NGUYEN v NEW ZEALAND POLICE [2023] NZHC 1045

NGUYEN v NEW ZEALAND POLICE [2023] NZHC 1045 [4 May 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-000059[2023] NZHC 1045BETWEEN THANH HUY NGUYENAppellantAND NEW ZEALAND POLICERespondentHearing: 2 May 2023Appearances: C S Fredric for AppellantT C T Riley for RespondentJudgment: 4 May 2023JUDGMENT OF VAN BOHEMEN J[Appeal against sentence]This judgment was delivered by me on 4 May 2023 at 10:00 amRegistrar/Deputy Registrar..Counsel/Solicitors:C S Fredric, AucklandCrown Solicitor, Manukau[1] Thanh Huy Nguyen appeals the sentence of one year and nine months'imprisonment (21 months' imprisonment) imposed by Judge D J McNaughton in theDistrict Court at Manukau1 after Mr Nguyen pleaded guilty to one charge each for thecultivation of cannabis and possession of cannabis for supply.2[2] Mr Nguyen appeals on three grounds. He says:(a) the discount given for his personal mitigating factors, previous goodcharacter and time on electronically monitored (EM) bail wasinsufficient;(b) a sentence of home imprisonment should have been imposed giventhere was a suitable address available and Mr Nguyen had been on EMbail for six months without issue; and(c) the sentencing Judge focused only on deterrence, to the exclusion ofsentencings' other purposes, amounting to an error of law.[3] The Police oppose the appeal.[4] Pending the outcome of his appeal, Mr Nguyen was granted EM bail on thesame conditions that had applied before sentence.Facts[5] Mr Nguyen is a 36-year-old Vietnamese national. He arrived in New Zealandin 2019 on a tourist visa after failing to obtain a working visa. On arrival, he workedas a painter until the COVID-19 pandemic made that work harder to come by.Mr Nguyen then turned to cannabis cultivation. By that time, his tourist visa hadexpired.1 Police v Nguyen [2023] NZDC 2279.2 Misuse of Drugs Act 1975, ss 9(1) and s 6(1)(f). Those offences provide for maximum penaltiesof seven and eight years imprisonment respectively.[6] For a considerable period of time, Mr Nguyen and an unknown femaleassociate cultivated cannabis at a residential dwelling in Pukekohe. On 17 June 2022,Police executed a search warrant of the dwelling and found a large cannabis operation.Excluding the toilet and a small area of bedding near the kitchen bench, the entiredwelling had been used for the cultivation operation. Four separate rooms were foundto contain approximately 100 healthy mature cannabis plants, most of which wereheavily budded and ready for harvest. Another room contained about 34 plants,ranging in size from seedlings to medium sized plants nearing maturity. An incubationbox was found to contain a further 16 small seedlings and, in a kitchen cupboard, alarge self-sealing plastic bag was found to hold an estimated 100 grams of cannabishead. The power to the house had been diverted at the meters, and in a dangerousstate.[7] The dwelling was set up like other commercial-scale cannabis operations. Thebathroom was used for watering, with a water pump and piping leading to the rooms.Large carbon filters were erected in all the rooms where cannabis was growing.A concealed power transformer, which provided power to several houses on the street,was used to divert power to the house, a typical measure used to lower costs anddisguise the large amounts of electricity used.[8] Mr Nguyen was observed driving in the vicinity of the address and was stoppedby Police. He was arrested and his vehicle was searched. Police located keys whichfitted the padlock which had been used to lock the gates at the property, and a keywhich fitted the door.[9] Mr Nguyen was charged with cultivation of cannabis and possession ofcannabis for supply. After receiving a sentencing indication from JudgeMcNaughton,3 Mr Nguyen pleaded guilty to both charges. He was sentenced to21 months' imprisonment, which is the sentence he now appeals.3 Police v Nguyen DC Pukekohe CRI-2022-092-004813, 21 September 2022.District Court decisions[10] At his sentencing indication on 21 September 2022, Judge McNaughton notedthat Mr Nguyen had been living illegally in New Zealand for three years.4 The Judgealso noted the substantial commerciality of the operation which, the Judge considered,would produce an annual revenue of $240,000.5 The Judge considered that anystarting point would be at least in the upper range of band two of R v Terewi.6[11] The Judge noted that there was no evidence that Mr Nguyen was the actualringleader; his role had been to stay at the house, cultivate the plants, keep themwatered and to harvest cannabis from time to time. The Judge accepted that MrNguyen was the hands and not the brains of this operation. Accordingly, the Judgeadopted a starting point of three years' imprisonment and said that, if the indicationwere accepted, he would give a 25 per cent discount for pleading guilty.7[12] The Judge said any discount for good character would require affidavitevidence but indicated a slight reduction might be given to reflect Mr Nguyen's lackof English and cultural difficulties. The Judge noted he had dealt with half a dozenVietnamese operations in the last two or three years and observed that, "at some pointdeterrence has to come into the equation so all I am really prepared