Pham v The King

[2025] NZHC 1628

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-000049

[2025] NZHC 1628

BETWEEN

THE-HUNG PHAM

Appellant

AND

THE KING

Respondent

Hearing:

9 June 2025

Appearances:

C S Fredric for Appellant

R van Boheemen for Respondent

Judgment:

18 June 2025

JUDGMENT OF MOUNT J

Sentence Appeal

This judgment was delivered by me on 18 June 2025 at 12 pm, Pursuant to Rule 11.5 of the High Court rules.

Registrar/Deputy Registrar Date: ……………………………

Solicitors:

Meredith Connell

PHAM v R [2025] NZHC 1628 [18 June 2025]

Introduction

[1]    The-Hung Pham pleaded guilty in the District Court to two charges of possession of equipment for cultivating cannabis and one charge of possession of material for cultivating cannabis. He appeals against the sentence of seven months’ home detention imposed on 23 January 2025.1

Background

[2]    The agreed summary of facts records that on 21 January 2022 the appellant and another man drove to a hardware store in West Auckland and bought five extension cords and a large roll of duct tape. They then drove to a hydroponic supplies store and bought items used in the cultivation of cannabis. They drove to another hydroponic supplies store and bought further hydroponic equipment and “Coco” fertilizer. Together, they took the equipment they had purchased to an address in Manurewa.

[3]    Just under six weeks later, on 3 March 2022, police went to the same Manurewa address and located a sophisticated cannabis cultivation operation. They found a total of 36 cannabis plants ranging between 500–900 mm in height, together with multiple extension leads, duct tape, “Coco” fertilizer, heat lamps, extractor fans, and other equipment and material used to cultivate cannabis.

[4]    On 2 August 2022, police visited the appellant at his home address. While there, they discovered material used in the cultivation of cannabis including “Coco” fertilizer, Monsta Bud, and Canna liquid. Police arrested the appellant and charged him with possession of those items as well as those he purchased on 21 January 2022.

[5]    On 7 December 2022 police executed a search warrant at the appellant’s storage unit in West Auckland. The appellant had accessed the unit twice that day. No one else accessed the unit until police executed the search warrant. Inside the storage unit police located more items used in the cultivation of cannabis including ballasts, heat lamps and bulbs, carbon filter extraction fans, “Coco” fertilizer, pots and dehumidifiers.  Police also located a small amount of cannabis leaf inside the storage

1      R v Pham [2025] NZDC 2262.

unit on the floor near the equipment. The appellant’s fingerprints were found on a lampshade inside the storage unit. Police also located $29,850 in cash in the appellant’s bedroom, together with the signed lease agreement for the storage unit.

[6]    The appellant accepted that he possessed the above equipment and material with the intention that it be used for the purpose of cultivating cannabis.

District Court sentence

[7]    Counsel found no relevant authorities where possession of equipment or materials for cultivating cannabis was the lead offence, so the District Court Judge arrived at a starting point by reasoning from first principles. He concluded the appellant’s possession of equipment and materials was a reasonably significant contribution to the production of cannabis.2 By way of comparison, he thought the principal offenders cultivating cannabis at the house in Manurewa could expect a starting point of around three years’ imprisonment based on category two of R v Terewi (a small-scale cultivation for a commercial purpose, which attracts a starting point of two to four years).3 Based on that analysis, he set a starting point of two years’ imprisonment.4

[8]    He then allowed a 20 per cent reduction for the guilty pleas, bringing the sentence to 19 months’ imprisonment.5 He was not persuaded to allow any reduction for previous good character given the length of time over which the appellant had offended. He imposed an end sentence of seven months’ home detention.6

Grounds of appeal

[9]    The appellant submits the starting point of two years was too high and it should have been no higher than nine months’ imprisonment. He submits the Judge erred in principle by referring to the scale of the cannabis growing operation in Manurewa in setting the starting point, because the appellant was not charged as a party to

2 At [18].

3      At [14]–[15] citing R v Terewi [1999] 3 NZLR 62 (CA) at [4].

4 At [19].

5 At [19].

6 At [20].

cultivating cannabis, merely with possession of equipment and materials. He submits the Judge assumed the appellant was responsible for all the equipment used in the cultivation, speculated as to the annual yield of the Manurewa operation, and treated the scale of the operation as an aggravating factor without a sufficient foundation.

[10]   The appellant also criticised the starting point on the grounds of disparity with other offenders from the wider operation, consistency with case law, and what he submitted was incorrect emphasis on the period of offending, financial gain and the appellant’s overall role.

[11]   In oral submissions, the appellant’s counsel mainly focused on the disparity point, describing the starting point as an outlier compared to other offenders sentenced as part of the broader police operation, “Operation Bush”.

