R v Phan HC Christchurch CRI 2010-009-6922

[2010] NZHC 1127

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-009-006922

REGINA

v

TRI DUY PHAN

Hearing:         1 July 2010

Counsel:         A Raj and C J Lange for Crown

D N Bunce for Prisoner

Sentence:       1 July 2010

SENTENCE OF PANCKHURST J

Mr Phan:

[1]      You have pleaded guilty to importing heroin into New Zealand on 1 May

2010.  That day you arrived at Christchurch from Singapore.  On 3 May you were admitted  to  Christchurch  Hospital  and  the  following  morning,  at  3  am,  you underwent surgery for a bowel problem.  The surgery revealed that the cause of your problem was a package of heroin, contained in condoms, which you had swallowed for the purposes of importation.

[2]      Following the surgery you told hospital staff that you were an intravenous user of heroin.  You said that you had swallowed the drug on 30 April before leaving Vietnam and that you had done so to have heroin for your own use and because it

was cheaper to purchase there than in New Zealand.

R V TRI DUY PHAN HC CHCH CRI-2010-009-006922  1 July 2010

[3]      A plea of guilty to this charge was entered on 24 May, 10 days after the charge was laid.  It follows that you are entitled to a one-third deduction from the sentence which would otherwise be appropriate.  The heroin has not been analysed and hence its purity is unknown.

[4]      You are aged 26 years and as far as is known you are a first offender.  You were in New Zealand to study English.  You spent about eight months here in 2009. In December last year you returned home to Vietnam but came back to New Zealand in March staying, however, for only seven days.  You then made the further journey I have already mentioned, arriving back here on 1 May with this heroin package.

[5]      During your time in New Zealand it is said that your study has been only sporadic.  Your attendance at the polytechnic has been irregular.  You have returned to Vietnam on a number of occasions, ostensibly on account of your mother’s ill- health, but the credibility of that explanation concerns me.  In any event your student visa has been or will be revoked and you face deportation at the end of any sentence.

[6]      I have raised with your counsel the question of reparation since the hospital expended over $28,000 on your surgery.   This, in my view, is plainly an expense which  was  caused  through  the  offence  of  importing  heroin  to  which  you  have pleaded guilty.

[7]      After taking further instructions from you, Mr Bunce has indicated that he does not consider it is realistic for you to make reparation, whether through family resources or by virtue of a student sickness insurance policy which you apparently hold.  I accept his view that reparation is not realistic.

[8]      With reference to sentence your counsel accepts that a term of imprisonment is inevitable.   Such a sentence is required in cases involving class A drugs unless there are particular circumstances which dictate otherwise.

[9]      You have been in custody now for five weeks and Mr Bunce indicated that this has been particularly difficult for you, given your nationality and your inability

to speak English to any extent.   You have also apparently lost fees paid for your study which will not be refundable, despite your being deported.

[10]     Mr Bunce asked that you be sentenced to a short term of imprisonment. There is some difference in relation to sentences imposed for cases of the present kind.  I have been referred to a number of cases, some of which are 20 years or more of age.  To my mind the outcomes are variable and there is some inconsistency of approach.   To my mind the principal features of your case are that you are an admitted user of heroin.   The quantity imported. .3 of a gram, was small and the heroin is of unknown purity.

[11]   In my view the appropriate starting-point in your case is 12 months’ imprisonment.  You are entitled to a reduction of four months on account of your plea and I also make allowance for the fact that you are a first offender and a stranger to this country, for whom imprisonment will be particularly difficult.

[12]     The end sentence, Mr Phan, is six months’ imprisonment.  You are sentenced accordingly and I direct that the heroin be disposed of.

Stand down.