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 both New Zealand and Australia and the sentencing Judge said it appears he has yet to address his offending and has not engaged in any rehabilitation since 2008 — which must have related to offending in Australia as his New Zealand offending history commenced in 2022. The appellant was, at the time, subject to release conditions until April 2025. The pre-sentence report recommended, somewhat optimistically, intensive supervision and community detention.

[9]        The sentencing Judge took a starting point for the burglary of 18 months’ imprisonment, noting that it involved a commercial premises, planning and

premeditation, and it took place between midnight and 4 am. The property which the appellant targeted was high value property, including two motor vehicles.

[10]      The Judge then imposed an uplift of six months’ imprisonment to reflect the appellant’s numerous previous convictions for dishonesty, including burglary in September 2023. A further two-month uplift was imposed to take into account that the appellant was on release conditions. That lead to an overall end starting point of 26 months’ imprisonment. The sentencing Judge noted that the sentence could have been increased to reflect the other charges, namely the methamphetamine and the breach of release conditions, but did not apply any further uplift because the sentence had been increased by two months to take account of the fact that the appellant was on release conditions.

[11]      A 20 per cent credit was then applied for the guilty plea which would have been a credit of 5.2 months but was increased or rounded up to six months, leaving an end sentence of 20 months’ imprisonment.

[12]      The Judge considered whether the sentence of imprisonment should be converted to an electronically monitored sentence or other sentence short of imprisonment. The Judge was not prepared to convert the sentence to an electronically monitored or other sentence for the following reasons:

(a)the defendant, he said, is not a youthful offender;

(b)he was on release conditions at the time of the burglary;

(c)this is the defendant’s second breach of release conditions (the previous breach being in February 2024);

(d)the defendant has a previous conviction history for burglary and previous convictions for dishonesty;

(e)the defendant was sentenced to imprisonment on 13 October 2023 and continued to offend upon his release; and

(f)his Honour did not believe that a sentence short of imprisonment would achieve the purposes and principles of sentencing. The Judge thought that it would be wrong for a defendant to be sentenced to imprisonment to then re-offend and go down the sentencing ladder. The Judge said the purpose of deterrence is that if a sentence of imprisonment is not successful and a defendant continues to offend, then protection of the community requirements means that he goes up the sentencing ladder.

[13]      The sentence of 20 months’ imprisonment was imposed on the charge of burglary. On the other two charges involving methamphetamine and breach of release conditions, the appellant was convicted and discharged. The Judge cancelled the existing release conditions and imposed new release conditions for six months past the sentence expiry date. A new condition that the appellant attend any counselling or treatment, or courses or programs to address his offending was imposed.

The grounds of the appeal

[14]      Mr Sipaseut says that the uplift for personal aggravating factors was excessive and that the end result should have been an electronically monitored sentence. There is no challenge to the starting point of 18 months’ imprisonment adopted for the lead charge of burglary.    It  is submitted that the uplift of six months was too high.      Mr Sipaseut’s counsel accepts that an uplift may be required to reflect a predilection or propensity to offend in a specific way, but submits that any uplift must remain proportionate to the fixed starting point to avoid unfairly punishing Mr Sipaseut twice for the same offending. That submission is clearly correct. Counsel cites the Court of Appeal in Columbus v R where it was said:5

Sentencing Judges must, however, guard against the risk of undue emphasis on past dishonesty convictions that lies in fixing the starting point by imposing a sentence which is primarily a punishment for previous offending […]

[15]      It is submitted for Mr Sipaseut that, as he has only one prior conviction for burglary in New Zealand, and as his remaining dishonesty offending is for relatively low-level matters, an uplift of one month would be appropriate. No issue is taken with

5      Columbus v R [2008] NZCA 192 at [15].

the two-month uplift for offending on bail and release conditions. It is submitted on Mr Sipaseut’s behalf that the appropriate adjusted starting point should have been 17 months’ imprisonment.

[16]      As a second ground of appeal, it is submitted that the Judge erred in not converting the short term of imprisonment to an electronically monitored sentence. Mr Sipaseut submits that the sentencing Judge erred in primarily relying on the principle of deterrence and not adequately considering principles of reintegration and rehabilitation. Mr Sipaseut’s counsel submits that a sentence of home detention would deter Mr Sipaseut from reoffending and would serve as a means of rehabilitation to tackle the root causes of the offending. It is said that such a sentence was the least restrictive available sentence.

[17]       Mr Sipaseut submits that the length of the home detention sentence should be four and a half months because:

(a)from an end point of 17 months’ imprisonment, the sentence would be substituted to one of eight and a half months home detention;

(b)but Mr Sipaseut spent 65 days in pre-detention and a further 60 days post-sentence detention in custody which is an equivalent to four months; and

(c)once the pre and post-detention time in custody has been reduced from the period of eight and a half months’ home detention, the end sentence should be four and a half months’ home detention. That is the sentence that is sought.

The approach on appeal

[18]      An appellant may appeal against sentence as of right under s 244 of the Criminal Procedure Act 2011.

[19]      An appeal against sentence must be allowed if an appellate court is satisfied that for any reason there is an error in the sentence imposed and that a different

sentence should be imposed.6 In any other case the appellate court must dismiss the appeal.7 Sentencing is not a science, and an appellate court will not intervene unless the end sentence is outside the range available to the sentencing Judge.8 An appellate decision is focused on the end result rather than the process by which the end sentence was reached.9

[20]      When allowing an appeal on the basis that there was an error in the sentence imposed the appellate court may: set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate, vary the sentence or any part of the sentence or any condition of sentence, or remit the sentence to the court that imposed it.

