Thaivichit v The King
[2024] NZHC 689
•25 March 2024
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 the Crown. I agree that there is no prejudice. Leave is granted.
[11] At the heart of the appeal is the issue of whether the Judge failed to correctly apply the totality principle, resulting in a sentence that was manifestly excessive. The appellant argues that the Judge should have considered whether the end sentence, in combination with the sentence already served for the Auckland offending, was wholly out of proportion to the gravity of the overall offending. She seeks a substituted sentence of six years and three months’ imprisonment.
[12] The respondent submits the total sentence was not manifestly excessive, as a higher starting point of 11 years was available, no uplift was given for the appellant’s additional GBL drug offending, the six-month uplift for offending on bail was light, and the 20 per cent discount for her guilty plea was generous.
Background
[13] On 22 December 2014, whilst executing a search warrant on Ms Thaivichit’s motel room, police found drug paraphernalia, methamphetamine, and a mobile phone that indicated Ms Thaivichit regularly supplied methamphetamine commercially. She was charged with drug offences and was granted bail on 27 February 2015.
[14] Whilst on bail, Ms Thaivichit began supplying methamphetamine again, which was discovered as part of a drug surveillance operation that identified a number of people involved in the manufacture and supply of illegal drugs. On 19 August 2015, she was charged in relation to this offending and remanded in custody.
[15] On 21 December 2015, Ms Thaivichit was sentenced for the Auckland offending, after pleading guilty to the charges. She received an uplift of six months for previous drug offending and breaches of release conditions, as well as a 10 per cent discount for work done in prison and a further 15 per cent for her guilty pleas. This resulted in a sentence of two years and three months’ imprisonment.
[16] Ms Thaivichit, after some delay, eventually pleaded guilty to the charges in relation to the Manukau offending, as did four of her co-defendants. Following a
disputed facts hearing, Judge Earwaker issued a judgment on 3 April 2018.7 The Judge found that Ms Thaivichit possessed a total of 856.2 grams of methamphetamine for supply, which she would receive from one of the manufacturers and supply to others in amounts ranging from one to 56 grams.8
District Court Decision
[17] In sentencing Ms Thaivichit, Judge Earwaker found the amount of methamphetamine resulted in her offending falling within band 4 of the guideline case Fatu.9 The Judge set an initial starting point of 10 and a half years, taking into account that Ms Thaivichit was not the principal supplier, but an on-supplier for one of the other defendants.
[18] An uplift of six months was found to be an appropriate reflection of her previous convictions, which were for similar drug-related offences in 2012, 2014, and 2015. The Judge rejected arguments that because Ms Thaivichit had served her entire sentence for her 2015 offending, no uplift was appropriate. He found this ignored the fact that she was not eligible for parole because she had offended whilst on bail.
[19] The Judge accepted that Ms Thaivichit was genuinely remorseful and that she had attempted to address the cause of her offending whilst in custody, which distinguished her from the other defendants. This resulted in him granting an eight- month discount. In percentage terms that equated to just over six percent.
[20] Lastly, the Judge gave a further discount of 20 per cent for the fact a 12 week trial was avoided due to the defendants entering guilty pleas. This resulted in a final sentence of eight years and three months imprisonment. The Judge rejected a minimum period of imprisonment, based on the totality of the information about Ms Thaivichit, the circumstances and the end sentence.
7 R v Le [2018] NZDC 5960.
8 At [9.2]–[9.3].
9 R v Fatu [2006] 2 NZLR 72, (2005) 22 CRNZ 410 at [34].
Submissions
Appellant’s submissions
[21] Mr Stevens for the appellant submits that the totality principle should have been applied by Judge Earwaker when considering an appropriate end sentence for the Manukau offending. The appellant argues that:
(a)The Judge failed to “stand back” and consider whether the effective end sentence of 10 and a half years’ imprisonment was proportionate to the overall offending,
(b)the small quantity of methamphetamine involved in the Auckland offending meant an uplift for those prior convictions was not required,
(c)the overall sentence of 10 and a half years was manifestly excessive,
(d)an overall sentence in the region of eight years and three months’ imprisonment would be appropriate for the Auckland and Manukau offending combined.
(e)an end sentence in the region of six years and three months’ imprisonment should be substituted.
Respondent’s submissions
[22] Ms Clark for the respondent accepts that the Court may consider that the Judge was obliged to take totality into account, however the respondent argues that the final sentence was clearly within range.
[23]The respondent submits that:
(a)a higher starting point of 11 years was available,
(b)the sentencing Judge applied no uplift for supplying the Class B controlled drug GBL,
(c)the uplift of six months for previous offending would have remained appropriate if totality had been taken into account, and
(d)the guilty plea discount of 20 per cent was generous given the trial was about to commence and a disputed facts hearing was still required.
