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…
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- Case
- [2025] NZHC 73
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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