Sipaseut v Police - [2025] NZHC 73

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-670

[2025] NZHC 73

BETWEEN
VANXAY SIPASEUT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 3 February 2025

Appearances:

A S Ibrahim and A Spika for Appellant P E Hayward for Respondent

Judgment:

3 February 2025

(ORAL) JUDGMENT OF WILKINSON-SMITH J

Solicitors/Counsel:
Meredith Connell, Auckland
Public Defence Service, Auckland

SIPASEUT v NEW ZEALAND POLICE [2025] NZHC 73 [3 February 2025]

Introduction

[1] Mr Sipaseut appeals against a sentence imposed in the District Court by his Honour Judge S J O’Driscoll on 19 November 2024 on the following charges:1

(a)burglary;2

(b)possession of methamphetamine;3 and

(c)breach of release conditions.4

[2] The end sentence was 20 months’ imprisonment. The grounds of appeal are that the Judge erred in:

(a)applying an excessive uplift for previous convictions; and

(b)not imposing an electronically monitored sentence.

[3] It is submitted that as a result of these errors the end sentence imposed was manifestly excessive.

The offending

[4] On 23 June 2024 Mr Sipaseut was found with three Ziplock bags containing a total of 5.16 grams of methamphetamine. He was subject to release conditions at the time having been released from custody on 6 December 2023. The release conditions related to charges of:

(a)aggravated robbery;

(b)assault on a person in a family relationship;

1      New Zealand Police v Sipaseut [2024] NZDC 28260.
2      Crimes Act 1961, s 231(1)(a). Maximum penalty: 10 years’ imprisonment.
3      Misuse of Drugs Act 1971, s 7(1)(a) and (2). Maximum penalty: six months’ imprisonment or a
$1,000 fine.
4      Sentencing Act 2002, s 96(1). Maximum penalty: one year imprisonment or a $2,000 fine.

(c)eight counts of theft (under $500);

(d)four counts of using a document for pecuniary advantage; and

(e)burglary (under $500).

[5] Mr Sipaseut was remanded on bail on the charge of possession of methamphetamine — which was charged as possession simpliciter, carrying a maximum of six months’ imprisonment and a $1,000 fine.

[6] On 10 August 2024 while on bail, between 12 am and 4 am Mr Sipaseut and a co-defendant entered the Custom Compliance Workship in New Lynn by cutting a hole in the fence with pliers. They then looked through vehicles at the workshop and took a laptop, dealer’s plates and car keys. Using the keys they accessed a Mercedes Benz and a BMW SUV. They each drove a vehicle from the workshop area towards the front gate but were unsuccessful in controlling the automatic gate to the workshop. Police arrived and located Mr Sipaseut and his co-defendant inside the property.

[7]That August offending formed the basis of the burglary charge.

The District Court decision

[8] Judge O’Driscoll set out the facts related to the offending and then discussed the pre-sentence report. The Judge noted that Mr Sipaseut was aged 42. He had been struggling financially and making poor decisions. He blamed his co-defendant for planning the burglary. Mr Sipaseut’s risk of reoffending was assessed as high. He has a criminal history in…

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

Case: [2025] NZHC 73
Decision Date: 3 February 2025

CaseChat Overview and Summary

Mr Sipaseut appeals against a sentence of 20 months' imprisonment imposed by the District Court for burglary, possession of methamphetamine, and breach of release conditions. The appeal focuses on the alleged excessiveness of the uplift for previous convictions and the failure to impose an electronically monitored sentence. Mr Sipaseut argues that the uplift for previous convictions was excessive and that the end sentence should have been an electronically monitored sentence. The appeal raises two main issues: whether the uplift for previous convictions was proportionate and whether the sentence should have been converted to an electronically monitored sentence.

The Court considered the arguments regarding the uplift for previous convictions. Mr Sipaseut's counsel argued that a one-month uplift would have been appropriate due to only one prior burglary conviction in New Zealand. However, the Court noted that Mr Sipaseut's history, including his extensive criminal record in Australia, demonstrated persistent dishonesty offending. The Court found that while the six-month uplift was strict, an effective uplift of four months was within the range and concluded that the end sentence of 20 months was not manifestly excessive.

Regarding the second issue, the Court examined whether the sentence should have been commuted to an electronically monitored sentence. The Court found that the sentencing Judge had considered rehabilitation and imposed a release condition specifically aimed at addressing Mr Sipaseut's offending. The Court agreed with the sentencing Judge's reasons for not commuting the sentence to home detention, emphasizing the importance of deterrence given Mr Sipaseut's quick recidivism and serious nature of the charges.

The Court concluded that there was no error in the sentence imposed. The custodial sentence of 20 months was well within the available range, and the appeal was dismissed.

The final orders of the Court were that the appeal is dismissed, and the sentence of 20 months' imprisonment stands as imposed by the District Court.

Orders