Truong v The King - [2023] NZSC 119

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 44/2023
[2023] NZSC 119

BETWEEN	NGOC HONG TRUONG Applicant
AND	THE KING Respondent

Court:	Glazebrook, Williams and Kós JJ
Counsel:	J N Olsen for Applicant M R L Davie for Respondent
Judgment:	4 September 2023

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Background

The applicant, Ms Truong, is a Vietnamese national with permanent residence status in New Zealand. She has two New Zealand-born children who are New Zealand citizens. Along with her husband she pleaded guilty to cultivating cannabis and theft of electricity.[1] She was sentenced to five months’ community detention, eight months’ supervision and ordered to pay reparations in relation to the electricity.[2]
[1]Mr Hoang, the applicant’s husband, is also a Vietnamese national. He was living unlawfully in this country at the time and, after serving a sentence of home detention, was deported to Vietnam.
[2]R v Truong [2019] NZDC 26677 (Judge Bergseng).
Just over three years later she received a letter from Immigration New Zealand. The letter advised that, due to her offending, she was liable to deportation pursuant to s 161(1)(b) of the Immigration Act 2009 and might receive a formal deportation liability notice (DLN). As the name suggests, a DLN would render Ms Truong liable to deportation at the direction of Immigration New Zealand. It appears that Ms Truong would have received her pre-DLN letter sooner but for the fact that she was suffering from significant mental health issues due to the enforced separation from her husband, the fact that she was pregnant at the time and the stress of the criminal proceedings.
On receipt of the letter, Ms Truong brought a convictions and sentence appeal to the Court of Appeal over three years out of time.[3] The Crown did not oppose the application in that Court to bring the appeal out of time, or the admission of affidavits in support of the appeal setting out relevant background.
[3]Truong v R [2023] NZCA 97 (Gilbert, Ellis and Davison JJ).
Ms Truong sought discharge without conviction pursuant to s 106 of the Sentencing Act 2002. The only issue on appeal was whether the applicant’s exposure to the possibility of deportation (a risk not appreciated at the time of her guilty plea) might have rendered the consequences of conviction out of all proportion to the gravity of the offence in terms of s 107 of the Sentencing Act.

Court of Appeal decision

The Court of Appeal found that the risk the applicant might be deported pursuant to s 161(1)(b) of the Immigration Act was not a consequence out of all proportion to the gravity of her offending.[4] The Court came to this view primarily because the Immigration Act has its own procedures for the consideration of the circumstances of a potential deportee both prior to the issue of a DLN and after a notice is given. At the first stage, those at risk of…

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 The King

Details

AGLC: Truong v The King [2023] NZSC 119
Case: [2023] NZSC 119
Decision Date: 4 September 2023

CaseChat Overview and Summary

The Supreme Court of New Zealand heard an application for leave to appeal brought by Ngoc Hong Truong against The King. Truong, a Vietnamese national with permanent residency in New Zealand, was sentenced to five months' community detention, eight months' supervision, and ordered to pay reparations for cultivating cannabis and theft of electricity. Following her conviction, she received a letter from Immigration New Zealand stating she was liable for deportation under the Immigration Act 2009 due to her criminal conviction. Truong appealed her sentence, arguing that the risk of deportation made the consequences of her conviction disproportionate to the gravity of her offence. The Court of Appeal dismissed the appeal, finding that the risk of deportation was not out of proportion to the gravity of her offending due to the statutory processes in place for considering deportation, including the possibility of cancellation or suspension of liability for deportation.

The legal issue before the Supreme Court was whether the Court of Appeal erred in its application of section 107 of the Sentencing Act 2002 when it determined that the risk of deportation did not render the consequences of conviction disproportionate to the gravity of the offence. Truong argued that the Court of Appeal failed to properly apply the'real and appreciable risk' test. The Crown contended that the Court of Appeal correctly applied the test and found that the risk of deportation was not significant enough to meet the statutory requirement. The Supreme Court considered the evidence and concluded that while the Court of Appeal might have reached a different outcome with different facts, it did not misapply the 'real and appreciable risk' test. The court found that the offending was moderately serious, and the risk of deportation, while significant, was not out of proportion to the gravity of the offence given the statutory processes available.

The Supreme Court determined that no issue of principle arose in the case and saw no risk of miscarriage if the application for leave to appeal was dismissed. The Court held that the Court of Appeal correctly found that the risk of deportation was not so significant as to establish that the consequences of conviction were out of all proportion to the gravity of the offence. The Court noted that the Court of Appeal's conclusion that the consequences were not disproportionate was based on factual assessments and the statutory processes in place to consider deportation. As a result, the Supreme Court dismissed the application for leave to appeal.

Orders