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Phan v The King

Phan v The King

Case [2023] NZHC 2009 31 July 2023

Unconscionable Conduct

Restitution

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-498

[2023] NZHC 2009

BETWEEN
THANH NGA PHAN

Appellant

AND

THE KING

Respondent

Hearing: 27 June 2023

Appearances:

S Norrie for Appellant

R McDonald for Respondent

Judgment:

31 July 2023

JUDGMENT OF ANDERSON J

This judgment was delivered by me on 31 July 2023 at 3.00 pm.

………………………………
Registrar/Deputy Registrar

Solicitors:
Kayes Fletcher Walker, Manukau

PHAN v R [2023] NZHC 2009 [31 July 2023]

Introduction

[1] Ms Phan appeals against her sentence of two years nine months’ imprisonment for four charges of permitting a premises to be used for cannabis cultivation1 following guilty pleas on those charges. The charges relate to four tenanted residential properties owned by Ms Phan.2

[2] The question on appeal is whether the sentence was manifestly excessive.3 This Court must allow the appeal if it is satisfied that, for any reason, there is an error in the sentence imposed and that a different sentence should be imposed.4

Background

[3] The summary of facts sets out that on 16 April 2021, the police executed search warrants at five residential properties across Auckland, four of which were owned by Ms Phan. The fifth was owned by her then husband, Mr Nguyen, who has since been convicted of a charge under s 12 in relation to that property. Each of the tenanted houses had been extensively modified for the cultivation of cannabis on a commercial scale. Ms Phan’s properties were:

(a)19 Houkura Way, Sandringham;

(b)20 Martindale Lane, Tuakau;

(c)69 Longford Park Drive, Takanini; and

(d)79 Beatty Road, Pukekohe.

[4] At 19 Houkura Way Sandringham, the police found 72 mature cannabis plants and 50 smaller cannabis plants. The plants were located in the garage and all six rooms of the upper level of the house, excluding the hallway. One of the upstairs rooms had been converted into a processing room and contained a bucket of cannabis head and a

1      Misuse of Drugs Act 1975, s 12. Maximum penalty of three years’ imprisonment.
2      R v Phan [2022] NZDC 25558.
3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]-[35].
4      Criminal Procedure Act 2011, s 250(2).

further ziplock bag of cannabis head. The floor of that room was covered in cut cannabis material.

[5] At 20 Martindale Lane the police found cannabis plants in various stages of growth throughout the house namely 92 small plants ranging from 10–25 centimetres in height and 113 mature plants ranging between 75–107 centimetres in height. In the garage, police also located 296 grams of cannabis head drying on a plastic tray.

[6] At 69 Longford Park Drive police found 231 plants between 23-160 centimetres in height and 34 seedlings between 9–11 centimetres in height.

[7] At 79 Beatty Road police found cannabis plants in various stages of growth. Specifically, 41 cannabis seedlings all approximately 8 centimetres in height, 36 smaller cannabis plants between 20–30 centimetres in height and 100 larger cannabis…

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 Phan v The King

Details

AGLC: Phan v The King [2023] NZHC 2009
Case: [2023] NZHC 2009
Decision Date: 31 July 2023

CaseChat Overview and Summary

Ms Phan appeals against her sentence of two years and nine months’ imprisonment for four charges of permitting premises to be used for cannabis cultivation. The appeal raises the question of whether the sentence was manifestly excessive. The High Court found that the sentence was indeed manifestly excessive. The Court concluded that the starting point of four years’ imprisonment was too high and disproportionate to the gravity of Ms Phan’s offending. The Judge’s view of the seriousness of the offending was impacted by inferences he was not entitled to draw from the summary of facts. The Court found that each offence justified a starting point of 18-20 months’ imprisonment. However, the Court agreed that the totality of the offending required a cumulative sentence. The Court considered a starting point of three years’ imprisonment appropriate. This took into account Ms Phan’s greater culpability on account of her permitting four premises to be used but did not involve consideration of inferences that should not be drawn from the summary of facts. The Court applied discounts of 15 per cent (guilty plea), 20 per cent (personal circumstances) and 5 per cent (mitigating background factors). The end result was a term of imprisonment of between 21-22 months. The Court concluded that a sentence of imprisonment would be disproportionately severe both on Ms Phan and her children. The Court imposed a sentence of 11 months of electronically monitored home detention.

Orders