to indicate at thisstage is a starting point and a discount for guilty plea". The Judge said he would notpromise an end sentence of home detention, even if it got down to two years or less.8Sentencing decision[13] When sentencing Mr Nguyen, Judge McNaughton again noted the substantialcommerciality of the operation and that Mr Nguyen had not been the ring leader.9 TheJudge noted from the Correction's pre-sentence report that Mr Nguyen had acceptedthat what he did was wrong and that he had been financially supporting his familyback in Vietnam where he had a wife and two daughters. The Judge also noted thatthe proposed address for home detention had been assessed as suitable and that4 At [6].5 At [7].6 R v Terewi [1999] 3 NZLR 62 (CA).7 Police v Nguyen, above n 3, at [8].8 At [9].9 Police v Nguyen, above n 1, at [5].Mr Nguyen had said he had some mental health, sleep disturbance and constant fatigueissues.10[14] The Judge referred to an affidavit that Mr Nguyen had filed. It explained thathe left school at 15 to work as a fisherman following his father's death, that he cameto New Zealand for better economic opportunities, that his family home wasextensively damaged in a major flood and that his brother required treatment for throatcancer which his family were paying for privately. It also explained that Mr Nguyensaw cannabis cultivation as an opportunity to provide money for his family and that,in addition to $500 a week, he had free food and accommodation.11[15] The Judge adopted his indicated starting point of three years' imprisonment,applied a 25 per cent discount for his guilty pleas and a further 10 per cent discount toreflect Mr Nguyen's "personal circumstances, family difficulties, financial hardshipand [his] motivation to provide for [his] family". The Judge also applied a furthertwo-month discount for the time spent on EM bail. This resulted in the end sentencebeing reduced to 21 months' (one year and nine months') imprisonment.12[16] After making these deductions, the Judge considered what end sentence heshould impose. The Judge stated:[10] That is a short sentence of imprisonment within range for homedetention. You have an available address, and you would be a suitablecandidate. But as I said at the sentencing indication hearing, there is this issueof deterrence. Having sentenced a number of people in these operations,myself, and read the sentencing notes of other judges dealing with othermembers of the Vietnamese community committing the same offences; it isobvious to me now that home detention is simply no deterrent to members ofyour community getting involved in these commercial growing operations.The Vietnamese community in Auckland is not that large and I am sure bynow it is common knowledge amongst the Vietnamese community whatsentences the District Court is imposing for this type of offending. Homedetention is becoming the standard sentence for those involved as workers inthe operation as opposed to those who set them up. So if the Courts are goingto continue to impose home detention for this, there is really no risk ofimprisonment for those who choose to do it for financial reasons; and in themeantime these operations continue on a bigger and bigger scale. At somepoint the Courts have to say "Enough" and start imposing deterrent sentencesand, with some reluctance and some sympathy for your personal10 At [6].11 At [7].12 At [9].circumstances, I am afraid that point is now. I am not prepared to substitutehome detention here and I won't be prepared to substitute home detentionfrom now on for offending at this level.[17] The Judge then imposed an end sentence of 21 months' imprisonment on bothcharges.Approach on appeal[18] An appeal against a sentence is an appeal against a discretion. Section 250(2)of the Criminal Procedure Act 2011 (CPA) provides that the Court must allow anappeal against sentence if it is satisfied that, for any reason, there was an error in thesentence and that a different sentence should be imposed. In any other case, it mustdismiss the appeal.13 Section 251 of the CPA provides that, if a Court allows an appealagainst sentence, it must either set it aside and impose another sentence as appropriate,vary the sentence or any part of it, or remit the sentence back to the Court whichoriginally imposed it.[19] It is well-established that an appeal against sentence will be successful only ifthe appellant can point to an error, either intrinsic to the Judge's reasoning, or as aresult of materials submitted on the appeal, that vitiates the lower Court's sentencingdiscretion.14 Unless there is a material error in the end sentence, the Court will notintervene.15 There will be a material error if the end sentence is manifestly excessiveor wrong in principle.16 In general, the focus is on whether the end sentence is withinthe available range, rather than the process by which the sentence was reached.17Accordingly, mere tinkering is not permitted.18 However, there may be cases wherethere has been an error that requires correction, even if the sentence imposed is withinrange.1913 Criminal Procedure Act 2011, s 250(3).14 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [30]; Tamihana v R [2015] NZCA169 at [14] and [29]–[30].15 Te Aho v R [2013] NZCA 47 at [30]; Tamihana v R, above n 14, at [14].16 Tamihana v R, above n 14, at [14].17 Tutakangahau v R , above n 14, at [36]; Tamihana v R , above n 14, at [14].18 Maihi v R [2013] NZCA 69 at [21].19 Tutakangahau v R, above n 14, at [36].Relevant provisions of the Sentencing Act 2002[20] Sections 7 and 8 set out the purposes and principles of sentencing.