Pham v The King - [2025] NZHC 1147

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-000123 [2025] NZHC 1147

BETWEEN CUONG CHINH PHAM
Appellant

AND THE KING
Respondent

Hearing: 13 May 2025

Counsel: A M M Ives and S C Mohtadi for Appellant
U B Keller for Respondent

Judgment: 14 May 2025

JUDGMENT OF BREWER J

This judgment was delivered by me on 14 May 2025 at 1 pm

Registrar/Deputy Registrar

Solicitors/Counsel:
Annabel Ives (Auckland) for Appellant
Kayes Fletcher Walker (Manukau) for Respondent

PHAM v R [2025] NZHC 1147 [14 May 2025]

Introduction

[1] Mr Pham appeals his sentence of three years and six months’ imprisonment, on six drugs charges and a charge of possession of ammunition, imposed on him by Judge G A Andrée Wiltens on 19 December 2024.1

[2]The Judge summarised the charges:

[2] The first charge is between March 2021 and February 2022 supplying methamphetamine and the amount supplied is 142.85 grams and you supplied drugs on 186 occasions.

[3] Secondly between 15 March 2021 and 5 February 2022 you offered to supply methamphetamine on 37 occasions and the amounts that have been identified come to 18 grams.

[4] Next on 22 March 2021 through to 30 October 2021 the supplying of gamma-butyrolactone, GBL in other words. On 14 occasions you supplied this substance and the quantity is 493.6 millilitres.

[5] Then 3 April 2021 to 29 October 2021 offering to supply GBL. The amount was 707 millilitres and you offered to supply that on 14 occasions.

[6] Lastly on 10 February 2022 you were in possession of Ecstasy for supply, 102 tabs, and you offered 29 pills on one occasion on 2021.

[7] Possession of cannabis for supply, 176 grams. You supplied 34 grams between October and December 2021.

[8] Possession of explosives without a lawful excuse. You had three nine millimetre rounds of ammunition in your possession.

[3] The Judge set a global starting point of seven years and six months’ imprisonment and allowed the following discounts:

(a)Pleas of guilty: 20 per cent

(b)Cultural report: 10 per cent

(c)Efforts at rehabilitation: 15 per cent

(d)Time spent on bail: six months (approximately 7 per cent)

1 R v Pham [2024] NZDC 32017.

[4] The Judge then imposed the end sentence of three years and six months’ imprisonment. I note that a strict application of mathematics to the Judge’s discounts results in a sentence of three years, seven months and two weeks’ imprisonment. So, perhaps inadvertently, the end sentence was less than it might have been.

[5] I must allow Mr Pham’s appeal if I find the Judge to be in error such that a different sentence should be imposed.2

[6] Mr Pham requires leave to appeal out of time. The Notice of Appeal was filed approximately seven weeks late. Ms Ives has explained that the delay was for various reasons, including the holiday period. I grant the application and extend the time to file the Notice of Appeal.

The appeal

[7] Ms Ives…

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 Pham v The King

Details

AGLC: Pham v The King [2025] NZHC 1147
Case: [2025] NZHC 1147
Decision Date: 14 May 2025

CaseChat Overview and Summary

In Pham v The King, the appellant, Mr Pham, challenged his sentence of three years and six months' imprisonment for multiple drug-related charges and possession of ammunition. The case was heard and decided by Justice Brewer of the High Court of New Zealand. Mr Pham's primary contention was that the starting point of his sentence was too high and that the discount for his efforts at rehabilitation should have been greater. The court was required to determine whether the starting point and the discount applied were appropriate, and whether the final sentence was within the range available to the sentencing judge.

The court analysed the starting point by considering the quantity of drugs involved and Mr Pham’s role as an addiction-driven street-level dealer. It compared his case with other precedents and found that an appropriate starting point would be within the range of six to seven years. The court also assessed the discount for rehabilitation, noting Mr Pham’s longstanding addiction and efforts to rehabilitate, and concluded that the discount of 32% was reasonable given the totality of the circumstances. Ultimately, the court determined that the final sentence of three years and six months' imprisonment was within the appropriate range and dismissed the appeal.

The court's decision underscores the importance of a balanced approach in sentencing, considering both the severity of the offending and the mitigating factors such as the offender's addiction and rehabilitation efforts.

Orders