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 submits that the starting point was too high and the discount for rehabilitation should have been greater.

[8]    Ms Ives points out that the Judge did not explain how he reached his global starting point of seven-and-a-half years and did not discuss case law.  However,    Ms Ives submits that the lead charges must have been the methamphetamine charges. She submits the Judge should have adopted a starting point for those charges of no more than five-and-a-half years because of the quantities involved, and Mr Pham’s status as an addiction-driven street level dealer whose role was between “lesser and significant” (referencing the Court of Appeal’s guideline judgment in Zhang v R3 and the Supreme Court’s decision in Berkland v R4).

[9]    Ms Ives submits that an uplift of no more than one year was appropriate for the balance of the offending, resulting in an overall starting point of no more than six-and-a-half years.

2      Criminal Procedure Act 2011, s 250(2).

3      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

4      Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.

[10]   As to the discount for rehabilitation, Ms Ives submits that the 15 per cent afforded by the Judge should, at minimum, have been 20 to 25 per cent. Ms Ives emphasises Mr Pham’s longstanding addiction, the very real efforts he made to rehabilitate prior to sentencing and the inference that he has not re-offended since his initial arrest on 10 February 2022. His relapse some three months before sentencing should not diminish credit for his efforts.

Discussion

[11]   Mr Pham was 43 and 44 years old during his offending. He was a prolific street level dealer. He ran his own business, buying and selling a range of drugs. He did not have any other occupation. This is how he made a living. He was also a long-term addict and his drug dealing funded the drugs he consumed.

[12]   R v Zhang is the guideline judgment for methamphetamine offending. Both the quantum of the drug dealt with and the offender’s role in the dealing are important considerations. The quantum of methamphetamine involved (160.85 grams) falls nearly two-thirds through Band 2 of Zhang (5 grams–250 grams). The penalty range is two to nine years’ imprisonment.

[13]   I accept Ms Ives’s submission that there is no indication Mr Pham was profiting greatly from his dealing in drugs. He lived modestly and the cash found in his possession amounted to $765. But, this was a commercial operation (it is how he funded his life), and in the 11 month period of analysis, he supplied or offered to supply methamphetamine on 223 occasions.

[14]   I see no need to categorise Mr Pham’s role. He was not part of a drug dealing organisation. He was a sole trader. His culpability is to be determined by the quantity of drugs he dealt in and all the other factors relevant to culpability, including his addiction.

[15]Counsel referred me to a number of comparator cases,5 but focused on Gray v

R.6 Mr Gray was also a street level dealer. In the space of a month he made 54 offers to  supply  methamphetamine  to   19  customers.  The total amount offered was

235.8 grams. Mr Gray was found with $7,585 in cash.

[16]The Court of Appeal considered that:

[22] … Mr Gray had an operational function within a chain, was not directing others, was not primarily motivated by profit or expected financial gain, but did understand the scale of what he was involved in. We would place him at the higher end of “lesser” and the lower end of “significant”.7

[17]The Court also considered:

[21] … The presence of that cash indicates that Mr Gray had  some (probably temporary) control over the proceeds from sales. We do not see any significance in the fact that Mr Gray was riding a push bike, but we do accept there was no evidence of assets or financial rewards consistent with deriving any great profit from his offending. … We consider it more than likely that Mr Gray was involved in supplying methamphetamine to provide a ready source of the drug for himself, but was likely to be receiving at least a little profit along the way.

[18]The Court held that a starting point of six years’ imprisonment was appropriate.

[19]   Ms Ives submits that Mr Gray’s offending was more serious than Mr Pham’s because of the greater quantity of methamphetamine offered for supply and the greater commerciality, as evidenced by the amount of cash in Mr Gray’s possession and the shorter period of the offending.

[20]   For my part, I see little difference in the cases. Mr Gray was regarded as an operator within a chain. His role was to sell methamphetamine. He did not keep the profits. He fed his addiction and perhaps kept a small amount of the profit. He seems to have had a more affluent client base than Mr Pham, going by the amount offered for sale within a period of a month. Mr Pham was not an operator within a chain. He was in business on his own account. He traded prolifically but in small quantities.