[21] The purposes of sentencing in s 7(1) include:(a) to hold the offender accountable for harm done to the victim and thecommunity by the offending; or(b) to promote in the offender a sense of responsibility for, and anacknowledgment of, that harm; or(c) to provide for the interests of the victim of the offence; or(e) to denounce the conduct in which the offender was involved; or(f) to deter the offender or other persons from committing the same or asimilar offence; or(g) to protect the community from the offender; or[22] Section 8 provides that in sentencing an offender the court—(a) must take into account the gravity of the offending in the particularcase, including the degree of culpability of the offender; and(b) must take into account the seriousness of the type of offence incomparison with other types of offences, as indicated by themaximum penalties prescribed for the offences; and(e) must take into account the general desirability of consistency withappropriate sentencing levels and other means of dealing withoffenders in respect of similar offenders committing similar offencesin similar circumstances; and(g) must impose the least restrictive outcome that is appropriate in thecircumstances, in accordance with the hierarchy of sentences andorders set out in section 10A; and(h) must take into account any particular circumstances of the offenderthat mean that a sentence or other means of dealing with the offenderthat would otherwise be appropriate would, in the particular instance,be disproportionately severe; and(i) must take into account the offender's personal, family, whanau,community, and cultural background in imposing a sentence or othermeans of dealing with the offender with a partly or whollyrehabilitative purpose; and[23] Section 9(3A) provides that, in taking account of the time an offender has spenton bail with an EM condition, the Court must consider the time spent on bail with theEM condition, the relative restrictiveness of the EM condition and the defendant'scompliance with that condition.[24] Section 15A(1) provides that a court may impose a sentence of home detentiononly if:(a) the court is satisfied that the purpose or purposes for which sentenceis being imposed cannot be achieved by any less restrictive sentenceor combination of sentences; and(b) the court would otherwise sentence the offender to a short-termsentence of imprisonment.[25] Section 16(1) provides that, when considering the imposition of a sentence ofimprisonment the Court must have regard to the desirability of keeping offenders inthe community as far as that is practicable and consonant with the safety of thecommunity.[26] Section 16(2) requires that a sentence of imprisonment must not be imposedunless the Court is satisfied that:(a) a sentence is being imposed for all or any of the purposesin section 7(1)(a) to (c), (e), (f) or (g); and(b) those purposes cannot be achieved by a sentence other thanimprisonment; and(c) no other sentence would be consistent with the application of theprinciples in section 8 to the particular case.Submissions for Mr Nguyen[27] Mr Fredric, counsel for Mr Nguyen, submits that the 10 per cent discount givenby the District Court Judge for Mr Nguyen's personal circumstances was insufficientand that a discount in the order of 20 per cent would have been appropriate. He saysthat, while Mr Nguyen's offending was serious, that seriousness was properly reflectedin the Judge's starting point. Mr Nguyen was not a hardened criminal and was drivento offend out of necessity to provide financially for his wife and two daughters inVietnam. Nor was he driven by greed, as was reflected in the fact he was paid $500 aweek. In support of his submission that a greater discount should have been given,Mr Fredric refers to cases involving similar cannabis cultivation offending byVietnamese nationals where discounts of 20 per cent20 and nearly 18 per cent21 weregiven for personal mitigating factors, which included previous good character basedsolely or principally on an absence of convictions.[28] Mr Fredric also submits that a discount of two months for the nearly six monthsMr Nguyen spent on EM bail was inadequate, given his time on EM bail and giventhat the conditions of his bail were very restrictive. Mr Fredric says that for much ofthe time Mr Nguyen was unable to secure absences to go to the supermarket for foodand had to rely on other occupants to purchase food on his behalf.[29] Mr Fredric acknowledges that the above two points are of less significancethan Mr Nguyen's appeal against the Judge's decision to impose a sentence ofimprisonment when a sentence of home detention was clearly available.