Approach to appeal
[24] This appeal is brought under ss 244 and 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion and must only be allowed if the court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.10 The court must dismiss the appeal in any other case.11
[25] In an appeal against sentence, the focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.12 An appellate court must therefore exercise an appropriate degree of restraint and will intervene only where the sentence imposed is “manifestly excessive” on the basis of some material error so that a different sentence should be imposed.13 An appellate court will not intervene unless a sentence was outside the range available to the sentencing Judge.14
Analysis
Applicability of totality principle
[26] Section 85(2) of the Sentencing Act 2002 provides that if cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending. In Ogden v R, the Court remarked that there is ample authority that an overall totality assessment should be made where
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
11 Criminal Procedure Act 2011, s 250(3).
12 Ripia v R [2011] NZCA 101 at [15]; and Tutakangahau, above n 10, at [36].
13 Kumar v R [2015] NZCA 460 at [81]; and Tutakangahau, above n 10, at [32].
14 Tutakangahau, above n 10, at [36].
an offender is before the Court whilst serving a term of imprisonment for separate offending.15
[27] The appellant relies on the decision in Haywood v R.16 That case concerned an appeal against a sentence of six and a half years for aggravated burglary and assault with intent to rob, which was imposed cumulatively on a sentence of seven years for supply of methamphetamine. The Court in Haywood found the question that should have been considered by the sentencing Judge was whether the overall sentence of 13 and a half years would be wholly out of proportion to the gravity of the offending, given the two incidents were connected, as the burglary occurred whilst the appellant was on bail for the supply of methamphetamine charges.17 The appeal was allowed, with the sentence for the aggravated burglary and assault charges reduced to five years’ imprisonment.18
[28] The respondent relied heavily on the decision in Skipper v R,19 which related to an appeal against a sentence of four years’ imprisonment for two burglary offences, after completing a prison sentence for dishonesty offences. Although the Court accepted that the completion of the first sentence before the second sentencing was not itself an automatic bar to applying the totality principle, it found that “it may tell against it.”20 The Court distinguished an earlier decision R v Fissenden21 where the totality principle was applied despite a first sentence having already been served. It distinguished that case on the basis that the offending in Skipper was unrelated, occurred after the offending for which the first sentence was given and also occurred while the appellant was on bail.22 The appeal was therefore dismissed.
[29] The purpose of the totality principle is to ensure that sentencing for multiple offences in the same sequence or series of offending takes into account the totality of
15 Ogden v R [2016] NZCA 214 at [64].
16 Haywood v R [2015] NZCA 551.
17 At [11].
18 At [16].
19 Skipper v R [2011] NZCA 250.
20 At [35].
21 R v Fissenden CA364/95, 21 February 1996.
22 At [36].
the offending, rather than considering each offence individually.23 The key question is often described as being whether the offending in question can properly be described as being a connected series of events.
[30] The Auckland offending and Manukau offending were clearly connected, both in nature and time. Both concerned methamphetamine related offending, with the sentencing Judge for the Auckland offending noting that the items found in the motel room suggested that the appellant was commercially supplying methamphetamine.24 The appellant was addicted to methamphetamine and offended to feed that addiction.
[31] The Manukau offending also occurred whilst the appellant was on bail for the Auckland offending, with the dates of the two sets of offending being less than six months apart.
[32] The fact that the first sentence had been completed by the time the second sentence had been served, was due to issues arising from the large number of co-defendants. I am satisfied that on the particular facts of this case, the fact that the first sentence was completed before the second sentence was imposed should not “tell against” the applicability of the totality principle.
[33] I note that there are clear factual similarities with Haywood, including the significant sentences imposed, the connection between the offending, and the fact the second set of offending was committed whilst on bail for first. This supports the conclusion that the totality principle should apply to these two sets of offending.
Was the totality principle properly applied?
[34] It was common ground that the sentencing Judge had not expressly considered whether the Auckland and Manukau offending were part of a connected series of events such as to require specific consideration of the totality of the combined sentence that should be imposed for the two sets of offending. It is understandable that, in the context of sentencing a large number of defendants for many different offences arising
23 R v Bradley [1979] 2 NZLR 262 (CA); R v Strickland [1989] 3 NZLR 47, (1989) 4 CRNZ 632 (CA).
24 Thaivichit, above n 6, at [15].
out of a major police investigation, and the time that had passed since the appellant had been sentenced for the Auckland offending, that this might have been overlooked.
