NGUYEN v NEW ZEALAND POLICE [2023] NZHC 922

NGUYEN v NEW ZEALAND POLICE [2023] NZHC 922 [24 April 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-000090[2023] NZHC 922BETWEEN THANH VAN NGUYENAppellantAND NEW ZEALAND POLICERespondentHearing: 24 April 2023Appearances: C S Fredric for AppellantS R Bicknell for RespondentJudgment: 24 April 2023ORAL JUDGMENT OF VAN BOHEMEN J[Appeal against sentence]Counsel/Solicitors:C S Fredric, AucklandCrown Solicitor, Manukau[1] Thanh Van Nyugen appeals the sentence of two years and three months'imprisonment imposed by Judge D J McDonald in the District Court at Pukekohe1after Mr Nyugen had pleaded guilty to one charge of cultivating cannabis.2[2] The sentence was set after the Judge adopted a starting point of three years andthree months' imprisonment and applied discounts of 25 per cent for an early guiltyplea and a discount of approximately 5.8 per cent because jail would be harder forMr Nguyen, who does not speak English.[3] Mr Nyugen appeals on the basis that the Judge erred by failing to give anycredit for his previous good character. He says a greater discount than 5.8 per centshould have been applied to take account of the difficulties Mr Nguyen hasexperienced and will continue to experience in an environment where Mr Nguyen doesnot speak English and all around him do not speak another language. Counsel forMr Nguyen, Mr Frederic, says a discount in the order of 15 per cent is warranted forpersonal mitigating factors, including good character and the difficult environmentMr Nguyen is experiencing in prison. He asks that the sentence of imprisonment bequashed and replaced by a sentence of home detention.3[4] The Police oppose the appeal.Background[5] Mr Nguyen is a 43 year old Vietnamese national. He arrived in New Zealandin 2019 on a visitor's visa but failed to leave when it expired.[6] On 18 October 2022, Police executed a search warrant at a residential addressin Pukekohe. The address was a two-storied dwelling with two large downstairsrooms, three upstairs bedrooms and a double standalone garage. Inside the address,Police found a large cannabis growing operation. Excluding the toilet, kitchen, lounge1 Nguyen v Police [2023] NZDC 3305.2 Misuse of Drugs Act 1975, s 9(1). Maximum penalty seven years' imprisonment.3 Mr Frederic initially proposed a discount of 20 per cent but adjusted this figure to take account ofMr Nguyen's prior convictions.area and one of the bedrooms, the entire dwelling had been used for cannabiscultivation.[7] In their search, Police found 92 small cannabis plants, 45 medium sized plants,and 152 small seedlings in the downstairs area, 20 large heavily budded and ready toharvest plants in the upstairs area, and 42 similar such large plants in the standalonegarage. 38 bags of potting mix, 47 bags of cannabis waste and several large containersof liquid fertilizer were also found. The dwelling was set up like other commercial-scale cannabis operations. The bathroom was used for watering, with a water pumpand piping leading to the rooms. Large carbon filters were erected in all the roomswhere cannabis was growing. A concealed power transformer, which provided powerto several houses on the street, was used to divert power to the house, a typical measureused to lower costs and disguise the large amounts of electricity used.[8] Mr Nguyen was arrested leaving the address by vehicle prior to the executionof the search warrant. On arrest, Police located keys fitting both the gate and doors tothe dwelling, and clothing in the vehicle that had a very strong smell of cannabis.District Court decision[9] Judge McDonald noted that Mr Nguyen was one of a large number ofVietnamese nationals who had remained in New Zealand illegally and had becomeinvolved in the commercial cultivation of cannabis. The Judge noted that the Policehad identified a large increase in commercial scale cannabis cultivation set up for thesole purpose of making money.4[10] After going through the summary of facts, the Judge noted that Mr Nguyen hadfailed to give information about how he became involved in the operation, what hisrole was or who else was involved. However, the Judge considered that, givenMr Nguyen's age, he was "more than the mere gardener".54 Nguyen v Police, above n 1, at [3]-[4].5 At [7].[11] In setting the starting point, the Judge held that Mr Nguyen's offending fellwithin category 2 of the guideline judgment of R v Terewi,6 which has a range of twoto four years' imprisonment. The Judge noted that Mr Nguyen's counsel had proposeda starting point of two years and nine months. Given the sophistication of theoperation and the number of plants, the Judge considered a starting point of three yearsand three months was appropriate.7[12] On Mr Nguyen's personal aggravating and mitigating factors, the Judge said,"there needs to be no uplift because you have no previous convictions in this country".However, the Judge noted that Mr Nguyen was an overstayer.