R v Nguyen HC Auckland CRI 2009-090-12932

[2010] NZHC 1217

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-090-12932

THE QUEEN

v

LAM TUNG NGUYEN

Charge:          Cultivating cannabis

Plea:               Guilty

Appearances: Charlotte Leslie for Crown

John Corby for Prisoner

Sentenced:     6 July 2010

2½ years imprisonment

SENTENCING NOTES OF HARRISON J

SOLICITORS

Meredith Connell (Auckland) for Crown

John Corby (Auckland) for Prisoner

R V NGUYEN HC AK CRI-2009-090-12932  6 July 2010

Introduction

[1]      Mr Nguyen, you have pleaded guilty in the District Court at Waitakere to one charge of cultivating cannabis.  You are aware that the maximum penalty that can be imposed is seven years imprisonment.  I understand that you have been in custody since early December 2009.   That will be taken into account when you serve the sentence of imprisonment which must be imposed today.

Facts

[2]      The length of the term of imprisonment will be dictated by the facts.  There is no real dispute about them.

[3]      In early December 2009 the police executed a search warrant at a property in Henderson.    You  were  the  sole  occupier.    That  fact  will  become  particularly important at a later stage.

[4]      Inside  the  property  the  police  found  a  sophisticated  cannabis  growing operation.  Four rooms of the house had been converted into growing areas.  Each room had a full heating and lighting system controlled by an automatic timer.  Also the walls were lined with plastic material to maintain high humidity.   There were large carbon filter units ducted to the outside to eliminate the smell of cannabis plants.

[5]      The police found a total of 168 plants in the four rooms.  The largest area was in what they call growing room "A" where there were 62 plants ranging from 8-

22 cm.  In the other three rooms the plants were healthy.  They were budding and they  were  close  to  being  ready  for  harvest.    All  this  activity  is  shown  very graphically in the photographs produced by the Crown today.

[6]      The police have used a rough method to estimate the value of the crop.  They work out that the 168 plants were likely to yield 9½ kilograms of dried cannabis material per harvest.  On the basis of four harvests a year they say the total annual yield would be 37½ kilograms.  Using a known street value the police estimate that

the annual income to be obtained from the crop would be over $300,000.  I accept, Mr Nguyen, that that is a rough and possibly theoretical measure.  But, even if it is discounted by a third, it would have yielded an average return of over $200,000 for you.  That potential return shows the scale of your commercial activity.

Starting Point

[7]      Against that background I must fix what is called the starting point for your sentence.  The starting point is the length of imprisonment which is appropriate to recognise the offending by itself before I take into account any personal features.

[8]      Ms Leslie for the Crown submits that the appropriate starting point is at least four years imprisonment.  Mr Corby for you says that a lower starting point should be adopted.   While he accepts that you were the sole occupier of the property, he says that you were not the primary driver.   He says that you were set up in this operation by somebody else.  He says that you were manipulated and used by others. He admits that there is no proof to this effect, but that is his impression.

[9]      However, I agree with Ms Leslie.  If there were other people involved, and that is likely, you were still a principal party.   You were the sole occupier of the premises.  You controlled everything that happened there.  You were able to arrange for  the  cultivation  of  the  plants.    Without  doubt,  you  were  the  primary person responsible for looking after them.  On that basis you are treated as a principal party and you must take the primary responsibility for what has happened.

[10]     Ms Leslie  has  referred  me  to  decisions  in  the  Court  of  Appeal  on  the appropriate sentences for this type of offending.  Also from my own experience I am familiar with the general levels.  I am in no doubt, Mr Nguyen, that a starting point of four years imprisonment is the right one.

Mitigation

[11]     Having set that starting point, I must now take into account any mitigating or favourable features.  First, Mr Nguyen, there is your plea of guilty.  That is a sign that  you  are  sorry.    You  are  entitled  to  a  substantial  credit  for  it.    Second, Mr Nguyen, you have been of good character while you have lived in New Zealand since 1998.   You are now 42 years of age and of Vietnamese descent.   You will inevitably be deported from New Zealand once you complete a prison sentence.

[12]     Taking those two factors into account, I am satisfied that you should have a discount from the starting point of four years of 18 months or one-and-a-half years imprisonment.  The end sentence of two-and-a-half years imprisonment will reflect a penalty for your commercial activity which you always knew was illegal but also give you a credit for your guilty plea and your good character.

[13]   You are sentenced to a term of imprisonment of two-and-a-half years imprisonment.  An order is made for forfeiture of any goods found at the premises and for destruction of the cannabis plants.

[14]     Mr Nguyen, you have committed a serious offence against the people of

New Zealand.   You must now pay the price.   But I trust that you are able to re- establish your life when you return to Vietnam.  Please stand down.

Rhys Harrison J