[30] Mr Fredric submits that the Judge's decision failed to take into account s 16 ofthe Sentencing Act and failed to take into account the directions of the Court of Appealabout the deterrent effect of home detention. He submits that the Judge should haveimposed a sentence of home detention rather than imprisonment given the availabilityof a suitable address and that Mr Nguyen had already spent six months on EM bail"without issue". Mr Fredric says there was nothing in Mr Nguyen's offending or inhis personal circumstances that warranted Mr Nguyen receiving a sentence differentfrom others who were sentenced to home detention for similar levels of offending insimilar circumstances.20 R v Dinh [2021] NZDC 10539 and Police v Pham [2022] NZDC 10199. In both cases, the relevantdefendants received a 20 per cent discount for personal mitigating factors, including previous goodcharacter.21 R v Nguyen [2022] NZDC 5832. In that case, the defendant received a discount of nearly 18 percent for personal mitigating factors, which included the defendant's previous good character andhis time spent in custody as a non-English speaker.[31] In a separate but related submission, Mr Fredric says that, when deciding tosentence Mr Nguyen to imprisonment rather than home detention, the Judge focusedonly on deterrence and failed to have regard to the other purposes of sentencing in s 7of the Sentencing Act and the principles of sentencing in s 8, in particular therequirement to impose the least restrictive outcome that is appropriate in thecircumstances.[32] Mr Fredric refers to William Young P's dissent in R v Vhavha, where thePresident of the Court of Appeal observed that there is nothing in the Sentencing Actto suggest a presumption for or against commuting a short-term sentence ofimprisonment, either generally or in respect of particular types of offences, and thatwhat is called for is an exercise of discretion giving effect to the purposes andprinciples set out in ss 7 and 8 of the Act.22 Mr Fredric notes that the Court of Appeallater endorsed William Young P's view in Osman v R and Manikpersadh v R.23[33] Mr Fredric submits that these decisions indicate that the Court should notsingle out particular classes of crimes, such as cannabis cultivation by persons ofVietnamese origin, as in need of general deterrence such that home detention shouldnot be imposed. Mr Fredric says the District Court Judge's decision is already beingadvanced in support of Police's opposition to home detention for people of Vietnameseorigin who are being sentenced for cannabis cultivation. He says that it would beanomalous if an intensively punitive focus on deterrence were adopted in relation tocannabis, when the Courts have started to take a more lenient approach tomethamphetamine offending following Zhang v R.24[34] For these reasons, Mr Fredric submits that Mr Nguyen's sentence ofimprisonment should be quashed and replaced by a sentence of home detention. Healso submits that such a sentence should take into account the six weeks Mr Nguyenspent in custody following arrest and the nine months spent on EM bail pending andpost sentence.22 R v Vhavha [2009] NZCA 588 at [29] and [43]-[45] per William Young P.23 Osman v R [2010] NZCA 199 at [20]-[21] and Manikpersadh v R [2011] NZCA 452 at [14].24 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.Submissions for the Police[35] Mr Riley, counsel for the Police, refers to the Court of Appeal's decision inParkin v R, where the Court confirmed the factual matters that usually assist inassessing the extent of any discount for previous good character as being: the lengthof period for which good character has been exhibited; whether the evidence of goodcharacter consists of the absence of convictions or also includes positive contributionsto society; and the need for any discount to be proportionate to the overall sentence.25[36] Mr Riley submits that, given that the only evidence of Mr Nguyen's goodcharacter is the lack of previous convictions and an intention to provide for his family,the Judge's 10 per cent discount could be seen as generous. However, he accepts itwas appropriate because Mr Nguyen's offending had been driven by financialhardship.[37] Mr Riley says that the Judge's discount of two months for Mr Nguyen's sixmonths on EM bail was sufficient, bearing in mind the Court of Appeal's observationin Paora v R that discounts of between 30 per cent and 50 per cent are often appliedfor time spent on EM bail.26 Mr Riley also says that, contrary to Mr Fredric'ssubmissions, Mr Nguyen's bail conditions permitted him to leave his address for prior-approved appointments for a range of reasons.[38] On the principal point in contention, whether Mr Nguyen should have beensentenced to home detention, Mr Riley submits that the District Court Judge made aconsidered and principled choice between imprisonment and home detention inaccordance with the Court of Appeal's decision in Fairbrother v R.27 He submits thatthe way the Judge's decision was structured supports an inference that the Judge wasaware that considering home detention is a two-step approach, as discussed by WilliamYoung P in R v Vhavha,28 and, when considering the end sentence, did so against theprinciple in s 16(2)(c) that a sentence of imprisonment is only appropriate when noother sentence would meet the purposes and principles of the Sentencing Act.25 Parkin v R [2018] NZCA 404 at [1626 Paora v R [2021] NZCA 559 at [53].27 Fairbrother v R [2013] NZCA 340 at [30].28 R v Vhavha, above n 22, at [31]–[36].