Su'a v The King

[2025] NZHC 2775

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-000256

[2025] NZHC 2775

BETWEEN

SALEC DAVID SU’A

Appellant

AND

THE KING

Respondent

Hearing:	22 September 2025
Counsel:	H-A Cherrington for Appellant RG Hayden for Crown
Judgment:	24 September 2025

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 24 September 2025 at 10 am.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Auckland. H-A Cherrington, Auckland.

SU’A v R [2025] NZHC 2775 [24 September 2025]

A narrow appeal

[1]                 Salec Su’a received a sentence of two years and eight months’ imprisonment for dealing in Class A and B controlled drugs, and possession for supply.1 Mr Su’a appeals that sentence. His appeal must be allowed if there is an error in the sentence and a different sentence should be imposed.2 The conventional test is whether the sentence is manifestly excessive.3 These broad statements of principle conceal a very narrow issue: did the Judge err to decline credit for Mr Su’a’s alleged addiction to cocaine?

Background

[2]                 On 26 October 2023, Police executed a search warrant at Mr Su’a’s home. They found 10 grams of cocaine in several zip lock bags and three mobile phones. They also found digital scales, $590 in cash, and benzocaine. Analysis of the mobile phones revealed:

(a)An offer by Mr Su’a to supply the Class A controlled drug cocaine and the Class B controlled drug MDMA on or about 16 September 2023.

(b)At least nine occasions of supply, or offers to supply, cocaine between 22 September and 23 October 2023.

[3]                 On the first day of his trial, Mr Su’a pleaded guilty to four charges of dealing with controlled drugs, including  one  representative  charge,  contrary  to  the Misuse of Drugs Act 1975. Three charges concerned cocaine; the other one, MDMA. The agreed summary of facts records, “It  is  estimated  Mr Su’a supplied  at  least  32 grams of cocaine and offered to supply at least two grams of cocaine.”

1      R v Sua [2025] NZDC 10154.

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

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33]–[35].

[4]                 Judge B A Gibson adopted a global starting point of 38 months’ imprisonment and deducted 10 percent for Mr Su’a’s belated guilty pleas. The Judge also discounted the sentence by five percent in recognition of Mr Su’a’s rehabilitative efforts in relation to alcohol.  The Judge declined to discount the sentence further based on   Mr Su’a’s background or his alleged addiction to cocaine:

[6]  The pre-sentence report notes that you ran into some old associates   from Australia who had been deported, that you began drinking each week. One thing led to another and you began using cocaine and that then led into the offending. But your previous history in Australia does not reveal any issues with drug offending and not only that you appear to have been well brought up in contrast to many people who appear on these sort of charges in the courts here. So you cannot, in my view, ascribe any nexus to the way you were bought up to your offending. Simply, you chose of your own volition to offend when you fell in with persons who could best be described as bad company and led you to alcohol and drug offending and as you said to the probation officer, one thing led to another. You really have only yourself to blame for the predicament that you are now in.

…

[8] You are entitled to a guilty plea discount and I will address that shortly but you cannot really call on any good character discount because I can take into account your convictions in Australia. Your counsel seeks a discount for alcohol and drug addiction issues but I do not see they provide a nexus to the offending, but I will recognise the fact that you made some attempt to deal with problems you may have developed with alcohol and I allow you a discount of five per cent in that respect.

The contention on appeal

[5]                 Mr Su’a contends the  Judge  erred  to  decline  a  discount  for  addiction.  On Mr Su’a’s behalf, Ms Cherrington argues he had such an addiction and the offending was to fund it.

[6]                 Ms Cherrington relies, as she did in the District Court, on an alcohol and drug report. The authors of that report spoke with Mr Su’a before sentencing, and with an aunt of his. They concluded Mr Su’a had alcohol use disorder and cocaine use disorder. The report says:

Because of his heavy use of alcohol, Mr Su’a began getting into trouble and was deported to New Zealand in  2022.  Although he returned to  his aunt, