Pham v The the King - [2022] NZCA 538

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA1/2022
[2022] NZCA 538

BETWEEN	DUNG DINH PHAM Applicant
AND	THE KING Respondent

Hearing:	1 November 2022
Court:	Gilbert, Venning and Mander JJ
Counsel:	M J Taylor-Cyphers for Applicant G R Kayes for Respondent
Judgment:	14 November 2022 at 10 am

JUDGMENT OF THE COURT

The application for an extension of time to appeal sentence is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mander J)

Following the provision of a sentence indication, Dung Dinh Pham pleaded guilty to representative charges of supplying methamphetamine and other related offending. He was sentenced by Judge Andrée Wiltens in the Manukau District Court on 23 March 2018 to 14 years and five months’ imprisonment and ordered to serve a minimum period of imprisonment (MPI) of eight years and eight months.[1] Mr Pham seeks an extension of time to appeal against this sentence.

The offending

[1]R v Boatwright-Pinn [2018] NZDC 8631 [Sentencing notes].

Mr Pham’s initial methamphetamine dealing took place between 1 July and 11 August 2014. It resulted in him being convicted of representative charges of supplying[2] and offering to supply methamphetamine,[3] and a representative charge of selling cannabis.[4] On 31 occasions, Mr Pham supplied amounts of methamphetamine, ranging between 0.1 g to 28 g. At least 164 g was sold. He also offered to supply a total amount of 388 g of methamphetamine on seven other occasions, including an offer to supply as much as 336 g. Over four occasions he sold a total amount of 30 g of cannabis, including one transaction involving the sale of an ounce.
[2]Misuse of Drugs Act 1975, ss 6(1)(c) and (2)(a).
[3]Sections 6(1)(c) and (2)(a).
[4]Sections 6(1)(d) and 6(2)(c).
While Mr Pham was bailed on these charges, the police executed a search warrant at his bail address. A loaded double-barrelled shotgun was located in his bedroom.
Mr Pham continued to deal in methamphetamine while on bail. Between 12 October and 16 December 2016, he, together with his brother and a friend, became the subject of a further police investigation. Mr Pham arranged for methamphetamine to be stored at a nearby house a short distance from his bail address. With the assistance of his accomplices, he supplied at least 1324.25 g of methamphetamine over the course of 90 different deals that ranged between 0.25 g and 500 g (70 transactions involved unknown amounts). He also offered to supply the drug on 19 further occasions. Most of these transactions involved unknown quantities, but at least 35.25 g of the drug was offered.
Upon termination of the police operation a search of the address where the methamphetamine was stored located 100 g of the drug in various containers. Shotgun cartridges and 0.22 ammunition were also located, together with drug-dealing paraphernalia. A search of Mr Pham’s bail address located a sawn-off 0.22 calibre rifle and a cash counting machine in his bedroom.
Mr Pham’s ongoing offending after his initial arrest resulted in further…

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 the King

Details

AGLC: Pham v The the King [2022] NZCA 538
Case: [2022] NZCA 538
Decision Date: 14 November 2022 at 10 am

CaseChat Overview and Summary

Dung Dinh Pham, the applicant, appealed against the sentence handed down by the Manukau District Court, seeking an extension of time to appeal. The respondent, The King, opposed the extension of time. The Court of Appeal had to determine whether the applicant's application for an extension of time to appeal his sentence should be granted. The Court needed to examine the reasons provided for the delay in filing the appeal and assess whether the appeal had sufficient merit to warrant an extension of time. The Court of Appeal found that Pham's application for an extension of time to appeal his sentence should be declined. The Court considered the delay in filing the appeal and found that Pham had not provided a satisfactory explanation for the delay, apart from having changed his mind. Additionally, the Court found that the appeal lacked merit as Pham had not been able to identify any reasonably arguable error in the sentence imposed upon him in March 2018.

The Court of Appeal found that Pham's arguments regarding the starting point, discount for addiction, and minimum period of imprisonment were not persuasive. The Court found that the uplift for the balance of the offending and the repetition of offending while on bail was warranted, and the 20 per cent discount for guilty pleas offset any residual concerns regarding these uplifts. The Court also found that Pham's addiction did not materially affect his culpability and that the minimum period of imprisonment was correctly imposed. Therefore, the application for an extension of time to appeal sentence was declined.

Orders