Van Nguyen v The Queen
[2016] NZCA 18
•18 February 2016 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA257/2015 [2016] NZCA 18 |
| BETWEEN | KHOI VAN NGUYEN |
| AND | THE QUEEN |
| Hearing: | 10 February 2016 |
Court: | Miller, Fogarty and Toogood JJ |
Counsel: | P J Kaye for Applicant |
Judgment: | 18 February 2016 at 3.00 pm |
JUDGMENT OF THE COURT
The application for an extension of time to appeal is declined.
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REASONS OF THE COURT
(Given by Miller J)
Mr Nguyen seeks to appeal out of time his sentence of imprisonment for importing methamphetamine. Sentence was passed as long ago as 12 February 2010.
Mr Nguyen, who is of Vietnamese origin, arrived in New Zealand in 1999 and subsequently became a citizen. At some time he involved himself in the business of importing methamphetamine. He was arrested on 12 August 2008 and later pleaded guilty to four counts of importing that drug and one representative count of supplying it. The quantity involved was between 3.5 and 4 kg. When arrested Mr Nguyen was found in possession of 4.5 g of methamphetamine in five separate 1 g zip lock bags.
The third importation had involved 1.7 kg of methamphetamine, and at the time of sentencing a co-offender who received the drugs in that case had already been sentenced. The starting point adopted in that co-offender’s case was 16 years.[1]
[1]R v Nguyen HC Auckland CRI-2008-092-2791, 14 November 2008.
Mr Nguyen was sentenced by reference to the starting point adopted for the co-offender, who was described as a catcher or courier.[2] The sentencing Judge, Harrison J, took the view that Mr Nguyen was considerably higher in the chain of responsibility. Although not the mastermind, he was a senior member of the drug ring or a prime mover. The Judge accordingly adopted a starting point for the third importation of 20 years’ imprisonment and adjusted it upward for the other three importations and Mr Nguyen’s dealing activities. The resulting starting point was 24 years. From that the Judge gave what Mr Kaye properly recognised were generous discounts for guilty pleas and other personal circumstances, including the impact on Mr Nguyen’s family. The end sentence was 16 years. He imposed a minimum period of imprisonment of eight years.
[2]R v Nguyen HC Auckland CRI-2009-004-13300, 12 February 2010.
We begin with the question of extending time. Extensions are not granted automatically, even where an appeal is arguable. Indeed, as the Court pointed out in R v Lee, it is not necessary that the Court consider the substantive merits in detail.[3]
[3]R v Lee [2006] 3 NZLR 42 (CA) at [106]. See too Butcher v R [2015] NZCA 102 at [7].
Mr Nguyen’s explanation for delay, given in an affidavit, is that his English is very poor and he had a very limited understanding of the Court process. He did not understand that he could appeal. After about three months in prison he was told that he could appeal and he contacted his counsel at sentencing, Mr Chambers, who declined to act for him. Mr Nguyen explains that he had no other legal contact at that stage and he was in segregation, where he remained until recently, and was unable to make enquiries about an alternative lawyer. He thought that because Mr Chambers had declined to act he could take the matter no further. Not until 2015 did he understand that he could seek legal aid and pursue an appeal.
Mr Nguyen was not cross-examined on this account, but as Ms Johnston submitted there is reason for scepticism. It is inherently unlikely that even with his English difficulties Mr Nguyen could spend so long in the prison system without learning that he had a right of appeal and gaining access to a lawyer to do something about it. We were provided with a letter written by Mr Chambers in 2012 in which he advised Mr Nguyen that an appeal could be brought, although it is fair to say that the letter was not encouraging.
So far as the merits of the appeal are concerned, Mr Kaye’s short point was that the starting point was too high relative to the co-offender. As Ms Johnston submitted, the offending falls squarely within Fatu importation band four.[4] Indeed, three of the four importations each fell within that band. This was major commercial offending. The starting point of 16 years chosen for the co-offender was upheld by this Court on appeal,[5] and we consider that the increase of four years for Mr Nguyen on the same offence was justified having regard to his more senior role. A further increase for the other offending was also justified. From a totality perspective the starting point is not out of line with comparable cases.[6] And finally, it is the end sentence that matters. It was reached after the application of generous discounts. For all of these reasons we do not consider that it is seriously arguable that the sentence imposed on Mr Nguyen was manifestly excessive.
[4]R v Fatu [2006] 2 NZLR 72 (CA).
[5]R v Nguyen [2009] NZCA 239.
[6]R v Chen [2010] NZCA 552; and R v Wong [2009] NZCA 332.
The application for an extension of time to appeal is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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