Assessment

Starting point

[12]   In my view, the Judge was entitled to look at the scale of the cannabis operation in the agreed facts when assessing the seriousness of the appellant’s conduct. The appellant delivered cannabis growing equipment to the Manurewa address intending it to be used to cultivate cannabis. The agreed summary of facts recorded that around six weeks later there was a sophisticated cannabis growing operation in progress at that address, using much of the same type of equipment the appellant had purchased and delivered. The Judge considered the scale of that operation as relevant to the appellant’s culpability for his admitted offending, even though the appellant was not the one cultivating the cannabis. In doing so, the Judge did not sentence the appellant as if he were a party to the Manurewa cultivation. Rather, he used the approximate seriousness of the Manurewa operation as a cross-check on the level of culpability that should be assigned to the appellant’s admitted offending, given that the appellant possessed the equipment for the purpose of cultivation.

[13]   It is true that the cultivation offence has a higher maximum penalty (seven years’ imprisonment as opposed to five years for possession of equipment), but I am satisfied the Judge adequately factored that in by adopting a lower starting point than

he would have for cultivation. The appellant’s offending did not occur in a vacuum, and in my view the Judge was entitled to look at the overall relativities as part of a first principles exercise. He was not required to ignore the context of the appellant’s offending, which was admitted in the agreed summary of facts. The Judge’s assessment of the Manurewa operation did not involve any improper speculation or incorrect assumptions about the appellant’s role, and I have not identified any error of principle in his approach.

[14]   Importantly, the appellant’s offending continued even after he was arrested and charged with his initial offending. Having been arrested on 2 August 2022, he was found in charge of the storage unit containing more equipment for cultivating cannabis four months later on 7 December 2022. The appellant accepted that he intended that equipment to be used for growing cannabis. His counsel accepted this was offending while on bail that would ordinarily result in an explicit uplift to the starting point.

[15]   I am satisfied the Judge was entitled to conclude the appellant’s possession of equipment and material made a reasonably significant contribution to the growing of cannabis described in the agreed summary of facts. He purchased a significant quantity of equipment on two occasions, and he was found in possession of a large sum of cash ($29,850) while continuing to possess cultivation equipment. He had been living in New Zealand for approximately 11 years at that stage and had a job, in contrast to the lower-level participants described as “gardeners” whom the Judge said were typically young, illiterate, illegal immigrants with no English living on the premises in poor conditions.7

[16]   In oral submissions the appellant referred to the following decisions in support of the disparity argument:

(a)R v Tung Hoang Nguyen:8 Mr Nguyen was a first offender charged as a party to cultivating cannabis. His role was to hire a truck to transport cannabis from one location to another. He was not the driver of the vehicle, but he arranged for it to be made available. He also went to

7 At [16].

8      R v Tung Hoang Nguyen [2025] NZDC 8787.

the address where cannabis was being grown and fixed a pump used to water the cannabis plants. The operation in that case was extensive, with three large greenhouses 70–80 per cent full of cannabis plants. The Judge adopted a starting point of two years’ imprisonment, with allowances of 10 per cent for pleading guilty on the eve of trial and 10 per cent for not having any previous convictions. From a nominal end sentence of 19 months’ imprisonment, the Judge imposed a sentence of eight months’ home detention with six months of post-detention conditions.

(b)R v Hai Trieu Hoang:9 Mr Hoang pleaded guilty to cultivating cannabis, and two charges of possession of equipment for the cultivation of cannabis. The cultivation charge related to over 6,000 cannabis plants. The equipment charges related to separate addresses, where Mr Hoang accepted he was in possession of equipment used in the cultivation of cannabis. The Judge adopted a starting point of two and a half years’ imprisonment for cultivation, uplifted by six months to three years taking into account the possession charges. There were reductions of 20 per cent for guilty pleas, 10 per cent for previous good character and a further reduction of 10 months for a significant period spent on EM bail. That resulted in an end sentence of six months’ home detention.

(c)R v Thanh Nam Nguyen:10 Mr Nguyen pleaded guilty to two charges of cultivating cannabis. The first charge related to 44 mature cannabis plants, nine cannabis plants which appeared unhealthy and 111 cannabis seedlings. A trial date was set down in 2021 but he failed to attend his trial and a warrant was issued for his arrest. He was not arrested until over a year later in 2022 when he was found at another grow house with over 6,000 cannabis plants, resulting in the second charge. The Judge adopted a starting point of two and a half years for the first charge, uplifted by one year for the second charge and a further two months for offending on bail. There were reductions of 20 per cent

9      R v Hai Trieu Hoang [2025] NZDC 4044.

10     R v Thanh Nam Nguyen [2023] NZDC 14199.

for guilty pleas and seven months for personal factors including a lack of previous convictions and time spent in custody. That resulted in an end sentence of 28 months’ imprisonment.

