Van Nguyen v The Queen - [2016] NZCA 18

IN THE COURT OF APPEAL OF NEW ZEALAND

CA257/2015
[2016] NZCA 18

BETWEEN	KHOI VAN NGUYEN Applicant
AND	THE QUEEN Respondent

Hearing:	10 February 2016
Court:	Miller, Fogarty and Toogood JJ
Counsel:	P J Kaye for Applicant Z R Johnston for Respondent
Judgment:	18 February 2016 at 3.00 pm

JUDGMENT OF THE COURT

The application for an extension of time to appeal is declined.

____________________________________________________________________

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,…

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 Van Nguyen v The Queen

Details

AGLC: Van Nguyen v The Queen [2016] NZCA 18
Case: [2016] NZCA 18
Decision Date: 18 February 2016 at 3.00 pm

CaseChat Overview and Summary

In the appeal brought by Khoi Van Nguyen against the Crown, the applicant sought to appeal out of time his sentence for the importation of methamphetamine. The appeal was heard on 10 February 2016, before Miller, Fogarty, and Toogood JJ. Nguyen, who arrived in New Zealand in 1999 and became a citizen, was arrested on 8 August 2008 and pleaded guilty to four counts of importing methamphetamine and one count of supplying it. The court sentenced him to 16 years in prison with a minimum of eight years. Nguyen sought an extension of time to appeal his sentence on the basis that his English was very poor, and he did not understand that he had a right to appeal. The Crown argued that the appeal was not seriously arguable and that the sentence was justified.

The court considered the question of extending time, noting that extensions are not granted automatically, even if an appeal is arguable. The court also considered the merits of the appeal, finding that the starting point for the sentence was appropriate and that the increase for Nguyen's more senior role was justified. The court further found that the end sentence, after the application of discounts, was not manifestly excessive. The court was sceptical of Nguyen's explanation for the delay in appealing, noting that it was unlikely that he could have spent so long in the prison system without learning of his right to appeal and gaining access to a lawyer.

The court declined the application for an extension of time to appeal, finding that the appeal was not seriously arguable. The court found that the sentence imposed on Nguyen was justified and not manifestly excessive. Nguyen's application for an extension of time to appeal his sentence was declined.

This case highlights the importance of understanding one's rights and the legal process, particularly for non-native English speakers. It also underscores the court's reluctance to grant extensions of time to appeal, even if the appeal is arguable. Finally, it reinforces the principle that the end sentence, after the application of discounts, is what matters most in sentencing.

Orders