Was sentence wholly out of proportion?
[35] In addition to relying on the totality principle, the appellant submits the Judge should not have applied an uplift of six month’s for offending whilst on bail. The appellant notes she was facing ongoing addiction issues, and that given the Auckland offending concerned a relatively low quantity of 2.7 grams of methamphetamine, that offending didn’t require any uplift to the starting point of 10 years and six months.
[36] The appellant further submits that when applying a discount of 20 per cent to the overall offending, the end sentence of eight years and three months’ imprisonment would have been appropriate if Ms Thaivichit had appeared for sentence on the Auckland and Manukau charges together.
[37] The appellant also draws a comparison with her co-defender Mr Piamthong, whose starting point of 13 years for supplying 1,432.5 grams of methamphetamine is lower than her overall starting point of 14 years for 858.9 grams of methamphetamine across both sets of offending.
[38] The respondent’s case before me is that, notwithstanding the failure to expressly consider the totality principle, the sentence should be upheld because it was not wholly out of proportion. The respondent submits the final total sentence of 10 and a half years’ imprisonment was within range. The respondent argues that a higher starting point of 11 years was available, and an uplift for the supply of the Class B drug GBL was also available. Counsel relies on R v Davies,25 where the defendant had supplied 700 grams of methamphetamine and a little less than two kilograms of ContacNT, which contained 810 grams of pseudoephedrine. Mr Davies received a starting point of 11 years and an uplift of 18 months for Class B controlled drug offending.26
25 R v Davies [2015] NZHC 598.
26 At [17]–[18].
[39] The respondent also submits that a greater uplift than six months was available for the previous relevant convictions and offending while on bail. The respondent cites Skipper v R, where an uplift of 18 months for less serious offending of burglary and dishonesty offences was found to be justified.27 Lastly, it is submitted that the guilty plea of 20 per cent was generous, given that it was entered very close to the intended trial date, a dispute facts hearing was still required, and the Crown had very strong evidence due to their interception of cellphone communications.
Analysis
[40] It is clear that an uplift for the GBL dealing was not available. Unlike in Davies, where a very large quantity of a Class B drug was supplied, here the appellant only supplied GBL on six occasions during the relevant period, with the amount involved not stated. In the disputed facts judgment, the Judge noted the Crown submitted that no uplift was required as the GBL dealing was “inextricably linked to her methamphetamine dealing and was incidental to it.”28 I agree with that conclusion.
[41] However, I don’t accept the appellant’s submission that the six month uplift for prior offending was too high. The appellant had a relevant history of offending prior to the Auckland offending and of offending on bail which this uplift properly reflects.
[42] I acknowledge that the guilty plea discount of 20 per cent was generous. However, the Supreme Court in Hessell v R made clear that the timing of the guilty plea is not to be determinative of the discount given, and that the overall circumstances in which the plea was made should be considered.29 However, it also made clear that the policy reasons behind guilty plea discounts primarily concern the cost savings to the judicial system.30 Here, the context in which the guilty pleas were entered was important. While the evidence against the appellant could be described as strong, there was significant public benefit to be obtained in avoiding a complex, 12 week long, multi-defendant trial. The Judge had also specifically emphasised the point that,
27 Skipper, above n 6, at [27].
28 Le, above n 7, at [9.7].
29 Hessell v R [2010] NZSC 135.
30 At [45].
notwithstanding the closeness in time to the trial, significant discounts would still be available for guilty pleas.
The correct approach
[43] In arriving at the starting point, when properly applying the totality principle, the Judge should have asked what the appropriate starting point should have been for the Auckland and Manukau offending taken together.
[44] I accept that the Auckland offending was of a similar nature to the Manukau offending and that there should be an uplift. However, it only involved some
2.7 grams of methamphetamine. When that is added to the quantity of methamphetamine in the Manukau offending, that increases the total from 856.2 grams of methamphetamine to 858.9 grams.
[45] Taking the starting point that the Judge used of 10 years and six months, I would add six months for the Auckland offending to get to 11 years or 132 months. I apply the same percentage discounts that the Judge did. Those discounts totalled 26 percent. That reduces the 132 months by some 34.32 months to 97.68 months or approximately eight years and two months. From that is to be deducted the sentence of two years and three months or 27 months for the Auckland offending which the appellant served in full. That leaves an end sentence of 70.68 months or roughly five years and 11 months.
Outcome
[46]The application for leave to appeal is granted.
[47]The appeal is allowed.
[48] The sentence of eight years and three months is quashed and a sentence of five years and eleven months substituted.
Churchman J
Solicitors:
Crown Law Office, Wellington for Respondent
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