[13] The Judge applied a discount of 25 per cent for Mr Nguyen's early guilty plea,and a "small discount" amounting to 5.8 per cent because jail would be harder forMr Nguyen because he did not speak English. These deductions resulted in the endsentence of two years and three months' imprisonment. 8[14] The Judge observed that the pre-sentence report identified Mr Nguyen'soffending related factors as "supportive attitudes and self-entitlement". The Judgeconsidered this meant Mr Nguyen considered it was appropriate for him to come tothis country and break the law. The Judge noted that Mr Nguyen had refused to talkabout his offending to his probation officer and had no insight or remorse for what hehad done.[15] It transpires that Judge McDonald was mistaken about Mr Nguyen's lack ofprevious convictions. In fact, Mr Nguyen was convicted in 2021 for carelesslyoperating a vehicle and driving with a breath alcohol level exceeding 400 microgramsof alcohol per litre of breath.Approach on appeal[16] 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 an6 R v Terewi [1999] 3 NZLR 62 (CA).7 Nguyen v Police, above n 1, at [9]-[12].8 At [13]-[14].appeal 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.9 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.[17] 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. 10 Unless there is a material error in the end sentence, the Court will notintervene.11 There will be a material error if the end sentence is manifestly excessiveor wrong in principle.12 In general, the focus is on whether the end sentence is withinthe available range, rather than the process by which the sentence was reached.13Accordingly, mere tinkering is not permitted.14 However, there may be cases wherethere has been error that requires correction, even if the sentence imposed is withinrange.15Submissions for Mr Nguyen[18] Mr Frederic submits that the Judge erred in failing to apply an appropriatediscount for Mr Nguyen's previous good character. Mr Frederic submits that, inaccordance with s 9(2)(g) of the Sentencing Act 2002, the absence of previousconvictions is a mitigating factor that must be taken into account and is not merely theabsence of an aggravating factor. Mr Frederic also submits that the fact Mr Nguyenis an overstayer does not disentitle him to a discount for good character. Mr Fredericalso places some emphasis on the difficulties Mr Nguyen has experienced in jail.Mr Frederic submits that, if appropriate account is taken of those two considerations,9 Criminal Procedure Act 2011, s 250(3).10 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [30]; Tamihana v R [2015] NZCA169 at [14] and [29] – [30] .11 Te Aho v R [2013] NZCA 47 at [30]; Tamihana v R, above n 9, at [14].12 Tamihana v R, above n 9, at [14].13 Tutakangahau v R, above n 10, at [36]; Tamihana v R, above n 9, at [14].14 Maihi v R [2013] NZCA 69 at [21].15 Tutakangahau v R, above n 10, at [36]Mr Nguyen should receive a discount of the order of 15 percent, which would makehim eligible for home detention.[19] Mr Frederic refers to several cases in support of the appeal. The most relevantare Manawaiti v R,16 where the Court of Appeal reduced a sentence for sexual violationoffending by nine months (a discount of 8.3 per cent) in recognition of the appellant'sprevious good character, notwithstanding his traffic related convictions, Rana v R,17where the Court of Appeal held that the District Court Judge had fallen into error intreating the absence of convictions as an absence of an aggravating factor rather thana mitigating factor, and two decisions, R v Dinh18 and Nguyen v Police¸19 whichinvolved commercial scale cultivation of cannabis by Vietnamese defendants who haddifficulty speaking English and all but one of whom were overstayers. In those cases,good character discounts of 20 per cent and 15 per cent (which also took into accountold age) were given. Mr Frederic invites me to accept that the size of the discountsreflected the Courts' acceptance of the difficulties the defendant would experiencewith prison life and not by reference to eligibility for home detention.Submissions for the Police[20] Ms Bicknell, counsel for the Police, submits that, while Judge McDonald'sunderstanding that Mr Nguyen had no previous convictions was in error, that wouldnot have changed the sentence imposed. Mr Nguyen's previous driving relatedconvictions would not have justified any uplift for previous offending. However, theyproperly support the Judge's decision not to grant a discount for previous goodcharacter.[21] Ms Bicknell says that Mr Nguyen has not advanced anything evidencing goodcharacter or actual positive contributions to society, which the Court of Appeal inParkin v R said was a relevant factor for assessing any discount for good conduct.2016 Manawaiti v R [2013] NZCA 88 at [20].17 Rana v R [2014] NZCA 468, at [16].18 R v Dinh [2021] NZDC 10539 at [11], [13] and [14].19 Nguyen v Police DC Hamilton CRI-2021-024-000897, 2 March 2022 at [32]. That decision wasa sentencing indication. (Nguyen v Police No 1). The discount was confirmed in Nguyen v Police[2022] NZDC 5832 at [2] (Nguyen v Police (No 2).20 Parkin v R [2018] NZCA 404 at [16].However, she submits that if any modest discount of 7 – 8 per cent were to be given,it would constitute tinkering.[22] Finally, Ms Bicknell says that Mr Nguyen has provided no evidence to showthat his four months in custody led to such unexpected and unusual hardship such thata further discount was required, referring to Ropiha v R.21 She submitted that anydifficulties associated with Mr Nguyen's lack of English while in custody wereappropriately recognised by the Judge's initial discount and a further discount is notwarranted in light of Mr Nguyen's time spent in custody now.Discussion[23] Mr Nguyen's appeal raises the following questions:(a) Did the Judge err in applying no discount for previous good character?(b) If so, what discount should have been made?(c) Would a discount of that order be more than mere tinkering?Did the Judge err in applying no discount for previous good character?[24] As the Court of Appeal confirmed in Rana v R,22 to treat the absence ofconvictions as the absence of an aggravating factor rather than a mitigating factor isan error that can be corrected on appeal.[25] It is plain that the District Court Judge made that error, based on hisunderstanding that Mr Nguyen had no previous convictions. I do not consider that theerror is corrected by the fact that it has now come to light that Mr Nguyen has twodriving related convictions. They are not directly related to the offending for whichMr Nguyen was sentenced. The offences warrant being taken into account whenconsidering any deduction for Mr Nguyen's good character. However, they are not of21 Ropiha v R [2013] NZCA 60 at [27].22 Rana v R, above n 17.such gravity that they would necessarily preclude any deduction for good character, aswas accepted in Manawaiti v R and other decisions.23What discount should have been made?[26] Any discount for previous good character is ultimately a matter ofimpression.24 While minor convictions may not automatically preclude a discount forotherwise good character, any discount depends on relevant factors such as the lengthof the period for which a defendant has exhibited good character, whether the evidenceconsists of an absence of convictions or includes positive contributions to society, andthe need for any discount to be proportionate to the overall sentence.25[27] Mr Nguyen has shown no evidence of positive contributions to society noranything to suggest that a discount was required to ensure his sentence wasproportionate to his offending. However, I accept that his personal circumstances,other than his driving convictions, are little different from the defendants in R v Dinh26and Nguyen v Police,27 where substantial discounts were made by reference to theabsence of previous convictions and the difficulties the defendants would have withprison life because they did not speak English.[28] In R v Dinh, discounts of just over 45 per cent were applied to all fourdefendants who had pleaded guilty in relation to commercial-scale cannabiscultivation at four Auckland addresses. The discounts recognised the defendants'guilty pleas, lack of previous convictions and the fact they spoke a foreign languagewhich would make serving sentences of imprisonment difficult.28[29] One defendant, who was identified as coordinating the growing of cannabis,was held to come within category 3 of R v Terewi, and to warrant a starting point ofthree years and six months' imprisonment.29 The other three defendants, who were23 Manawaiti v R, above n 16, at [20]. See also Lamb v Police HC Christchurch CRI-2008-409-223,19 February 2009 at [5] and [20].24 R v Hockley [2009] NZCA 74 at [32].25 Parkin v R, above n 20, at [16].26 R v Dinh, above n 17.27 Nguyen v Police (No 1), above n 19.28 R v Dinh, above n 18, at [8] and [12] – [14].29 At [2] and [10].described as crop sitters or gardeners, were held to come within category 2 of R vTerewi and to warrant starting points of two years and nine months' imprisonment.30All but one of the defendants were illegally in New Zealand.31 No account appears tohave been taken of that factor.