Truong v R - [2023] NZCA 97

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA428/2022
[2023] NZCA 97

BETWEEN	NGOC HONG TRUONG Appellant
AND	THE KING Respondent

Hearing:	21 February 2023
Court:	Gilbert, Ellis and Davison JJ
Counsel:	J C Harder and N J Wright for Appellant M R L Davie for Respondent
Judgment:	5 April 2023 at 3 pm

JUDGMENT OF THE COURT

AThe application for an extension of time is granted.
BThe application to file fresh evidence on appeal is granted.
CThe appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Davison J)

Ngoc Truong (the appellant) applies out of time for leave to appeal her convictions and sentence. She seeks to have her convictions quashed, and to be discharged without conviction pursuant to s 106 of the Sentencing Act 2002.
On 14 February 2019 the appellant pleaded guilty to one charge of cultivating cannabis[1] and one charge of theft of electricity.[2] Convictions were entered on both charges. The appellant was sentenced on 11 April 2019 in the District Court at Manukau to five months’ community detention, eight months’ supervision, and ordered to pay reparation of $2532.55.[3]
[1]Misuse of Drugs Act 1975, s 9(1).
[2]Crimes Act 1961, ss 219(1)(a) and 223(b).
[3]R v Truong [2019] NZDC 26677 [Sentencing decision]. At [15] the sentencing notes refer to a reparation order for $5232.55, but the Court Trial Record sheet signed by Judge Bergseng records the reparation as $2532.55.
On 27 June 2022 the appellant received a deportation liability notice from Immigration New Zealand (INZ). She says that when sentenced in April 2019 she did not appreciate that the entering of convictions would trigger liability for deportation pursuant to s 161 of the Immigration Act 2009, and that she was not advised by her counsel that she could apply to be discharged without conviction.
This appeal is brought over three years out of time. The Crown accepts that the appellant has explained the reasons for her delay in bringing her appeal which relate to her ill health, and it does not oppose the granting of an extension of time to appeal. We are satisfied by the appellant’s explanation for the delay, and that it is appropriate to grant an extension of time for the filing of her appeal. The Crown also does not oppose admission of the affidavits filed by the appellant in support of her appeal and seeks to admit fresh evidence on the appeal itself. We also grant leave to admit the affidavits filed by the appellant and respondent as fresh evidence for the appeal.

Background

The offending

The appellant’s offending was committed over a period of 11 months between February and December 2017. She and her husband, Mr Hoang, were jointly charged. Mr Hoang pleaded guilty and was sentenced to nine months’ home detention on 18 January 2019.[4] Sentencing the appellant on 11 April 2019 Judge Bergseng said: [5]
[2] The background to this offending is that in 2017 an investigation was undertaken by…

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 Truong v R

Details

AGLC: Truong v R [2023] NZCA 97
Case: [2023] NZCA 97
Decision Date: 5 April 2023 at 3 pm

CaseChat Overview and Summary

The case of Ngoc Hong Truong v R was heard by the Court of Appeal of New Zealand. The appellant, Ngoc Hong Truong, sought to appeal her convictions and sentence for cultivating cannabis and theft of electricity. The appeal was brought out of time, and the appellant also sought to file fresh evidence. The central issue was whether the consequences of her convictions, which triggered her liability for deportation, were out of all proportion to the gravity of her offending. The court considered the four-step process for discharging an offender without conviction under the Sentencing Act. The court found that the appellant's offending was moderately serious, and the consequences of conviction, while potentially adverse, were not out of all proportion to the gravity of the offence. The court held that the appellant had failed to demonstrate that the consequences of conviction were out of all proportion to the gravity of the offence, and the appeal was dismissed. The application for an extension of time was granted, and the application to file fresh evidence on appeal was also granted.

Orders