[39] Referring to observations in Adams on Criminal Law where it is stated thatdeterrence has traditionally been given particular weight in relation to serious classesof case involving elements of premeditation and rational choice,29 Mr Riley submits,that Mr Nguyen made a rational choice to be involved in the cultivation of cannabisand that this type of offending requires a response that deters both the community atlarge and specific individuals in particular. He says that Mr Nguyen's offending canbe compared to methamphetamine couriers driven to offend by a rational choice ascompared with those who do so because of addiction or other forms of compulsion.[40] Mr Riley submits that, while the Judge did not specifically mention any of theother purposes or principles of sentencing, it can be inferred that he turned his mindto them, especially since the Judge imposed his sentence "with some reluctance andsympathy for [Mr Nguyen's] personal circumstances". Mr Riley says that the Judge'scomments do not suggest a presumption of imprisonment for such cannabis cultivationoffending, but that for specific cases of cultivating cannabis on a commercial scale bya profit-motivated offender, that a sentence of imprisonment is likely to be the leastrestrictive outcome possible. Given the significant commercial scale of the offending,Mr Nguyen's appreciation that what he was doing was wrong and his apparent lack ofremorse, Mr Riley says that the Judge's decision to impose imprisonment wasjustified.Discussion[41] Mr Nguyen's appeal raises three principal questions for determination:(a) Were the Judge's discounts for personal mitigating circumstances andtime spent on EM bail sufficient?(b) Did the Judge err in imposing a sentence of imprisonment rather than asentence of home detention, either because a sentence of homedetention ought to have been imposed in the circumstances of the caseor because the Judge gave inappropriate emphasis to deterrence?29 Mathew Downs (ed) Adams on Criminal Law (online ed, Thomson Reuters) at [SA 7.05].(c) If there was error by the District Court Judge, what sentence should beimposed?Were the Judge's discounts for personal mitigating factors and EM bail insufficient?[42] I am satisfied the Judge made no error with regard to the discount for personalmitigating factors.[43] The Court of Appeal has held that a discount of seven or eight per cent to reflecta lack of previous convictions is orthodox.30 In the light of that guidance, I amsatisfied, that, absent compelling individual circumstances, discounts of the order of20 per cent for personal circumstances, based simply on the absence of priorconvictions and the difficulties likely to be experienced in prison by persons who donot speak English, are not appropriate. The fact that the District Court has beenprepared to grant discounts of that order in some similar cases is not persuasive.[44] There are no compelling individual circumstances in Mr Nguyen's case.[45] I accept that Mr Nguyen has had a difficult personal history in Vietnam.However, things that happened in Vietnam, mostly before Mr Nguyen came to NewZealand, are not considerations that should have particular weight in New Zealand,bearing in mind that our justice system applies principally in respect of what peopledo within the jurisdiction of the New Zealand courts.[46] Much more relevant is the fact that, on the basis of his own affidavit,Mr Nguyen appears to have breached New Zealand law and the terms of his visitor'svisa soon after he arrived by taking up employment as a painter. He then overstayedhis visa and became involved in commercial cannabis cultivation, again in breach ofNew Zealand law.[47] Against that background, and in the absence of evidence of positivecontributions to New Zealand society or anything that suggests that a larger discountis required to ensure Mr Nguyen's sentence is proportionate to his offending, I30 Batick v R [2016] NZCA 307 at [27].consider the 10 per cent discount awarded by the Judge to be appropriate, even takinginto consideration the difficulties that Mr Nguyen might encounter in prison ifsentenced to imprisonment.[48] As for the discount for time spent on EM bail, in Paora v R, the Court of Appealobserved that what justifies credit at sentencing for a compliant defendant on EM bailis "the relative restrictiveness of the electronic monitoring condition, as well ascompliance with it which can be monitored and verified".31 The Court observed thatdiscounts of between 30 and 50 per cent of the time spent on EM bail have often beenused, though 50 per cent was not "uncommon" nor an upper limit. The Court stressed,however, that any assessment is an evaluative decision to be made "having regard tothe restrictiveness and duration of EM bail conditions in each case".32[49] I acknowledge that Mr Nguyen's freedom to move about while on EM bail wasconstrained. However, that is principally because he had no opportunity to be releasedfor reasons of employment because his previous employment had been in an illegalenterprise. It was Mr Nguyen's personal circumstances, rather than the conditions ofEM bail, that engendered his restricted circumstances. While Mr Fredric saysMr Nguyen had to rely on other occupants of the household to purchase food on hisbehalf, that is solely evidence from the bar and does not square with the Crown'scontrary submissions that Mr Nguyen's EM bail allowed for pre-approved absencesfor a range of reasons. In these circumstances, I have no sufficient basis for concludingthat the Judge erred in only applying a two month discount.Did the Judge err in sentencing Mr Nguyen to imprisonment?