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Amos v Police

Amos v Police

Case [2023] NZHC 1148 12 May 2023

Immigration & Refugee Law

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2023-485-13

CRI-2023-485-14 [2023] NZHC 1148

BETWEEN
ANTHONY MARK AMOS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 9 May 2023

Counsel:

M W Anderson and K J Paterson for Appellant S Deng for Respondent

Judgment:

12 May 2023

JUDGMENT OF RADICH J

Introduction

[1] On 29 October 1993, Mr Amos pleaded guilty to and was convicted of one charge of cultivating cannabis.1 He was sentenced to a term of four months’ imprisonment on 22 November 1993 in the Lower Hutt District Court. On 22 August 2002, Mr Amos was found guilty of and convicted on a charge of possessing cannabis for supply.2 He was sentenced to a term of four months’ imprisonment on 18 September 2002 in the Wellington District Court. Both sentences have been served.

[2] On 11 December 2014 the Migration Amendment (Character and General Visa Cancellation) Act 2014 was enacted in Australia. It restricted the ability of foreign nationals with criminal convictions to enter Australia without first seeking permission

1 Misuse of Drugs Act 1975, s 9 (maximum penalty 7 years’ imprisonment).
2 Section 6 (maximum penalty 8 years’ imprisonment).

AMOS v NEW ZEALAND POLICE [2023] NZHC 1148 [12 May 2023]

from immigration authorities. Mr Amos was returned to New Zealand from the border at Melbourne Airport in 2016 because, as a result of the 2014 Act, he was deemed to be a “behaviour concern non-citizen”, having been convicted of two or more crimes resulting in sentences of imprisonment for periods totalling at least one year.3

[3] Mr Amos now seeks leave to appeal out of time from his 1993 and 2002 sentences, which have a combined length of 13 months’ imprisonment. In addition, he seeks leave to adduce further evidence through an affidavit dated 26 April 2023. The Crown opposes the application for leave to appeal and, if leave is granted, it opposes the appeal. But it does not oppose the application to admit Mr Amos’ affidavit evidence.

Background

Offending

[4] The Court file for Mr Amos’ 1993 cultivation charge has now been destroyed. There is only one document available to the Court which relates to that offending – a charging document of 22 May 1993. It records that Mr Amos was charged with cultivating cannabis on 22 October 1993. Mr Anderson has submitted that, because there was no adjacent charge for cannabis supply, it is reasonable to assume the amount of cannabis involved was below the presumption for supply. However, it is just not known how much cannabis was involved.

[5] The charging document records that Mr Amos was refused bail on (as appears to be the case from the handwritten annotations on the charging document) 29 October 1993, but at a point in November 1993, bail was granted. An arrest for breach of bail conditions is recorded on the document in November 1993 but the notation on the document indicates “BTC” or ‘bail to continue’.

[6] The…

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.

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Details

AGLC: Amos v Police [2023] NZHC 1148
Case: [2023] NZHC 1148
Decision Date: 12 May 2023

CaseChat Overview and Summary

Amos v Police [2023] NZHC 1148 is a case where Anthony Mark Amos sought leave to appeal out of time from his 1993 and 2002 sentences for cultivating and possessing cannabis for supply, respectively. The primary issue was whether the court should grant leave to appeal the sentences, considering the significant delay and the consequences of the sentences on Amos's ability to travel to Australia. Amos argued that his sentences were excessive and that if he were sentenced today, he would likely receive non-custodial sentences. The court considered various factors, including the reasons for the delay, the merits of the appeal, prejudice to the Crown, and the interests of justice. The court found that the reasons for the delay were not particularly strong and that the merits of the appeal were not overwhelming. Additionally, the court held that it was not appropriate to amend a sentence on appeal to take account of changes in another country's laws. The court concluded that it was not in the interests of justice to grant leave to appeal, and the appeal against sentence was dismissed.

Orders