount for remorse and the prospect of rehabilitation appropriate. Although Ms Phan’s guilty plea was late, 15 months after the charges were laid, the Judge allowed a discount of 15 per cent for her plea. The Judge allowed a further 15 per cent discount to account for Ms Phan’s personal circumstances given the impact of her imprisonment on her children and parents.38
Cultural report as relevant to mitigating circumstances
[41] Submissions made to Judge McNaughton were primarily directed at Ms Phan not having knowledge of the premises being used for the cultivation of cannabis, which was rightly rejected as inconsistent with Ms Phan’s guilty pleas. However, the Judge was made aware of the fact that she had been a victim of abuse and of her family circumstances.
[42] I now have the benefit of the cultural report. Ms Norrie submitted that the following three factors identified by Professor Gallavin in his report had an “operative” and “proximate connection” to Ms Phan’s offending:
36 R v Xie, above n 24.
37 At [35] and [38].
38 R v Phan, above n 2, at [23].
(a)Ms Phan’s culturally imbued subservience to her husband. Ms Norrie submits that Ms Phan’s Vietnamese culture has led her to be subservient to males, particularly to her husbands.
(b)Extreme vulnerability on account of Ms Phan being in an abusive relationship. The report highlights ongoing physical, verbal and psychological abuse from her husband, Mr Nguyen.
(c)Compounding pressures associated with Ms Phan’s daughters’ medical conditions. Ms Phan’s four-year-old twin daughters were born prematurely and have serious medical conditions. They have oral aversion which means they require assistance to eat. Moreover, since Ms Phan’s daughter’s autism diagnosis in October 2019, Ms Phan has dedicated her time to her care.
[43] These three factors set out by Professor Gallavin are characterised as directly causative of Ms Phan’s offending in substance because her subservience, preoccupation and position of vulnerability are said to have meant that she delegated the management of the properties to her husband and was too scared to stand up to him. In particular, Ms Norrie sought to rely on statements in the report that Ms Phan left the administration and management of the rentals to Mr Nguyen; that Ms Phan tried to insist on rent being paid other than in cash but was overridden by him; that Ms Phan tried to insist on notice being given to the tenants when the police first approached Mr Nguyen in April 2021; and that she became too busy with her daughter’s medical needs to concentrate on management of the properties.
[44] These asserted facts relate directly to Ms Phan’s knowledge of, or specific role in, the actual offending. Where advanced to suggest Ms Phan had no knowledge of the operations at her premises, they are inconsistent with Ms Phan’s guilty pleas. As I discussed earlier, they are untested statements that should not come in on appeal.
[45] Nonetheless, at a more general level I accept that Ms Phan’s position of extreme vulnerability as a victim of significant family violence and her subservience has some relevance as background factors that have some causative contribution to
her offending. For this purpose, I do not rely on the statements that I consider to be inadmissible for a direct or proximate contribution to her offending. Rather I consider that Ms Phan’s vulnerability provides some explanation for why she came to offend and demonstrates a relevant nexus with the offending for sentencing purposes.39 However, in my view this justifies only a small discount of five per cent.
Remorse and prospects of rehabilitation
[46] Ms Norrie submitted that Ms Phan should be entitled to a discount of 10 per cent on account of her remorse40 and prospects of rehabilitation. She said that Ms Phan “remains appalled by her involvement in serious drug offending”. The subsequent proceedings are said to have had a “significant and detrimental impact” on Ms Phan’s wellbeing.
[47] She submitted that Ms Phan is deeply engaged in her community, her children’s school and her businesses. She therefore has the “means to engage with the support she needs to continue her recovery from abuse and to support her children”.
[48] The supporting letters provided by the appellant do show that Ms Phan is well supported. I accept that she has good prospects of rehabilitation. Obviously, these letters and the report were not available to the District Court Judge, although the tenor of this part of his judgment suggests that his view of the need for deterrence was a factor that would override this as a mitigating factor.
[49] The Crown emphasised that comments in the cultural report as to Ms Phan’s remorse are in contradiction to her pre-sentence report when she is reported as giving evasive answers and focussing on distancing herself from responsibility for the offending (particularly as to lack of knowledge). In my view the statements as to remorse in the cultural report are more reflective of Ms Phan coming to terms with the consequences of her offending, particularly when seen in light of the prior report.
[50] I therefore agree with the Crown that no further discount is appropriate for remorse or for Ms Phan’s prospects of rehabilitation.
39 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109].
40 Sentencing Act, s 9(2)(f).
Personal circumstances
[51] The Court is required to take the circumstances of an offender into account if they would render an otherwise appropriate sentence disproportionately severe.41 Ms Phan submits that the Court is obliged, by virtue of the United Nations Convention on the Rights of the Child 1989, to consider the interests of the child as a primary consideration. Ms Norrie cites Ransom v R,42 R v Porter-Riley,43 Zheng v R,44 R v Ralph45 and R v Lyon46 where significant discounts were given to reflect the need for the defendant to care for dependent children.
[52] The fact that Ms Phan has four year old twins with complex medical needs is highly significant. Putting aside their medical needs, the twins are at an age where they are very dependent. Although Ms Phan’s parents apparently can assist to a limited extent with the care of the children when in New Zealand, they do not speak English. The cultural report suggested the children would need to go into care. Ms Phan’s other children from her prior relationship are aged 13 and 19. The younger of these children will also be severely affected. These factors also increase disproportionately the severity on Ms Phan of her sentence.
[53] Judge McNaughton expressed the 15 per cent discount for this aspect as a provision “to the limited extent that I can”.47 In my view a 15 per cent discount to take account of these difficult personal consequences was insufficient and appears to have been driven by the significance the District Court placed on deterrence. A review of cases provided by the appellant suggests that discounts of up to 20-21 per cent can be given. The maximum discount of 20 per cent is appropriate here.
41 Sentencing Act, s 8(h).
42 Ransom v R [2010] NZCA 390, (2010) 25 CRNZ 163.
43 R v Porter-Riley HC Auckland CRI-2010-092-14703, 12 April 2011.
44 Zheng v R [2015] NZCA 451.
45 R v Ralph [2018] NZHC 794.
46 R v Lyon [2018] NZHC 1434.
47 R v Phan, above n 2, at [23].
Good character
[54] Ms Norrie submitted that the Judge erred in failing to allow a discount for Ms Phan’s good character. 48 Ms Norrie noted that Ms Phan has never been before the Court for criminal charges and that to recognise this factor, a discount of five per cent would be appropriate. She also pointed to the supportive letters admitted on appeal.
[55] I accept the Crown’s submission that the letters are in respect of the appellant’s relationship rather than speaking to her positive character or contribution to society. They do not found a sufficient basis for a good character discount.
[56] The Judge referred to the Australian forfeiture order as undermining Ms Phan’s good character. Mr McDonald submitted that the fact that a similar cannabis cultivation had been found at Ms Phan’s house in Australia on the basis of the forfeiture justifies no discount being granted. The appropriate inferences that can be drawn from the forfeiture order are difficult to assess without investigation of the facts around it. Ms Norrie referred to statements made by Ms Phan to Dr Gallivan explaining away her connection to this operation. Again, I do not consider it appropriate to have regard to these untested statements on appeal to the extent the Court is being asked to consider facts about Ms Phan’s actual knowledge about this other potential offending.
[57] On the issue of a discount, I do not consider I am justified in disturbing the District Court assessment of this. Overall I consider the total discount I have applied for personal mitigating factors is appropriate without adding a further five per cent for good character.
Conclusion
[58] In my view the sentence of two years and nine months’ imprisonment was manifestly excessive. My adjusted starting point is a term of three years’ imprisonment. I apply discounts of 15 per cent (guilty plea), 20 per cent (personal
48 R v Findlay [2007] NZCA 553 at [91].
circumstances) and 5 per cent (mitigating background factors). The end result is a term of imprisonment of between 21-22 months.
Form of sentence
[59] The sentence is at a level where options other than imprisonment are possible. The appellant submits that a sentence of imprisonment would be disproportionately severe. She relies on the caselaw referred to above at [51] and the United Nations Convention on the Rights of the Child to say that a community-based sentence is appropriate in the interests of the children.
[60] The pre-sentence report recommended a community sentence. I accept that Ms Phan is at a low risk of reoffending. I agree that a sentence of imprisonment would be disproportionately severe both on Ms Phan and her children. In my view a sentence of home detention would allow Ms Phan to continue acting as the primary caregiver for her children. It would still appropriately account for Ms Phan’s overall level of culpability and her personal circumstances. Home detention rather than a lesser form of community-based sentence would also give due regard to the principle of deterrence relative to a less restrictive form of sentence and when a term of imprisonment would otherwise be imposed.
[61] The Court must not sentence an offender to home detention unless it is satisfied of the matters contained in s 80A(2)(a) of the Sentencing Act. The pre-sentence report, dated 14 December 2022, confirmed that the address offered would be suitable for an electronically monitored sentence. The report also confirms that Ms Phan has signed the Offender Agreement, acknowledging her understanding of the conditions of an electronically monitored sentence. I am therefore satisfied that the criteria in s 80A(2)(a) are met, however, given the length of time since the report, this is subject to Corrections re-confirming the suitability of the proposed address.
[62] Ms Phan is sentenced to 11 months of electronically monitored home detention to the address specified in the Provision of Advice to Courts report. The sentence of home detention is subject to the standard conditions set out in s 80C(2) of the Sentencing Act. As indicated above, this sentence of home detention is also subject to Corrections re-confirming the suitability of the proposed address. I do not make any
additional discount arising from Ms Phan’s existing bail conditions. None was sought in submissions and she has been under a night-time curfew only.49
[63] Ms Phan is to surrender herself forthwith to the Department of Corrections for the purposes of commencing her sentence of home detention. Leave is reserved to the parties and to the Department of Corrections to seek further or other orders to give effect to the sentence.
Anderson J
49 R v Tamatea [2012] NCEA 443
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14
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