Amos v Police

[2023] NZHC 1148

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 Court file for the 2002 charge of possessing cannabis for supply has been destroyed (or is otherwise unable to be located) as well. However, for the 2002 offending, the sentencing notes of the District Court Judge are available. From the

3      Australian Government Department of Home Affairs “Special Category Visa (SCV)” notes it is known that Mr Amos was found with 840 grams of cannabis leaf to a value, estimated by the Judge, of approximately $1,000. In the Judge’s view, the quantity and quality of the cannabis was such that (given the likelihood of it deteriorating if not sold and if used by just one person) the prospect that it was for sale was clear.

Personal background

[7]    Mr Amos is 63 years old. He was aged 34 at the time of the 1993 offending and 43 at the time of the 2002 offending.

[8]    He has a total of 24 convictions, entered between 1973 and 2023. They include convictions for drug-related, dishonesty and driving offending. He has three convictions for unlawful possession of a weapon or ammunition and two convictions for common assault. For this offending Mr Amos has received as sentences, variously, fines, disqualifications from driving, supervision, community work and the two short terms of imprisonment that are in issue in these proceedings.

[9]    Before the 1993 conviction, Mr Amos had another conviction for cultivating cannabis in 1992 (for which he was sentenced to a fine of $350) and a conviction for procuring or possessing cannabis seed in 1982 (for which he was sentenced to a fine of $100).

[10]   Mr Amos has filed an affidavit in this appeal which, for reasons given below, I am prepared to admit. It explains, in the first instance, the reasons for the appeal. Mr Amos has referred to having family in Australia and to having visited them a number of times in the past. On his most recent visit in 2016, he was returned to New Zealand upon arrival in Melbourne. He has brought the appeal only now because, as he puts it, he did not realise that it is possible to do so until speaking with his lawyer about another matter recently. Mr Amos’ evidence goes on to describe his offending. He cannot remember the amount of cannabis to which the 1993 conviction related. He recalls it as being for personal use and of a quantity that was similar to his 1992 offending. He recalled others in prison being surprised that he had not received a fine or a community sentence.

[11]   Mr Amos, in referring to his 2002 conviction and sentence, has indicated that he “mostly” served home detention instead of imprisonment, spending a couple of months in prison and serving the remainder of his sentence at home. Records are not available so this is the only information that is available on the point.

Sentencing notes for the 2002 offending

[12]   As mentioned already, the District Court Judge found that the 840 grams of cannabis involved was intended for sale, noting that the circumstances demonstrated that Mr Amos “would probably make tinnies in small quantities and sell them on a casual basis for profit”.4 The Judge commented that the level of prospective dealing was consistent with the jury’s verdict.5

[13]   The Judge referred to R v Terewi,6 R v Edbrooke and R v Harris for guidance in setting the starting point for the offending.7 Terewi, the tariff case at the time, set the lowest level of sentencing for commercial cultivation of cannabis at between two to four years. The Judge concluded that this offending could be distinguished from Edbrooke because, in that case, the appellant sold “a few tinnies to friends” which was not considered to have been a commercial purpose.8 The Judge referred to Harris to illustrate a modest level of dealing where a short sentence of imprisonment was considered appropriate, notwithstanding the categories set out in Terewi for cultivation.9

[14]   The starting point was expressed as being “in the region of about 12 months imprisonment”. Considering the deterrent principle of sentencing and personal factors, particularly that Mr Amos was open to counselling and had said that he had stopped using cannabis, the Judge imposed an end sentence of nine months’ imprisonment (meaning the discount for personal factors was 25 per cent). Leave was granted to apply for home detention.10

4      R v Amos DC Wellington T013229, 18 September 2002 at [3].

5 At [3].

6      R v Terewi [1999] 3 NZLR 62 (CA).

7      R v Edbrooke [2000] 3 NZLR 360 (CA); and R v Harris CA283/99, 27 September 1999.

8      R v Amos, above n 4, at [5].

9 At [5].

10 At [9].

Legal principles

Approach to appeal and procedure

[15]   Under s 397 of the Criminal Procedure Act 2011, any appeal in a proceeding commenced before 1 July 2013 must be dealt with under the law in force at the time.11 At the times at which Mr Amos was convicted and sentenced in 1993 and 2002, the Summary Proceedings Act 1957 governed the appeal process.

