Annalingam v Police

[2017] NZHC 3207

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2017-404-296 [2017] NZHC 3207

BETWEEN

SRI RAJ ANNALINGAM

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	13 November 2017
Counsel:	J Wiles & H Rogers for Appellant M Mortimer for Respondent
Judgment:	19 December 2017

JUDGMENT OF DUFFY J

This judgment was delivered by me on 19 December 2017 at 10.30 am pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors/Counsel:

Meredith Connell, Auckland

J H Wiles, Barrister, Auckland

ANNALINGAM v NEW ZEALAND POLICE [2017] NZHC 3207 [19 December 2017]

[1]      On 13 November 2017 I delivered an interim decision on Mr Annalingam’s sentence appeal.1   I found the sentence of 25 months’ imprisonment imposed in the District Court was not manifestly excessive and was well within the range of sentences that his conduct would generate.  I also found that ordinarily that would have been enough to dispose of the appeal.

[2]      At the time I adjourned the appeal I expressly stated:2

Insofar as the appeal was brought on the ground the sentence was manifestly excessive, I can indicate now that this ground is unsuccessful, and would not result in the appeal being allowed.

[3]      However, Mr Annalingam’s counsel, Mr Wiles, drew to my attention recent communications  from  the  Auckland  District  Health  Board  which  showed  that

Mr Annalingam’s wife’s health had deteriorated since his sentence, and this was allegedly having a serious impact on her ability to attend to the children.  Mr Wiles argued that the change for the worse in the wife’s ill health was a factor I could take into account in considering whether or not to allow the appeal and reduce the sentence.

[4]      At the time I decided to adjourn the appeal in order to give Mr Annalingam an opportunity to provide sound medical evidence to support the claim the deterioration in his wife’s health was so significant that it could impact on the sentence he had received.

[5]      Accordingly, I consider in that respect I have made a final decision and it cannot be revisited. When it came to receiving fresh evidence on the state of the wife’s health I gave specific directions regarding the nature of the evidence I should receive. This material has not been provided. Instead I have nothing more than a medical report dated   21   November   2017   from   the   general   practitioner   who   attends   to Mrs Annalingam.

[6]      When Mr Annalingam failed to comply with the direction regarding the quality of the medical evidence to be provided, the Crown filed a submission inviting me to dismiss the appeal on the grounds the evidence was not sufficient and non-compliant

with the direction I had given.  Further, the Crown raised doubts about whether it would be appropriate in the context of a sentence appeal for me to take into account developments subsequent to the imposition of the sentence. Here the Crown relied on Poi v R where the Court of Appeal cast doubt on an appellate court’s ability to intervene and allow a further reduction in the term of imprisonment because of an unfortunate  post-sentencing  event.3    In  response  to  the  Crown’s  memorandum

Mr Wiles has filed a further memorandum in which he confirms that he is content for the  balance  of  the  appeal  to  be  determined  on  the  papers.    He  advises  that

Mr Annalingam is unable to provide further material in support of the sentence appeal, apart from the medical report dated 21 November 2017 which has been filed.

[7]      At the time I delivered the interim decision, counsel had not addressed me on the legality of whether it is open to an appellate court to take into account post- sentencing circumstances as justifying a reduction in sentence.  Secondly, I made it clear that evidence of the post-sentencing circumstances was to be provided in the form of affidavits annexing full medical reports by the relevant medical officer. Instead I have received no more than a medical report from the general practitioner responsible for treating Mrs Annalingam.

[8]      As matters presently stand, I do not consider that the new evidence provided to me complies with the direction I gave in the interim judgment.4  Further, it has now been brought to my attention that there may be no legal basis for me to take into account post-sentencing circumstances to support allowing the appeal. I see no reason to determine this legal issue because the material before me satisfies me that there is no proper basis to interfere with Mr Annalingam’s sentence.

[9]      In the further memorandum Mr Wiles filed (dated 30 November 2017), he also made submissions regarding the effect of the sentence of 25 months’ imprisonment as opposed   to   a   sentence   of   24   months’  imprisonment,   which   would   leave

Mr Annalingam eligible for parole after serving 12 months of his sentence with the right to a parole release being given automatically.   That sentence of 25 months’ imprisonment is longer than a “short-term sentence” under s 4 of the Parole Act 2002,

which means that Mr Annalingam will become eligible for parole sooner than he would if he had served a sentence of 24 months’ imprisonment.  However, with this sentence there is no guarantee he will be granted parole.  I understand the arguments Mr Wiles makes.  However, I have already indicated in the interim judgment that the sentence of 25 months’ imprisonment imposed by the District Court was not manifestly excessive and there was no basis for interfering with the sentence other than if evidence of the wife’s medical condition post-sentencing provided a basis for interfering with the sentence. There are two reasons why that has not happened. First, the evidence provided to me is insufficient to achieve that outcome and secondly, the legal basis for following that course of action is seemingly questionable.  There is no basis for me to take into account the further submissions Mr Wiles seeks to make on the length of the term of imprisonment and the consequent availability of parole.

[10]     I am satisfied there is no proper basis for interfering with the sentence, and accordingly the appeal is dismissed.

Duffy J