Pham v The the King
[2022] NZCA 538
•14 November 2022 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA1/2022 [2022] NZCA 538 |
| BETWEEN | DUNG DINH PHAM |
| AND | THE KING |
| Hearing: | 1 November 2022 |
Court: | Gilbert, Venning and Mander JJ |
Counsel: | M J Taylor-Cyphers for Applicant |
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 representative charges of supplying and offering to supply methamphetamine,[5] a discrete charge of possessing methamphetamine for supply,[6] and two sets of charges of unlawfully possessing a firearm[7] and ammunition.[8]
Sentencing in the District Court
[5]Misuse of Drugs Act, s 6(1)(c) and (2)(a).
[6]Misuse of Drugs Act, s 6.
[7]Arms Act 1983, s 50(1)(a).
[8]Section 45(1).
In providing his sentence indication the Judge took a starting point of 14 years’ imprisonment for what was described as the lead offending, the representative charges of supplying methamphetamine and the discrete charge of possessing the drug for supply.[9] An uplift of three years’ imprisonment was applied for the balance of the offending. This must have included the representative charges of offering to supply methamphetamine, the representative charge of selling cannabis and the two sets of Arms Act charges relating to the firearms and ammunition. A further one year’s imprisonment was added to mark the continuation of the offending by Mr Pham while on bail.
[9]The Judge’s initial reference in his sentence indication to the Crown’s submission that the lead offending was the possession for supply charge is clearly an error when regard is had to the balance of his decision and the amount of methamphetamine to which he refers when applying the guideline judgment of R v Fatu [2006] 2 NZLR 72 (CA).
The Judge advised of his intention to impose an MPI of 60 per cent, although he was open to hearing further submissions regarding the length of such an order. A 20 per cent discount for guilty pleas was also indicated.
At sentencing, the Judge adopted his overall starting point of 18 years imprisonment as previously indicated.[10] Because of the serious nature of the offending, no reduction was given for any personal mitigating circumstances.[11] Applying the 20 per cent discount for the guilty pleas, an end sentence of 14 years and five months’ imprisonment was imposed in respect of the supplying and offering to supply methamphetamine charges. Concurrent sentences of three months’ imprisonment were imposed for each of the remaining charges. Based on the 60 per cent figure previously indicated, Mr Pham was ordered to serve an MPI of eight years and eight months.[12]
Application for an extension of time to appeal
[10]Sentencing notes, above n 1, at [6].
[11]At [7].
[12]At [10].
Mr Pham was sentenced on 23 March 2018. The time for filing an appeal against his sentence expired on 24 April 2018. However, Mr Pham’s notice of appeal was not filed until 5 January 2022, a delay of some three years and nine months.
The only information proffered in explanation for the lateness of his appeal is that contained in Mr Pham’s notice of appeal. He says he was advised to appeal his sentence straight after being sentenced within the statutory period but chose not to do so. On further reflection and after speaking with other inmates “who had similar or worse charges that got rather less, and usually without a greater MPI”, he has belatedly decided to follow that initial advice to appeal. His notice of appeal is dated 26 October 2019. No explanation has been provided or is known to his subsequently assigned counsel, Ms Taylor-Cyphers, for why Mr Pham’s already late notice of appeal was not received by this Court for some 26 months.
Because Mr Pham has not been able to proffer any explanation for the lateness of his appeal, apart from having simply changed his mind, Ms Taylor-Cyphers was left to argue that the appeal should be heard because no prejudice arises from the delay. Having regard to the length of Mr Pham’s sentence, she seeks “an indulgence” to allow the appeal to be heard out of time. We doubt that provides a sufficient basis to grant leave in the circumstances.
It is apparent that Mr Pham received legal advice shortly after he was sentenced in early 2018. Notwithstanding that advice, he decided not to appeal. The only explanation for the delay is his subsequent change of mind a number of years later. In the circumstances of such a lengthy period of inaction, that sole explanation does not warrant a departure from the principle of finality. While an appeal court can and will extend time to avoid miscarriages of justice, we are reinforced in our conclusion that leave should not be granted in this case, by the appeal’s lack of merit.
The grounds sought to be advanced
Mr Pham sought leave to advance three grounds in support of his appeal. He contends the following:
(a)The overall starting point of 18 years’ imprisonment was too high.
(b)A discount should have been applied in recognition of his drug addiction.
(c)The 60 per cent MPI was not correctly imposed.
We review each of these issues in turn.
Starting point
No objection is taken to the 14-year starting point for the lead methamphetamine charges. However, Mr Pham seeks to argue the three-year uplift for the balance of the offending and the further one year in recognition of the repetition of offending while on bail was excessive. It was submitted a two-year uplift would have been sufficient to recognise the additional charges and the aggravating feature of Mr Pham’s continued offending on bail.
The end sentence of 14 years and five months’ imprisonment to which the MPI applied was ultimately imposed at sentencing on the supplying and offering to supply methamphetamine charges. However, there was some confusion regarding which charges the 14-year starting point referred to in the sentence indication related to, and the makeup of the balance of the charges that were the subject of the three-year uplift.
Ms Taylor-Cyphers’ submission was premised on the understandable belief that the earlier indicated 14-year starting point related to the same charges in respect of which the lead sentences were imposed. It was her submission that the three-year uplift for possessing the 100 g of methamphetamine for supply, the firearms charges and the representative cannabis charge was excessive. However, Mr Kayes for the Crown pointed out that this uplift also took into account the two representative charges of offering to supply methamphetamine which included some 26 occasions when Mr Pham offered to supply the drug.