[16]   The appellant was required to file his notice of appeal within 28 days after his sentence and, therefore, it is well out of time.12 The court could, under s 123 of the 1957 Act, extend the time for appeal. The touchstone for granting an application to extend time for an appeal was the interests of justice in the particular case.13 More recent authorities have acknowledged that extensions of time applications will often reduce to the reasons for the delay and the merits of the proposed appeal.14 Other relevant criteria include the strength of the proposed appeal; the practical utility of the remedy sought; the length of and reasons for delay; floodgates considerations; and the absence of prejudice to the Crown.15

[17]   If leave to appeal out of time is granted, the appeal is to proceed by way of rehearing.16 The court had full discretionary powers to hear and receive further evidence, if that further evidence could not in the circumstances reasonably have been adduced at the hearing.17 In the case of an appeal against sentence, the court may confirm the sentence or:18

(b)If the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or if the High Court is

11 The Crown, fairly, referred to R v KJB [2007] NZCA 292 at [23], which dealt with the situation in which a Court is sentencing for offending which took place some decades earlier. The Court was making the point there that starting points and maximum penalties must be taken from the time of the offending but that the Court could then apply current methodologies for sentencing. However, in this case Mr Amos was sentenced in the same era as that in which the offending took place and so it would be wrong to use principles that did not apply at the time.

12 Summary Proceedings Act, s 116.

13 R v Knight [1988] 1 NZLR 583, (1997) 15 CRNZ 332 (CA).

14     Mikus v R [2011] NZCA 298 at [26], citing R v Slavich [2008] NZCA 116 at [14].

15     R v Knight, above n 13, at 589, 338.

16     Summary Proceedings Act, s 119(1).

17     Section 119(3).

18     Section 121(3).

satisfied that substantial facts relating to the offence or to the offender’s character or personal history were not before the Court imposing the sentence, or that those facts were not substantially as placed before or found by that Court, either—

(i)Quash the sentence and either pass such other sentence warranted in law (whether more or less severe) in substitution therefor as the High Court thinks ought to have been passed or deal with the offender in any other way that the Court imposing sentence could have dealt with him on the conviction; or

(ii)Quash any invalid part of the sentence that is severable from the residue; or

(iii)Vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it.

[18]   The approach to be taken to appeals under s 121(3) was explained in Yorsten v Police where the Court said:19

(a)There must be an error vitiating the lower Court’s original sentencing discretion.

(b)The appeal must proceed on an ‘error principle’.

(c)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(d)It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[19]   The appeal court will not intervene where the sentence is within a range that can properly be justified by accepted sentencing principles, with the exception of those cases recognised by the Court of Appeal in Tutakangahau v R in which something has gone wrong to such an extent as to require a correction, albeit that the sentence imposed is within range.20

19     Yorston v Police HC Auckland CRI 2010-404-164, 14 September 2010 at [13]–[15].

20     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

Sentencing options at the time of the historic sentences

[20]   At the time of Mr Amos’ 1993 conviction, several community-based sentences were available to the sentencing Judge. They did not include home  detention. Section 29 of the Criminal Justice Act 1985 provided for a sentence of community service where an offender was convicted for an offence punishable by imprisonment.

The Court could order a sentence of this type if it was satisfied:21

(a)That the sentence is appropriate having regard to the offender’s character and personal history, and to any other relevant circumstances:

(b)That the offender understands the purpose and effect of the sentence and consents to its imposition:

(c)That suitable authorised service is available for the offender to perform for the purposes of the sentence.

[21]   Pursuant to s 37 of the 1985 Act, an offender who was 15 years of age or more and who was convicted of an offence punishable by imprisonment could be sentenced to a term of periodic detention not exceeding 12 months.

[22]   The Sentencing Act 2002 came into force on 20 June 2002.22 At the time of Mr Amos’ 2002 conviction, home detention was not a stand-alone sentencing option but a form of early release from a penal institution.23 Home detention was defined as “detention under a sentence of imprisonment, in a residence … of an offender who is on home detention under a direction made under section 35 of the Parole Act 2002”.24

[23]   Section 97 of the Sentencing Act required a sentencing Judge to consider granting an offender leave to apply for home detention to the New Zealand Parole Board in certain cases including in cases in which the offender was sentenced to a term of imprisonment of not more than two years.25 The Parole Board had a discretion to

