NGUYEN v R [2020] NZCA 402

NGUYEN v R [2020] NZCA 402 [10 September 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA297/2020[2020] NZCA 402BETWEEN CHARLIE NGUYENAppellantAND THE QUEENRespondentCourt: Courtney, Wylie and Muir JJCounsel: M J Dyhrberg QC for AppellantZ A Fuhr for RespondentJudgment:(On the papers)10 September 2020 at 10 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)Introduction[1] In May 2019, following a sentence indication given by Judge Harvey in theDistrict Court at Papakura,1 Charlie Nguyen pleaded guilty to possessing, for thepurpose of supply, methamphetamine, cocaine, ecstasy and ephedrine. Judge Harvey1 R v Nguyen DC Papakura CRI 2018-092-6997, 28 May 2019 [Sentencing indication].imposed a sentence of three years and nine months' imprisonment.2 Jagose Jdismissed Mr Nguyen's appeal against that sentence.3[2] Mr Nguyen has applied for leave to bring a second appeal on the ground that amiscarriage of justice may occur if leave is not granted. Mr Nguyen wishes to arguethat the lower Courts failed to correctly apply Zhang v R, and to adequately recognisethe mitigating factors through appropriate discounts. 4[3] This Court must decline leave for a second appeal unless it is satisfied thateither the appeal involves a matter of general or public importance or that amiscarriage of justice may have occurred or may occur unless the appeal is heard.5The threshold for meeting these prerequisites is high.6Sentencing in the District Court[4] The sentence indication was given on the basis that Mr Nguyen had been foundin possession of:(a) 27.9 grams of methamphetamine;(b) 12.5 grams of cocaine;(c) 383 tablets containing MDMA (ecstasy);(d) 888 grams of ephedrine; and(e) $34,861.60 cash.[5] In addition, the police found new empty resealable plastic bags and two sets ofelectronic scales.2 R v Nguyen [2020] NZDC 3809 [Sentencing decision].3 Nguyen v R [2020] NZHC 910 [High Court judgment].4 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.5 Criminal Procedure Act 2011, s 253(3).6 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].[6] The Judge treated the methamphetamine offending as the lead charge andplaced it in band 2 of R v Fatu, which would attract a starting point between three andnine years.7 Taking into account the quantity and obvious elements of commercialitythe Judge took a four-year starting point and uplifted it by two years to reflect the othercharges. The Judge indicated that a 25 per cent discount would be applied in the eventof a guilty plea, which would result in an end sentence of four years and six months'imprisonment.[7] Mr Nguyen pleaded guilty to all of the charges on 28 May 2019, the same dayas the sentence indication. However, sentencing did not take place until the followingyear, on 4 March 2020. One of the reasons for the delay in sentencing was so thatMr Nguyen could undertake treatment for drug and gambling addiction. By that pointthis Court had issued its revised methamphetamine sentencing guidelines in Zhang vR. The Judge acknowledged the application of Zhang but did not consider that it oughtto lead to a change in the starting point. He did however recognise Mr Nguyen'saddiction problems by allowing a nine-month (17 per cent) discount, resulting in theend sentence of three years and nine months.Appeal to the High Court[8] The High Court was required to allow the appeal only if satisfied that there wasan error in the sentence and that a different sentence should be imposed.8 Recognisingthe potential effect of Zhang, the Judge noted that his approach would not focus on asearch for error but rather would involve an assessment of the appropriate outcomewhen considered against the new guidelines.9[9] Looking at the obvious commerciality of Mr Nguyen's operation and thequantity, the Judge considered that the four-year starting point, even under the Zhangrevised band 2 (starting point between two and nine years' imprisonment) was withinrange, if stern. He took the same view of the uplift for the other offending describing7 R v Fatu [2006] 2 NZLR 72 (CA) at [34].8 Criminal Procedure Act, s 250(2).9 High Court judgment, above n 3, at [10] citing Miller v R [2020] NZCA 131 at [4]; Su v R [2020]NZCA 128 at [7]; and Royal v R [2020] NZCA 129 at [30].Mr Nguyen's overall offending as a "relatively small-scale but nonetheless profitablecommercial Class A and B drugs operation".10[10] The Judge then turned to the issue of discounts for Mr Nguyen's personalmitigating factors. Although, self-evidently, he accepted the fact of Mr Nguyen'saddictions, the Judge was not inclined to accept Mr Nguyen's assertions at face value.Nor did he accept the opinion tendered by Mr Moore, a support worker at OdysseyHouse, that Mr Nguyen was suffering from major depression and a general anxietydisorder. He did, however, accept the support worker's evidence regarding thecounselling that he had undertaken with Mr Nguyen. He placed no weight on personalinformation offered by Mr Nguyen's family. The Judge's conclusion was that thediscount given in the District Court to reflect Mr Nguyen's efforts at rehabilitationimplicitly took into account his character and his remorse and was generous.[11] The Judge rejected the possibility of any further discount to reflectMr Nguyen's 14 months on restrictive bail conditions (a night curfew at domesticresidences), noting that the length of time on bail was in large part to accommodatehis rehabilitative efforts and necessarily accommodated by the nine-month discount.Application for leave[12] The focus of the proposed appeal would be on the approach taken in the lowerCourts to Mr Nguyen's addiction. Ms Dyhrberg, for Mr Nguyen, submits that bothCourts failed to properly address the interface between Mr Nguyen's addiction and hisculpability. It was clear that both Judges accepted that Mr Nguyen had significantaddictions because his rehabilitation had been facilitated by favourable bail conditionsand recognised by the discount given. Ms Dyhrberg wishes to demonstrate that,against that background, the High Court Judge was in error in then rejecting thepossibility of a discount for the addiction as recognised in Zhang. This error was theresult in part of the Judge's refusal to put weight on Mr Moore's report. Moreover,because it did not seem that the fact of addiction was ever in dispute for the purposesof s 24(2) of the Sentencing Act 2002, it was for the Crown to disprove the role ofaddiction in the offending under s 24(2)(c). She was also critical about the10 At [15].assumptions that both Judges made about the money found on Mr Nguyen's person,given that there was no evidence about its provenance .[13] It is clear from Zhang that the assertion of addiction as a causative factor incommercial dealing needs to be approached with some care. Non-causative addictionwill generally have little weight.11 The Court accepted that the effect of addictioncould coexist with commercial dealing. However, the Court was also clear that anydiscount for addiction should be based on "persuasive evidence, as opposed to mereself-reporting".12[14] We do not think it is arguable that the Judge erred in his assessment of theevidence presented to him. Mr Moore's report is at a level of generality such that theJudge was entitled to find it did not provide adequate evidence on which he couldconclude that Mr Nguyen's offending was causatively connected to his addiction.[15] We do not see that there is any risk of miscarriage arising in this case. Theapplication for leave to bring a second appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent11 Zhang, above n 4, at [147].12 Zhang at [148].