[30] As a result of the discounts, all four defendants were eligible for and weresentenced to home detention.[31] Nguyen v Police concerned a single-house commercial-scale cannabiscultivation operation, similar to the present case. The Mr Nguyen in that case was a67 year old Vietnamese man who had been illegally in New Zealand and evadingdeportation for over 10 years. In the sentencing indication, the Judge considered himto be the harvester and groomer of the cannabis cultivation and to have had a role thatwas integral to the cultivation, its success and harvest, but that he was not theprincipal.32 He was held to come within category 3 of R v Terewi, and to warrant astarting point of three years and six months' imprisonment.33[32] On the basis the defendant had no previous convictions and had lived until 67without encountering the criminal law the Judge allowed a discount of 10 per cent.34On the basis the defendant would struggle to adjust to a sentence of imprisonment, theJudge allowed a further 5 per cent discount. The Judge noted that a further discretediscount would be made when the defendant was sentenced to take account of the timespent in custody.35[33] At sentence, the Judge said the fact the defendant had been illegally in NewZealand for almost 11 years gave some concern when a sentence of home detentionwas being sought. However, bearing in mind the defendants' age, the fact he had beenin custody for four and a half months and the defendant's clear insight into how he hadbecome involved in the offending and his clear awareness of and willingness to bedeported at the end of the sentence, the Judge considered it appropriate to give the30 At [11].31 At [9].32 Nguyen v Police (No 1), above n 19, at [20] and [26].33 At [20] and [27].34 At [31] – [32].35 At [33] – [35].defendant the opportunity of home detention.36 The Judge then deducted nine monthsfor the time spent in custody, which resulted in an end sentence of 15 months'imprisonment. A sentence of seven and a half months' home detention was thenimposed.37[34] While I accept there are parallels between these decisions, I do not considerthey provide a compelling basis for adjusting Mr Nguyen's sentence.[35] First, as the Judge noted at the Nguyen sentencing indication, District Courtsentencing in relation to cannabis cultivation varies considerably.38[36] Secondly, a discount of 20 per cent just for the absence of prior convictionsand the difficulties likely to be experienced in prison is high, particularly when peoplehave been breaking the law by living illegally in New Zealand. Given that the Courtof Appeal has held that a discount of seven or eight per cent to reflect a lack of previousconvictions is orthodox,39 even the 10 per cent discount in Nguyen for that factor ishigh. However, it took into account the defendant's age, which is considerably higherthan the current Mr Nguyen.[37] Thirdly, unlike the other Mr Nguyen, the current Mr Nguyen has beenuncooperative and has shown no insight into his offending. In addition, he has priorconvictions, albeit not directly relevant to the current offending. In thesecircumstances, it would have been open to the Judge to have offered no discount at allfor good character.40[38] Fourthly, the discount Judge McDonald made for the difficulty Mr Nguyen willencounter while in prison is slightly higher than that made for the other Mr Nguyen inrespect of that factor.[39] Taking all these considerations into account, I consider that any discount forpersonal circumstances, including good character and the difficulty of prison life for36 Nguyen v Police (No 2), above n 19, at [4] – [6].37 At [8].38 Nguyen v Police (No 1), above n 19, at [21].39 Batick v R [2016] NZCA 307 at [27].40 Strydom v R [2018] NZHC 358 at [28].Mr Nguyen, would have been no higher than 11 per cent. That discount, incombination with the 25 per cent guilty plea discount, would have resulted in an endsentence of 25 months' imprisonment; that is, a difference of two months'imprisonment from the sentence imposed.Would any discount for good character be mere tinkering?[40] In Cao v Police, a case with very similar facts where a sentence of two yearsand three months' imprisonment was also imposed, Downs J accepted that a differenceof two months constituted tinkering.41 I reach the same conclusion.[41] I also take into consideration that the possibility of home detention wasconsidered and recommended in the pre-sentence report. It was squarely before JudgeMcDonald when he sentenced Mr Nguyen.[42] Accordingly, I decline to set aside the sentence.Result[43] I dismiss the appeal.____________________G J van Bohemen J41 Cao v Police [2022] NZHC 2034 at [17]-[19].