21     Criminal Justice Act 1985, s 31.

22     Sentencing Act Commencement Order 2002 (2002/176).

23     Sentencing Act 2002 (as enacted), s 6(3).

24     Parole Act 2002 (as enacted), s 4 (definition of “home detention”).

25     Sentencing Act (as enacted), s 97(1)(a).

direct an offender, who had applied for home detention, to continue serving his or her sentence on home detention if satisfied of certain grounds.26

Leave to file further evidence

[24]   The general principle for the admission of fresh evidence on appeal is that it must be fresh, credible and cogent.27 As the Privy Council said in Lundy v R:28

The Board considers that the proper basis on which admission of fresh evidence should be decided is by the application of a sequential series of tests. If the evidence is not credible, it should not be admitted. If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence. If the evidence is both credible and fresh, it should generally be admitted unless the Court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction. If the evidence is credible but not fresh, the Court should assess its strength and its potential impact on the safety of the conviction. If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.

[25]In applying these principles to sentence appeals, the Court of Appeal in

Mark v R has put it in these terms:29

(a)If the evidence is both fresh and credible it should be admitted unless the appeal court is satisfied that it would have no effect on the sentence.

(b)If the evidence is credible but not fresh, the appeal court should assess its strength and its potential impact on the sentence. If the appeal court considers that the sentence would be manifestly excessive if the evidence is excluded, then it should be admitted notwithstanding that it is not fresh.

26     Parole Act (as enacted), s 35.

27     See Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34]. The same principles that apply to the receipt of fresh evidence for a conviction appeal apply to a sentence appeal.

28     Lundy v R [2013] UKPC 28 at [119].

29     Mark v R [2019] NZCA 121 at [16].

Assessment

[26]   While Mr Amos challenges, on a principled basis, the sentence imposed in both 1993 and 2002 as being excessive, his written submissions conclude with a request that “the Court weigh up the interests of justice in this case and substitute one or both of Mr Amos’ sentences to a length that combined they are less than 12 months’ imprisonment”. Essentially, Mr Amos is asking the Court to vary his historical sentences to avoid subsequent international immigration consequences.

Fresh evidence

[27]   The evidence contained in Mr Amos’ affidavit could not reasonably have been adduced at an earlier time. The Crown accepts this to be the case. And it accepts that the evidence is credible. It does not oppose its admission on that basis. I grant leave for those reasons.

Leave to appeal and substantive appeals

(a)     Reason for delay

[28]   Mr Amos has explained that he did not bring the appeals at an earlier time because the consequences of his convictions only became apparent in 2016. That was seven years ago. Mr Amos has explained that it was only when he received advice recently on another matter that he became aware of the prospect of appeals from his earlier convictions as a means of dealing with the issues he faces at the Australian border. The Crown says in response that Mr Amos should, reasonably, have known even before 2016 that a conviction could have an impact upon future travel.30 And the Crown says that the delay since 2016, combined with the prejudice it entails, is disqualifying.

[29]   I do not regard the reasons offered for the significant delays as being particularly strong. The delay is so significant that I need to proceed on the basis that I will only entertain an appeal if, as a result of the considerations in the case, it can be

30     Relying on the discussion of this point by the Court of Appeal in McNeil v Police [2018] NZHC 1685 at [22]–[23].

said that exceptional circumstances exist.31 Put another way, the proposed appeal would need to be overwhelming on the merits.32 As the Court of Appeal has put it in Briggs v R:33

The onus is on the appellant to provide sufficient information to satisfy the Court that granting leave is in the interests of justice … Significantly, the Court will only entertain an appeal that is many years out of time in exceptional circumstances. A long delay can be a major factor weighing against leave, and, where unexplained, can be decisive.

(b)     Merits of the leave application and of the substantive appeals

[30]   I will deal with the issues on the leave to appeal application and on the substantive appeals together. I look first at the 1993 sentence. As there is no record of the proceedings, it is appropriate to undertake the assessment on a de novo basis.34 The issue boils down to whether Mr Amos should have a non-custodial sentence for this offending.