[50] Mr Fredric first submission in relation to the sentence of imprisonment is, ineffect, that because a sentence of home detention was available, because a suitableaddress for home detention was available, because others who had been charged withsimilar offences in similar circumstances had been sentenced to home detention,because Mr Nguyen had complied with his EM bail conditions for almost six months,and because it has been recognised that home detention carries a considerable degree31 Paora v R, above n 26, at [48].32 At [53].of denunciation and deterrence, s 16 of the Sentencing Act required the Judge tosentence Mr Nguyen to home detention rather than to a imprisonment.[51] With respect, that is not the effect of s 16.[52] As the Court of Appeal has made clear, when Judges are deciding whether tocommute a short sentence of imprisonment to a sentence of home detention, they areexercising a discretion. There is no presumption in the Sentencing Act for or againstcommuting a short sentence of imprisonment to a sentence of home detention, eithergenerally or in respect of particular type of offence.33 The real issue is whether theJudge exercised that discretion with appropriate regard to the requirements of s 16, inparticular s 16(2).[53] I am satisfied that the Judge had proper regard to the direction in s 16(1). Hereferred to the availability of a suitable address and to the fact Mr Nguyen was asuitable candidate. It is inherent in those references that the Judge had regard to homedetention and the fact it provides for a community-based sentence.[54] With respect to s 16(2), the question is whether the Judge had appropriateregard to the purposes of sentencing in s 7(1)(a) - (c), (e), (f) and (g) and the principlesof sentencing in s 8. This is another way of framing Mr Nguyen's other ground ofappeal; namely, that the Judge focused only on deterrence when sentencingMr Nguyen to imprisonment.Did the Judge focus only on deterrence?[55] It is clear that a decision to impose a sentence of imprisonment over a sentenceof home detention cannot be made entirely on the basis of one purpose such asdeterrence.34 To do so amounts to an error of law, as Mr Fredric submits.33 R v Vhavha, above n 22, at [29].34 Fairbrother v R, above n 27 at [29] and Manikpersadh v R, above n 23, at [8].[56] In Doolan v R, the Court of Appeal said:35In our view the critical point is that the sentencing decision as betweenimprisonment or home detention involves a discretionary exercise thatnecessarily engages all of the principles and purposes in ss 7 and 8 in theSentencing Act. Those provisions of the Sentencing Act do not accord greaterweight to factors such as denunciation or deterrence than the personalcircumstances of the offender. The relative weight to be given to the principlesand purposes of the Act is left to be determined by the sentencing judge in allthe circumstances of the case.[57] The Court in Doolan also explained that the role of the court on appeal was "aswith other appeals against sentence, on the identification of error, having regard to thediscretionary nature of the decision".36 However, as the Court of Appeal explained inMcConnel v R, the weight that a sentencing judge attaches to a particular factor is nota basis to challenge the exercise of a discretion.37[58] The question, therefore, is whether the Judge's decision to imposeimprisonment as opposed to home detention was driven entirely by deterrence, inwhich case it would have been an error of law, or whether the Judge merely affordedgreater weight to it, as he was entitled to, in an evaluative exercise that engaged theprinciples and purposes of ss 7 and 8 of the Sentencing Act, or whether there was othererror in the Judge's decision to sentence Mr Nguyen to imprisonment rather than tohome detention.[59] Before considering the District Court Judge's decision, it is instructive toconsider William Young P's analysis in R v Vhavha of the process by which a Judgeshould decide whether to commute a short sentence of imprisonment to a sentence ofhome detention.38[60] William Young P noted that:[31] The two-step process required for a sentence of home detentionrequires the Judge first to decide that the sentence which is otherwiseappropriate is a short-term sentence of imprisonment ("stage one") and thenwhether to commute that sentence to home detention ("stage two"). Faithful adherence to such processes requires the judge at stage one to operate35 Doolan v R [2011] NZCA 542 at [38] (footnotes omitted).36 At [39].37 McConnel v R [2013] NZCA 303 at [15].38 R v Vhavha, above n 22.on the assumption that there is no stage two. The underlying legislativepurpose is to avoid net-widening and, more particularly, to ensure that themore lenient sentences which can be imposed at stage two are reserved forthose who would truly otherwise have been imprisoned. But while there isthus good reason for the legislature to require a two stage approach tosentencing, the artificiality of the intellectual processes which are involvedcan cause sentencing judges some difficulty. This is particularly so as twostage sentencing processes put pressure on conventional ideas about thehierarchy of sentences.