Thaivichit v The King - [2024] NZHC 689

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-135

[2024] NZHC 689

BETWEEN
PHITSAMAY NING THAIVICHIT

Appellant

AND

THE KING

Respondent

Hearing: 11 March 2024

Appearances:

D B Stevens for Appellant H G Clark for Respondent

Judgment:

25 March 2024

JUDGMENT OF CHURCHMAN J

Introduction

[1] This appeal was originally heard on 11 March 2024 by a Division of the Court of Appeal of which I was a member.

[2] During the course of preparing the judgment it was discovered that a jurisdictional issue arose as to whether the High Court or Court of Appeal had jurisdiction.

[3] The reason for that is Ms Thaivichit herself had not elected trial by jury but her co-defendants had. In terms of s 139 of the Criminal Procedure Act 2011 (the Act) this meant that the trial had to proceed before a jury. However, prior to trial, all the defendants pleaded guilty, so no jury trial took place.

THAIVICHIT v R [2024] NZHC 689 [25 March 2024]

[4] Section 247(1)(b)(ii) of the Act provides that the first appeal Court is the High Court if the sentence is for a category 3 offence and the convicted person did not elect a jury trial.

[5] A minute was sent to the parties on 18 March 2024 seeking submissions on the jurisdictional issue. The parties accepted that the High Court was the appropriate court. Counsel also indicted they agreed that I could determine the appeal on the basis of the submissions already provided without the need for an oral hearing.

[6] A notice of appeal was filed on 25 March 2024. I grant leave for the appeal to be filed out of time.

The District Court decision

[7] On 11 May 2018 the appellant, Ms Phitsamay Ning Thaivichit, was sentenced by Judge Earwaker in the District Court at Manukau1 (the Manukau offending) to eight years and three months’ imprisonment on charges of possession of methamphetamine for supply,2 supplying gamma-hydroxybutyrate (GBL),3 supplying material for the manufacture of methamphetamine4 and possession of material for the manufacture of methamphetamine.5

[8] The charges relate to Operation Phantom, an investigation into large scale manufacture and distribution of methamphetamine by an Auckland drug syndicate.

[9] The appellant was previously sentenced in 2015 in the District Court at Auckland to two years and three months’ imprisonment for possessing methamphetamine for supply and possessing utensils for the purpose of consuming drugs (the Auckland offending).6 She had completed her sentence without parole by the time she was dealt with on her new charges in 2018.

1      R v Nuansri [2018] NZDC 9277 [Decision on appeal].
2      Misuse of Drugs Act 1975, ss 6(1)(f) and (2)(a).
3      Sections 6 (1)(c) and (2)(b).
4      Sections 12 A(1)(a) and (3)(a).
5      Sections 12 A(2)(a) and (3)(b).     The District Court references are CRN18092500250 and CRN18092500253.
6      R v Thaivichit [2015] NZDC 25372.

[10] The appellant seeks leave to appeal her sentence out of time. That is not opposed by…

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 Thaivichit v The King

Details

AGLC: Thaivichit v The King [2024] NZHC 689
Case: [2024] NZHC 689
Decision Date: 25 March 2024

CaseChat Overview and Summary

In this case, Phitsamay Ning Thaivichit appeals against her sentence for multiple drug-related offences. The appeal was originally heard by a Division of the Court of Appeal, which discovered a jurisdictional issue concerning whether the High Court or Court of Appeal had jurisdiction. The appeal was subsequently transferred to the High Court. Thaivichit argues that the Judge failed to correctly apply the totality principle, resulting in a sentence that was manifestly excessive. She contends that the end sentence, in combination with the sentence already served for previous drug-related offences, was wholly out of proportion to the gravity of the overall offending. Thaivichit seeks a substituted sentence of six years and three months’ imprisonment.

The court found that the totality principle should have been applied, as the Auckland and Manukau offending were clearly connected, both in nature and time. Both involved methamphetamine-related offences, and the Manukau offending occurred while Thaivichit was on bail for the Auckland offending. The court found that the sentence of eight years and three months’ imprisonment was manifestly excessive, and a sentence of five years and eleven months was substituted.

The court also found that the uplift for previous offending was appropriate, but the guilty plea discount was generous. The court acknowledged that the timing of the guilty plea was not determinative of the discount given, but the overall circumstances in which the plea was made should be considered. The court found that there was significant public benefit to be obtained in avoiding a complex, multi-defendant trial. The court also found that an uplift for the GBL dealing was not available, as the amount involved was not stated, and the GBL dealing was inextricably linked to the methamphetamine dealing.

In conclusion, the appeal is allowed, and the sentence of eight years and three months is quashed and a sentence of five years and eleven months is substituted. The application for leave to appeal is granted.

Orders