[31]   It is Mr Amos’ submission that his sentence of four months’ imprisonment is out of step with R v Dutch, which was the tariff case for this type of offending at the time.35 The respondent in that case pleaded guilty to a charge of cultivation of cannabis and was sentenced to 18 months’ imprisonment. The Crown appealed the sentence on the basis that it was manifestly inadequate. Mr Dutch had cultivated a large plot of cannabis on Takaka Hill in Nelson which was irrigated with a 3,000 litre water tank. The estimated profit from the plantation was about $20,000. The Court  of Appeal set three broad tiers for cultivation sentences based on New Zealand and UK authorities:36

(1)At the lowest level of culpability are cases where the offender has cultivated a few plants on his own property exclusively for his own use. Sentences for cultivation to that extent have not been considered by this Court, as obviously they will normally be dealt with by a fine or some other form of non-custodial penalty in the District Courts.

31     Butcher v R [2015] NZCA 102 at [7].

32     R v Latifi [2017] NZCA 372 at [4], cited in R v Slavich, above n 14, at [14].

33     Briggs v R [2020] NZCA 453 at [15].

34 While, as the Crown says, the absence of a file precludes the ability of the rehearing that is  required, in McNeil v Police, above n 30, the point was made that, in the absence of record of proceedings, the sentence would need to be considered de novo in practical terms.

35 R v Dutch [1981] 1 NZLR 304 (CA).

36 R v Dutch, above n 35, at 308 (emphasis added).

But there will be offences of a more serious kind in relation to non- commercial cultivation where terms of imprisonment or heavy fines will be appropriate. …

(2)The second class of offending involves cultivation for commercial purposes where there will be a large number of plants, running into scores or hundreds, very often growing in a small prepared plot of ground in a remote region, and accompanied by the object of deriving a substantial profit from harvesting and sale. …

(3)The third and most serious class of offence of cultivating cannabis is represented by cases where the cultivation is on a very large scale normally involving 1000 plants or more. This measure of cultivation is sometimes effected by converting a large building into a hot-house equipped with sophisticated cultivation aids of the type used in McNab's case, and where such installations may appear to disclose either intent or ability to use the established system of cultivation as a continuing operation. But cultivation on a similarly large scale may also be achieved by outdoor plantations in remote areas, as in the case of Rose and Finlayson, and we see no difference in the methods employed where the expected harvest is estimated to realise financial returns of $50,000, $100,000 or more.

[32]   The offending in Dutch fell within category two, attracting a starting point between two and four years’ imprisonment as the offender was shown to be the initiator of or a principal party to the venture. The Court concluded that the sentence was manifestly inadequate and replaced it with a sentence of three years’ imprisonment.

[33]   I am unable to accept the appellant’s submission that, because Mr Amos was not charged also with the supply of cannabis, the level of cannabis involved then was below the presumption for supply. I do not know how much cannabis was involved or what the circumstances were. Having said that, I think it is fair to say that, having regard to the Dutch guidelines, the sentence that was imposed for this offending would most likely fall within category 1. It is most unlikely that a sentence of four months could be reached from a starting point of between two and four years’ imprisonment. That would have required a discount in the range of at least 83 per cent.

[34]   As is set out above, offending within category 1 of Dutch would normally be dealt with by a fine or a non-custodial penalty, but the case made the point that offences of a more serious kind – even relating to non-commercial cultivation – could result in a term of imprisonment.

[35]   Mr Amos’ personal circumstances at the time of the offending and new evidence about the consequences of his offending are relevant here. He was 34 at the time of the offending and had previous convictions for cannabis offending, the most significant of which was a previous conviction for cultivating cannabis in 1992 for which he was sentenced to a fine of $350.

[36]   I am not satisfied that there is sufficient merit in the appeal against this sentence to amount – in terms of the principles described in [29] above – to exceptional circumstances or to an appeal that is overwhelming on the merits. There is insufficient evidence to enable a safe conclusion on whether a custodial or a non-custodial sentence was appropriate in these circumstances. Mr Amos’ 1992 conviction for cultivating cannabis likely was an aggravating factor that made a short term of imprisonment a sentencing option.

[37]   On the 2002 sentencing, the appellant says that the District Court Judge erred by taking an imprecise and excessive starting point of 12 months’ imprisonment. He says, also, that it is open to this Court on appeal to record the 2002 sentence as being in part a sentence of home detention to reflect the way in which the sentence was served.