[21]      The appellate court does not start afresh or simply substitute its own opinion for that of the sentencing Judge, rather it must be shown that there was an error whether intrinsically or because of additional material submitted on appeal that affects the appropriate outcome.10 This Court will not intervene where a sentence imposed is within a range that could be properly justified by accepted sentencing principles.11

Discussion

[22]      In this case, the approach to sentencing was not consistent with that set out by the Court of Appeal in Moses v R.12 According to Moses, the guilty plea discount should have been calculated and applied before uplifts for previous convictions and offending whilst on release conditions and bail were applied. However, as the Crown points out this was to Mr Sipaseut’s benefit. Had the sentence been calculated in accordance with Moses, the end sentence would have been one of 22 months’ imprisonment.

[23]      The Crown accepts that the uplift for the previous offending of six months was strict. It is acknowledged that uplifts for previous offending should be proportionate

6      Criminal Procedure Act 2011, s 250(2).

7      Section 250(3).

8      Palmer v R [2016] NZCA 541 at [17].

9      Kumar v R [2015] NZCA 460 at [81].

10     R v Shipton [2007] 2 NZLR 218 (CA) at [138].

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

12     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

to the starting point adopted for the subject offending and the sentence imposed for the previous offending. For that reason, comparisons of uplifts are not easily made. The Crown relies on Tudor v R where Muir J observed:13

Previous convictions are an indicator of both character and culpability. They show the need for a great deterrent response and are a strong indicator of risk of reoffending. To that extent they actively engage multiple purposes of sentencing… New Zealand appellate courts have long recognised that significant uplifts may be justified in the case of recidivist offending of the same character.

[24]      Mr Sipaseut’s counsel relies on the fact that only one previous charge in     Mr Sipaseut’s New Zealand history is a charge of burglary and says a one-month uplift would have been appropriate. Mr Sipaseut does however also have a previous conviction for aggravated robbery and other dishonesty offending in New Zealand. He also has a history in Australia.

[25]      I agree with the Crown that Mr Sipaseut’s history, although relatively brief in New Zealand, demonstrates persistent dishonesty offending. Mr Sipaseut’s overseas history is available to me. It also shows persistent dishonesty offending. He has, by my count, 29 convictions between 2000 and 2018. To that extent it is artificial to treat his offending history as involving only one previous burglary conviction.

[26]      The offending pattern overall shows quick recidivism of a similar type of offending namely dishonesty. There are also a significant number of other aggravating factors. Mr Sipaseut shows a complete disregard for both release conditions and bail conditions. The charge of possession of methamphetamine related to a relatively significant quantity of methamphetamine, in fact over the presumption for supply. Mr Sipaseut was perhaps fortunate no uplift was applied for that offending which is different in nature to the earlier offending. It would have been open to the Judge to apply a discrete uplift for that, or a cumulative sentence given that it was quite different in nature, that the charge carries a maximum of six months’ imprisonment, but given the quantity of over five grams, a standalone sentence would need to be relatively near that maximum and I would have thought that three months would not be out of the range as a standalone sentence or even as an uplift.

13     Tudor v R [2024] NZHC 1960 at [39].

[27]      This sentence could have been structured differently. I agree that the uplift of six months is strict and indeed I think it is more than strict and higher than could realistically be justified. However, because of the way the sentence was calculated, the effective uplift was four months. I regard four months as well within the range.

[28]      As I have said, the sentence could have been structured differently with a lower uplift for the previous offending. However, the approach on appeal is not a mathematical one. The question is whether the end sentence is manifestly excessive for the offending as a whole. When I stand back and look at the offending, at the quick recidivism and the fact that it occurred in breach of both release conditions and bail, I reach the conclusion that a sentence of 20 months cannot be categorised as manifestly excessive. The length of sentence in my view cannot be disturbed on appeal.

[29]      I turn to the second point on appeal which is whether the 20-month sentence should have been commuted to a sentence of home detention. There is no presumption that either imprisonment or an electronically monitored sentence is preferred when a short sentence of imprisonment is reached. In this case, Mr Sipaseut was on release conditions at the time of the burglary, and this was his second breach of release conditions. While it is important not to double count that as it was taken into account in determining the length of the sentence, it nevertheless does affect whether it is appropriate to commute a sentence to home detention.

[30]      Mr Sipaseut was sentenced to imprisonment in 2023 and has continued to offend relatively quickly upon release. When he was arrested for offending on release conditions in June and placed on bail, he again continued to offend and in a more serious manner, breaching both release conditions and bail conditions. The pre- sentence report which was before the sentencing Judge assessed Mr Sipaseut’s likelihood of reoffending as high. I do not accept that the Judge failed to consider the need for rehabilitation. It is clear that he did consider it from the fact that he cancelled the existing release conditions and imposed a further release condition specifically aimed at rehabilitation.

[31]        Further, the charges for which Mr Sipaseut was on existing release conditions at the time of the index offending were serious, including aggravated robbery. The

sentencing Judge considered home detention in accordance with s 16 of the Sentencing Act 2002 and set out his reasons for declining to commute the sentence in some detail in [16]. It is clear that the decision not to commute was a decision that was carefully considered.

[32]      I agree with the matters taken into account by the sentencing Judge in declining to commute the sentence to home detention. Those who are released from prison and continue to offend, including on bail and release conditions, should not be surprised if the courts regard deterrence as an important factor in sentencing.

[33]      I can find no error in the sentence imposed in this case. A custodial sentence of 20 months’ imprisonment was well within the available range.

[34]The appeal is dismissed.

Wilkinson-Smith J