[17]   After the hearing, the parties filed a joint memorandum with all available sentencing  decisions  from  Operation  Bush,   namely   Palmer   (starting   point:  17 months),11 Hodgson (starting point: 21 months),12 Sproule (starting point: two years, nine months)13 and Gotty (starting point: two years, 10 months).14

[18]   Consistent sentences are desirable for similar offenders committing similar offences in similar circumstances. That principle was long reflected in the common law parity principle and is now codified in the Sentencing Act 2002.15 But every case is also unique, and care is needed in any disparity assessment to identify the relativities considering all relevant factors and the end sentence, rather than placing undue focus on individual components of a sentence.

[19]   Here, I am satisfied the two-year starting point is sufficiently consistent with the starting points adopted in the overall operation to avoid giving rise to unjustified disparity. Starting with the decisions referred to in the hearing, the appellant’s offending was broadly comparable to that of Mr Tung Hoang Nguyen (who hired a truck to transport cannabis and fixed a pump used to water cannabis plants), despite the more serious charge and larger amount of cannabis involved in Mr Nguyen’s case. Similarly, the appellant’s starting point is reconcilable with the three-year starting point in R v Hai Trieu Hoang, which was more serious. Mr Thanh Nam Nguyen’s offending was more serious again, but the starting point was 44 months.

[20]   I have reviewed the additional decisions supplied following the hearing, and I am satisfied the starting points in those cases are also reconcilable with the appellant’s

11 R v Palmer [2025] NZDC 5299.

12 R v Hodgson [2025] NZDC 3865.  The Judge started with 42 months’ imprisonment but reduced that by 30 per cent for Ms Hodgson’s limited role and a further 20 per cent for acting under duress: at [12]–[13].

13 R v Sproule DC Auckland CRI-2022-044-002042, 11 October 2024.

14 R v Gotty [2025] NZDC 10985. The memorandum also referred to several decisions where the sentencing notes are not available. I was not able to place any real weight on those decisions in the absence of the reasons for the sentences imposed.

15 Sentencing Act 2002, s 8(e).

starting point, given the circumstances of the offending in each case. The Crown is also correct to observe that the Court could have adopted a slightly lower starting point but uplifted it to reflect the offending on bail.

[21]   Standing back, I consider the two-year starting point was within the range available to the Judge, albeit at the high end of that range.16 I have not identified any other error or inconsistency in the starting point that would require appellate intervention.

Reduction for personal factors

[22]   The appellant submitted there should have been a reduction of 10 per cent for previous good character, and five per cent for insight and remorse.

[23]   In support of the good character submission, the appellant pointed to his lack of previous convictions at age 30, having lived in New Zealand for 11 years. He relied purely on his lack of convictions and did not present other evidence of good character such as testimonials or other supporting materials.

[24]   The Crown accepts that a previous good character reduction of 5 per cent to 10 per cent might have been available to the appellant. However, the Crown also submitted that the reduction of 20 per cent for the guilty pleas was generous. The appellant entered pleas two years after he was charged (it appears, having signalled pleas a year earlier). The Crown submitted a reduction of 10–15 per cent would have been appropriate.

[25]   The appellant provided a letter of apology as evidence of remorse and insight. The Crown noted that this contrasted with his comments to the presentence report writer that he was “a victim of the circumstances” who had been manipulated and exploited by others. This, the Crown submitted, tended to show a deflection of responsibility and shifting of blame to others. The letter apologised for “any offence,

16    In the District Court, the Crown suggested a lower starting point (14 months), with reductions of up to 25 per cent, which would have resulted in a nominal end sentence of around 11 months’ imprisonment.

inconvenience, or disruption that my action may cause”, but this was not a strong case of remorse or insight that required the Judge to reduce the sentence on that basis.

Overall assessment

[26]   I have concluded above that the two year starting point was within range. A reduction for previous good character could have been allowed here as the Crown accepted, but equally a lower credit for the guilty pleas would also have been appropriate. Those two factors largely cancel each other out, and it was open to the Judge not to make any further reduction for remorse.

[27]   This case is a good example of the way in which sentences can validly be constructed in more than one way. The Judge could have arrived at the end sentence of seven months’ home detention in a variety of ways. Ultimately, the question is whether that sentence was manifestly excessive or led to unjustified disparity. For the reasons outlined above I am satisfied it was within the available range and did not offend the principle of parity.

Result

[28]The appeal is dismissed.

Mount J