[61] After considering a hypothetical example of how that process might play outsuch that a more culpable offender receives what appears to be a more lenient sentence,the President observed:[36] Given the relatively open-textured nature of the relevant sentencingdiscretion, I accept that there is scope for sentencing judges to imprison on thebasis that a sentence of home detention would not give the right message orsimply would not look right. In the context of the Sentencing Act, this involvesresort at stage two of the sentencing process to the more punitive of thepotentially applicable principles of sentencing (ie those provided for ins 7(1)(a) (holding accountable), (e) (denunciation) and (f) (deterrence)). Forreasons which I am about to give, however, I think that sentencing judgesshould be cautious about doing so.[37] The purposes of holding an offender to account and denunciation areobviously applicable at stage one of the process, but as the example which Ihave given above illustrates, they do not easily justify outcomes underwhich more culpable offenders receive more lenient sentences than lessculpable offenders.[62] The President then considered the circumstances of the appellant in the casebefore him and accepted that the appellant's culpability warranted a sentence ofimprisonment of 18 months and observed that, as such, the appellant's culpability waseffectively the same as other offenders such as a robber, burglar or drug dealer whoseculpability warranted a sentence of 18 months' imprisonment. The President said therewas no obvious reason why the appellant was in any more need of being held toaccount than the postulated robber, burglar or drug dealer or why his conduct was moreworthy of denunciation than that of the robber, burglar or drug dealer.39[63] The President then stated:[39] What about deterrence?39 At [38].[40] General deterrence is one of the primary purposes (and justifications)of sentencing. The general deterrent effect of the criminal law puts a great dealof downwards pressure on levels of offending. I also accept that legalsanctions imposed on an offender and the probability of more severe sentencesin the event of further offending have the tendency (obviously not alwaysrealised) of deterring that offender from further offending. What I am moresceptical about is marginal deterrence, that is, the idea that moderate variationsin sentencing severity (such as between a sentence of imprisonment and homedetention) have an appreciable impact on rates of offending.[41] Despite my general reservations about marginal deterrence, I acceptthat some types of offending may be more likely to be deterred than others. Ialso accept that this may be true of immigration offending.[64] The President then discussed the possible deterrent effect of sentences onimmigration offending and said he was reluctant to single out immigration offendingas a particular type of crime for which considerations of deterrence assumed such greatsignificance as practically to exclude home detention.40[65] Coming now to the District Court Judge's sentencing decision, it is clear thatthe Judge engaged in the two-stage process described by William Young P. The Judgeconsidered, at stage one, whether the sentence that was otherwise appropriate was ashort-term sentence of imprisonment, and, at stage two, whether to commute thatsentence to a sentence of home detention. The second stage was that described inparagraph [10] of the Judge's decision as set out at [16] above.[66] While that paragraph focused on the question of deterrence, it followed adiscussion in which the Judge had addressed, either directly or by necessaryimplication:(a) in terms of the purposes of sentencing in s 7 of the Sentencing Act:(i) holding Mr Nguyen accountable for his offending (s 7(1(a));(ii) promoting in Mr Nguyen a sense of responsibility for hisoffending (s 7(1)(b));(iii) denouncing Mr Nguyen's conduct (s 7(1)(e)); and40 At [44].(iv) protecting the community from Mr Nguyen's offending(s 7(1)(g)); and(b) in terms of the principles of sentencing in s 8 of the Sentencing Act:(i) the gravity and seriousness of Mr Nguyen's offending;(ii) the general desirability of consistency with sentences for similaroffending;(iii) what was the least restrictive outcome appropriate in thecircumstances; and(iv) Mr Nguyen's personal and family circumstances.[67] While the Judge did not separately revisit those purposes and principles in hisdiscussion of home detention versus imprisonment, it is implicit in the structure andlanguage of his decision that those purposes and principles also informed his decisionto sentence Mr Nguyen to a short term of imprisonment. In that respect, I consider theJudge's focus on deterrence in the final paragraph was not to the exclusion of the otherpurposes of sentencing in s 7(1)(a), (b), (e) and (g) or to the principles of sentencingin s 8.