We do not consider the uplift of three years’ imprisonment for the representative offering to supply charges and Mr Pham’s repeated possession of firearms and ammunition, in the context of class A drug-dealing, was unwarranted. Nor do we think Mr Pham’s continued commercial dealing in methamphetamine while on bail was other than a serious aggravating feature that justified a further uplift of one year’s imprisonment.[13] In terms of the overall effective sentence that resulted, any residual concerns regarding these uplifts is offset by the relatively generous 20 per cent discount Mr Pham received for his guilty pleas, which, in respect of the first episode of offending, were not entered until some two and a half years after his first appearance in the District Court during which time he continued to reoffend.
Addiction
[13]See Clunie v R [2013] NZCA 110 at [22].
Ms Taylor-Cyphers submitted that Mr Pham laboured under an addiction to methamphetamine which, it was argued, was causative of his offending. She submitted a 10 per cent discount should have been applied to recognise this personal mitigating circumstance. Reliance was placed on statements made by Mr Pham to the pre-sentence report writer in explanation for his offending, which he maintained was caused by his “escalating drug use, and associated debts, [that] required him to supply drugs in order to accommodate his own habit”. Mr Pham claimed his drug use resulted in a “bill I could not afford” and caused him to have to supply others. He said his desire to use “copious amounts of drugs drove his decision making”.
In Zhang v R, this Court held that personal mitigating circumstances relating to an offender are relevant to sentencing that involves class A drug offending, as in any other offending.[14] Previously, it had been suggested that dealing in methamphetamine was such a grave form of offending that less weight should be given to personal circumstances.[15] In Zhang, a germane mitigating consideration was identified to be an offender’s addiction.[16] However, this Court also observed that, while it did not exclude the possibility of a case in which such an impairment “co‑exists with more substantial offending”, commercial dealing is likely to be inconsistent with the impairment of an offender’s ability to exercise rational choice, which is what diminishes culpability and justifies discounting a sentence.[17] Further, any such discount should be based on persuasive evidence as opposed to mere self-reporting, as is the situation here.[18]
[14]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [136].
[15]See Chen v R [2009] NZCA 445, [2010] 2 NZLR 158 at [174].
[16]Zhang v R, above n 14, at [137].
[17]At [147].
[18]At [148].
Mr Pham was sentenced in accordance with the guideline judgment of R v Fatu that applied to methamphetamine sentencing at that time.[19] The subsequent Zhang decision modified the approach to methamphetamine sentencing, but this Court confirmed the case only had application to sentences in respect of which an appeal had been filed before the judgment was delivered and did not have retrospective effect.[20] The change in approach taken by this Court to personal mitigating factors, such as addiction, in the context of methamphetamine offending is therefore strictly not open to Mr Pham.
[19]R v Fatu, above n 9.
[20]Zhang v R above n 14, at [187]–[191].
However, even leaving that impediment to one side, we do not consider Mr Pham’s self-reported reliance on methamphetamine materially affects his culpability. In the circumstances of this case the information provided is not sufficient to discharge the onus on him to demonstrate that the extent and effect of his dependency could realistically account for the scale and sophistication of his offending, which went well beyond the level of commerciality that would be necessary to support a personal addiction.
Minimum period of imprisonment
The third issue sought to be raised related to the calculation of the MPI. It was argued that the MPI had been incorrectly imposed on the entirety of the sentence, including in respect of what were described as the “non-methamphetamine charges”. It was not suggested that an MPI (even of 60 per cent) was not available to be imposed.
However, Ms Taylor-Cyphers argued, because the MPI of eight years and eight months had been calculated on the sentence of 14 years and five months’ imprisonment, which in turn was the product of an 18 year overall starting point including uplifts for “non-methamphetamine” charges, the MPI had illegitimately been extended to the firearms and cannabis offending that ought not have been included in its calculation.
We do not consider this argument is sustainable, at least not in the circumstances of the present case. The end sentence of 14 years and five months’ imprisonment to which the MPI attaches is the effective finite sentence imposed in respect of methamphetamine dealing charges that carry a maximum sentence of life imprisonment. To the extent that end sentence was calculated on the basis of a starting point that included uplifts for the associated firearms charges, the repetition of the methamphetamine offending while on bail, and dealing in another drug, albeit of a less serious class, such offending represented aggravating conduct that added to the seriousness of Mr Pham’s methamphetamine offending and his personal culpability.
Ms Taylor-Cyphers noted that s 86(1) of the Sentencing Act 2002 only permits the imposition of an MPI where an offender is sentenced to a determinant sentence of imprisonment of more than two years for a particular offence. However, there can be no suggestion that an MPI was imposed in respect of an offence for which Mr Pham was sentenced to a term of imprisonment of less than two years. The three-month sentences of imprisonment in respect of the Arms Act charges and the representative cannabis dealing charge were all imposed concurrently. These discrete sentences did not cumulatively add to the overall effective sentence imposed in respect of the methamphetamine offending to which the MPI attached.[21]
Conclusion
[21]It was also initially submitted that there had been a mathematical error in the calculation of the 60 per cent MPI. However, eight years and eight months’ imprisonment was confirmed as the correct figure.
Mr Pham has not been able to identify any reasonably arguable error in the sentence imposed upon him in March 2018. It follows that, in the absence of any satisfactory explanation for the delay in filing his appeal, we must decline his application for an extension to file his appeal out of time.
Result
The application for an extension of time to appeal sentence is declined.
Solicitors:
Crown Solicitor, Manukau for Respondent