R v Pham

[2019] NZHC 2115

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-092-538

[2019] NZHC 2115

THE QUEEN

v

TAM VAN PHAM

Hearing:

28 August 2019

Appearances:

L Radich for Crown

A Holland for Defendant

Sentence:

28 August 2019

SENTENCING NOTES OF WALKER J

R v PHAM [2019] NZHC 2115 [28 August 2019]

Summary

[1]    Tam Van Pham, you appear for sentence before me having pleaded guilty to possession of a methamphetamine pipe. Your guilty plea was entered on the morning of your trial in this Court for various drug related offences.1 A jury acquitted you on those other charges.

[2]    The Crown submits that a sentence of supervision is appropriate. In short, the reasons are because of your concerning attitude to your drug use, as recorded in the Pre-Sentence report prepared after interview with you.

[3]    Your counsel, Mr Holland, submits that you should be convicted and discharged. Again, the reasons for this can be concisely stated. Mr Holland points out that you have already spent more than 12 months on restrictive bail conditions and time in custody on remand.

Sentencing approach

[4]    Sections 7 and 8 of the Sentencing Act 2002 set out the purposes and principles of sentencing that I must consider. A starting point is based on the offending and adjusted to reflect relevant aggravating or mitigating features personal to you.2

Facts

[5]    On 16 January 2018, Police executed a search warrant at your home address where you live with your partner and your two children. In your vehicle, Police located a glass pipe used for consuming methamphetamine. You have admitted past use of methamphetamine on what I would consider to be a regular basis.

Pre-Sentence Report

[6]    This is your fourth court appearance for sentencing since 2012, although the historic offences are minor. The Pre-Sentence report states that you fail to realise the

1      Misuse of Drugs Act 1975, ss 13(1)(a) and (3). Maximum penalty one year's imprisonment and a fine of $500.

2      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [73].

impact of your previous drug use and have no insight into your offending or motivation to change. Mr Holland urges me to consider that this report does not reflect the situation today. You said that your drug use is a stress coping mechanism. You are adamant that you can manage your drug use. You seem reluctant to address this issue. You spoke to the report writer about the benefits of drug use and claim that it helps you – or in the past, helped you to stay up in order to work and to reduce your stress level. When pressed at the interview, you said you use drugs “only on special occasions like parties” and did not consider your drug use as problematic.

[7]    The view of the report writer at that stage, is that should you fail to address your drug use and see it in a different light, your risk of reoffending is increased. That is a conclusion supported by common sense.

[8]    The report writer therefore recommended a sentence of supervision to support you to address these issues. It is unfortunate that there is potentially a language barrier stopping you from taking full advantage of programmes to assist.

Decision

[9]    Mr Pham, you need to come to grips with the impact of drug offending on you and your family, and this is your chance to do so. While I accept Mr Holland’s submission that no punitive sentence is appropriate given the context and the restrictions you have been living under, I do consider that a sentence of supervision is appropriate. My reason is that your interests, the interests of your family who depend on you and the community are best served by a sentence of supervision.

[10]   I emphasise that I intend this sentence to assist you and not to punish you. I impose it to assist you to avoid lapsing back into any form of reliance on drug taking with all the risks and unhappy consequences which flow from that. I am satisfied that this is the best chance of reducing the likelihood of further offending. I urge you to think about the serious risks you continue to expose yourself to if you do not take this opportunity to better your life. You gave evidence in Court that you know that methamphetamine use is bad. I ask you to think hard about your situation and the impact on your children.

Result

[11]   Mr Pham, if you would stand please. I impose a sentence of nine months’ supervision with the special conditions outlined by the Department of Corrections in the Pre-sentence Report, with the exception that I delete the reference to possession, consumption or use of alcohol in Condition number one (1). You may stand down.

............................................

Walker J