5      Su v R [2020] NZCA 128; Wineera v R [2021] NZHC 900; Harris v R [2021] NZCA 143; and

Waterman v R [2024] NZHC 2687.

6      Gray v R [2020] NZCA 548.

7      Zhang v R, above n 3, at [126].

Over a year, he traded in a smaller quantity than Mr Gray did in a month. But, he traded for profit. This was his sole source of income and he used it to fund his lifestyle and to feed his addiction.

[21]   A starting point for Mr Pham’s methamphetamine offending of six years is appropriate.

[22]   The next issue is the uplift for the other drug offending. Ms Ives submits it should be no more than one year, having regard to totality.

[23]I consider the other charges to be significant.

[24]   Between 22 March 2021 and 30 October 2021, Mr Pham supplied and offered to supply GBL on at least 28 occasions. The amount involved was 1,200.6 millilitres (493.6 ml supplied and 707 ml offered for supply).

[25]   I agree with Crown counsel that, on a standalone basis, a starting point of two to two-and-a-half years’ imprisonment is appropriate.

[26]   The  police  found  102  ecstasy  pills  at  Mr Pham’s  property.    Between    1 December 2021 and 31 December 2021, Mr Pham supplied and offered to supply a total of 29 ecstasy pills on seven occasions.  I find that a starting point of around  two years’ imprisonment would have been available on a standalone basis.

[27]   The cannabis offending is less serious. Mr Pham sold 34 grams of cannabis to three people in two-and-a-half months. 176 grams were found in his home. A starting point of something less than two years’ imprisonment would be appropriate.

[28]   I will not assign a starting point to the unlawful possession of the three rounds of ammunition charge. It is separate offending, but the penalty will be subsumed in the totality evaluation.

[29]   Sentencing is an evaluative exercise, not a mathematical one. Standing back, Mr Pham dealt frequently in relatively small amounts of a range of drugs. He sold to consumers. There is no indication he profited beyond living off the income and

funding his addiction. I find that an uplift in the range of one to one-and-a-half years would be appropriate. So, an overall starting point in the range of seven to seven-and-a-half years.

[30]   As to the discounts, in my view the Judge was generous. I put to one side the discount for guilty pleas. All the others overlap in that they relate to Mr Pham’s addiction and his attempts to deal with it.

[31]   The cultural report talked of Mr Pham’s early addiction to drugs (10 per cent discount). The Judge gave a 15 per cent reduction for Mr Pham’s recent attempt to overcome his addiction. Unfortunately, he relapsed shortly before sentencing. Finally, the six month (7 per cent) reduction for bail conditions was particularly generous. It was bail simpliciter with descending hours of nightly curfew granted largely to enable him to reside at rehabilitation facilities.

[32]   In sum, the Judge gave Mr Pham an overall discount of 32 per cent, largely in response to Mr Pham’s addiction and his attempts to address it pre-sentence. A total discount of 52 per cent was applied. More is not justified.

[33]   Further, Mr Pham has relevant previous convictions. On 20 May 2013, he was sentenced to two years and six months’ imprisonment on a conviction for possessing methamphetamine for supply. On 30 July 2013, four months were added to this sentence on convictions for possession of cannabis for supply and using methamphetamine. The Judge did not increase the sentence to account for these convictions. He could have.

Decision

[34]   An appellate court’s focus on an appeal against sentence is the end sentence. If it is manifestly excessive then that is an error which must be corrected. I bear in mind that an appropriate sentence will be one which falls within the range available to the sentencing Judge. In this case, the Judge might have adopted a somewhat lower global starting point and been within range. But, he could also have afforded a lesser discount for Mr Pham’s personal factors. Overall, I find Mr Pham’s end sentence of three years and six months’ imprisonment to be within the range available to the Judge.

[35]The appeal is dismissed.

Brewer J