[68] However, because the Judge did not, at stage two, separately consider whetherthose other purposes and principles justified Mr Nguyen being treated differently fromother offenders with a similar level of culpability who might receive an end sentenceof 21 months' imprisonment, I consider he fell into error. The Judge assumed that,because Mr Nguyen was another example of a Vietnamese person who had overstayedhis visa and had engaged in commercial cannabis cultivation, this justified his sentencenot being commuted to one of home detention in order to send a message to theVietnamese community in New Zealand. The Judge did not consider whether thisresult was consistent with sentences that had been and would be imposed on otherswho had engaged in cannabis cultivation with a similar level of culpability. Nor didhe consider whether that result was consistent with sentences that would be imposedon other offenders with a similar level of culpability (the putative robber, burglar anddrug dealer referred to by William Young P) who might have attracted sentences of 21months' imprisonment.[69] In these respects, the Judge did not, at stage two of the sentencing exercise,have appropriate regard to the principles of sentencing in s 8(b), (c) and (g).[70] Quite apart from the obvious human rights difficulties of sentencing a personby reference, at least in part, to their ethnic or national origins, I am satisfied that theapproach adopted by the Judge was not consistent with a proper consideration of thepurposes and principles of sentencing as required by s 16(2) of the Evidence Act. Thatconclusion is reinforced by the Judge's statement that not only would he not entertainhome detention for Mr Nguyen, but he would not be prepared to substitute homedetention for imprisonment "from now on for offending on this level." Whether thatstatement was aimed just at the Vietnamese community or more generally, a Judgecannot fetter his sentencing discretion in this way.[71] As the Court of Appeal reaffirmed in Osman v R, there is no statutory basis forsentencing to deter a category of case. A sentencing judge must approach each caseas an individual case. The purposes in s 7(1) must be applied rationally.41 Whether ornot the sentence imposed on Mr Nguyen would have the deterrent effect asserted bythe Judge, imposing the sentence on the blanket basis of sending a message to theVietnamese community was not an appropriate exercise of the sentencing discretion.If such messages are to be sent, there are other more appropriate means; for example,through New Zealand's immigration controls.[72] For these reasons, I am satisfied that the Judge erred when deciding to sentenceMr Nguyen to a sentence of imprisonment rather than to a sentence of home detention.What sentence should be imposed on Mr Nguyen?[73] I take as my starting point the three years selected by the District Court Judgeand apply the same discounts of 25 per cent for Mr Nguyen's guilty plea and41 Osman v R, above n 23, at [23].10 per cent for Mr Nguyen's personal circumstances. That reduces the sentence to 23months.[74] When Mr Nguyen was sentenced on 10 February 2023, he had been in custodyfor six weeks and then on EM bail for six months. Because Mr Nguyen has remainedon EM bail pending appeal, those figures are now six weeks in custody and almostnine months on EM bail, with no issues of non-compliance. Having regard to s 9A(3),I am satisfied that a further deduction of five months is appropriate. This results in anend sentence of 18 months' imprisonment.[75] Coming now to stage two of the sentencing exercise, I am satisfied that asentence of home detention should be imposed rather than a sentence of 18 months'imprisonment. Having regard to the purposes of sentencing in s 7(1)(a), (b), (e), (f)and (g), and to the principles of sentencing in s 8(b), (c) and (g), I am satisfied that,while there is a need to denounce Mr Nguyen for his offending and to deter othersfrom similar offending, I see no basis for treating Mr Nguyen differently from otherswith a similar level of culpability, whether in relation to cannabis cultivation or otheroffending.[76] Given the direction in s 8(g) that the Court must impose the least restrictivesentence appropriate in the circumstances, I am satisfied that in the large majority ofcases involving similar levels of culpability, a sentence of 18 months' imprisonmentwould be commuted to a sentence of home detention. There is nothing onMr Nguyen's personal circumstances that warrant treating him any differently.[77] Accordingly, I am satisfied that Mr Nguyen should be sentenced to a period ofhome detention of nine months.[78] I note that this decision does not mean that every person, whether Vietnameseor otherwise, who pleads guilty to commercial cannabis cultivation can expect to besentenced to home detention. Each case must be considered on its own terms.Result[79] I uphold Mr Nguyen's appeal.[80] I quash the sentence of 23 months' imprisonment imposed in the District Court.[81] I sentence Mr Nguyen to nine months' home detention to be served atx/xxx Xxxxx Xxxx, Manurewa, where Mr Nguyen has been on EM bail. Theconditions of EM bail should apply to the home detention sentence.____________________G J van Bohemen J