[38]   At this time, there was no tariff case for possession with intent to supply. Terewi,37 which revisited the categories in Dutch, was adopted by the sentencing Judge on the basis that it “sets the lowest level of sentencing for commercial cultivation of cannabis as from two to four years”.38 In Terewi the Court of Appeal held that category one offending consisted of “growing a small number of cannabis plants for personal use by the offender without any sale to another party occurring or being intended” and could be dealt with by a fine or non-custodial sentence and a short term of imprisonment in serious cases.39 Starting points for that category of cases were held to be between two and four years’ imprisonment.

37     R v Terewi, above n 6.

38     The Court of Appeal in R v Grey [2008] NZCA 224 has also confirmed the applicability of Terewi

to possession of cannabis for sale.

39     R v Terewi, above n 6, at [4].

[39]   I do not consider that the Judge erred in setting the starting point for this offending. The Judge adopted a starting point of “about 12 months”, which is well under the two to four year period just mentioned. In doing so, the Judge recognised the low level of prospective dealing (a commercial purpose with a small level of profit40), sentencing principles and Mr Amos’ previous convictions.

[40]   Most of the authorities referred to by counsel for both parties have starting points in the range of 12 to 18 months for similar offending.41 It is relevant to look at the starting points here because of the significant differences in the personal circumstances of each case. Moreover, I do not accept that the Judge erred by adopting an imprecise starting point. The Judge intended to, and did, adopt a starting point of 12 months. As with the 1992 sentence, I do not consider the merits of the appeal are so overwhelming as to warrant an extension of time.

(c)     Prejudice to the Crown

[41]   I agree that there is only very limited prejudice to the Crown in relation to the 2002 sentence. The charge sheet, the conviction history of Mr Amos and the sentencing notes – all of which are available – enable a sufficient analysis to be undertaken on appeal.

[42]   However, there is a significant barrier to extending the time for the 1993 appeal. The prejudice to the Crown is significant. The delay and the lack of material causes the Crown particular difficulty in assessing the merits of the appeal42 There is,

40 R v Amos, above n 4, at [5].

41    In R v Taikato HC Rotorua T023806, 18 March 2003, the appellant was charged with possessing 30 g of cannabis worth $200. A starting point of 15 to 18 months was adopted. In Murphy v Police HC Invercargill AP30/99, 12 October 1999, the appellant was charged with possessing 820g of cannabis worth $7,200 and a starting point of 12 months was adopted. In Higgins v Police HC Tauranga AP29/02, 1 October 2002, the amount of cannabis the appellant was charged with possessing was small and a starting point of 12 months’ was adopted. Counsel also referred to Koko v Police HC Hamilton AP103/96, 16 December 1996, and The Solicitor-General v Cameron HC Timaru AP/98, 5 March 1999. As these cases referred to the end sentence rather than the starting point, they were not very helpful.

42  In Dijilali v R [2017] NZCA 515, there was insurmountable prejudice to the Crown from a 21- year delay as the Police interview with the defendant had been destroyed and a key witness (trial counsel) had passed away. Similar prejudice was found in Brown v Police [2018] NZHC 1083, where there was a 20-year delay and the court file could not be located.

for example, limited evidence upon which to consider whether a sentence of home detention could have been appropriate.43

[43]   Mr Amos has placed some reliance on McNeil v Police,44 in which the Court had varied historic sentences in the face of outcomes that were unforeseen at the time the sentences were imposed. However, the charges and convictions here are not as straightforward as the appeal, in that case, against a charge of possessing “one tinny”.

(d)     Interests of justice

[44]   It is Mr Amos’ submission that it is in the interests of justice to allow the appeal given the consequences of his convictions and sentences. He says, fairly, that the “goal posts have shifted” in terms of his ability to travel to Australia and he says that attitudes towards this type of offending have changed to the effect that, if sentenced today, he would be very unlikely to receive sentences of imprisonment. His sentences have, it is said, been served and he is “simply asking for some time to be shaved off”.

[45]   Mr Amos has, as mentioned above, relied on McNeil in saying that the High Court has previously varied historic sentences to avoid outcomes with unforeseen circumstances. However, in deciding whether to grant leave to appeal in that case, the reason for the delay—that the immigration consequences had only recently come to light—was not considered to be “particularly strong”.45 Leave was granted as the merits of the appeal and lack of prejudice to the respondent meant it was in the interests of justice to grant the extension.46 The position on the merits and on prejudice differs here.

[46]   A parallel issue arises. Would it be appropriate for the Court to intervene in a case like this for the purpose of addressing immigration consequences in Australia? How does this process interact with appeal procedures that are available as a part of

43 Pursuant to s 31(a) of the Criminal Justice Act 1985 (No 120), no court shall impose a sentence of community service on an offender unless it is satisfied “that the sentence is appropriate having regard to the offender’s character and personal history, and to any other relevant circumstances”.

44 McNeil v Police, above n 30, at [2]–[29].

45 At [23].

46 At [34].

the immigration process in Australia? The Crown says that it cannot be right to amend a sentence on appeal to take account of the change in another country’s laws.

[47]   Consequences of deportation have been considered in appeals over sentencing decisions that did not discharge appellants without conviction.47 Relevant considerations were expressed in these terms in Zhang v Ministry of Economic Development:48

… it is appropriate for the consequences of conviction to be resolved by the appropriate authorities, rather than the Court attempting to pre-empt that decision-making process by a decision to discharge without conviction […] There is nothing that requires the courts to intervene to try and impose their perception of what the right immigration consequences should be. That is best left to the immigration authorities … And there will always be occasions where in a finely balanced case a discharge [without conviction] may be warranted on these types of grounds. The case for discharge may not be so strong where the details of the offending will be known and closely examined by the relevant authority in any event, than where the query will be only as to prior convictions, for instance in an application for professional certification.

[48]   Discharges without conviction have been granted in circumstances where the immigration consequences were serious – for example, where the deportation of the appellant would break up the family unit.49

[49] The cancellation power in issue here was added to the migration regime by the Migration Amendment (Character and General Visa Cancellation) Act 2014. Under s 501(3A) of the Migration Act 1958 (Cth), the Minister must cancel a person’s visa without notice if the person has a “substantial criminal record” on the basis of having been sentenced to death, life imprisonment or a single term of imprisonment of 12 months or more”.

[50] The 1958 Act prescribes an appeal process following a decision under s 501(3A). The Minister is to give notice to the affected person and is to invite the

47     See Nanda v New Zealand Police [2023] NZHC 415 at [15]; Singh v R [2020] NZCA 411 at [14]; and Rahim v R [2018] NZCA 182 at [29] and [31].

48     Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-452, 17 March 2011 at [14]. Affirmed by the Court of Appeal in Ho v R [2016] NZCA 229.

49     Rahim v R, above n 47; and R v Tang [2019] NZHC 2056.

person to make representations about the decision.50 The matter can then be appealed, further, to the Administrative Appeals Tribunal.51

[51]   It has been said for Mr Amos in submissions that, subsequent to being denied entry at the border in 2016, his application for a special visa was declined due to his sentences of imprisonment. A further application to review the decision was not made.

[52]   The fact that the statutory scheme which caused Mr Amos to be turned away at the border, and then which declined his application for a special visa, included an appeal process is relevant here. It differentiates it from an immigration scheme in which the mere fact of conviction would bar entry on an ongoing basis. There was the ability here for Mr Amos to have the circumstances of his offending considered by both the Minister and an appeal tribunal. The availability of this alternative pathway weighs against allowing an extension of time.

[53]   Principles relating to the finality of decisions are relevant here also. On the one hand, it can be said the finality of decisions of the courts would be undermined if people convicted over 20 years ago were allowed to appeal to have their sentences reduced. On the other hand, it would be contrary to the interests of the justice if a person could not appeal a sentence that was manifestly excessive, even although it had been served.

[54]   I do accept that societal attitudes have changed and that, if Mr Amos was sentenced for the offending in question today, he would be likely to receive non- custodial sentences. However, for the reasons expressed, I am only able to consider the offending against the legal provisions and principles applied at the time of the offending.

[55]   Having regard to the merits of the appeal, the reasons for the delay, the prejudice to the Crown and the need for exceptional circumstances to exist, it is not in my view appropriate to grant leave to appeal the case.

50 Migration Act 1958 (Cth), s 501CA(3)(a) and (b).

51     Section 500(1)(ba). If the Minister made the decision personally, it cannot be further appealed.

[56]   It is recognised that the result will be disappointing to Mr Amos. However, the methodical application of the relevant principles leads me inexorably to these conclusions.

Result

[57]Leave to appeal is declined and the appeal against sentence is dismissed.

Radich J

Solicitors:

Paterson Anderson, Lower Hutt for Appellant Crown Solicitor, Wellington for Respondent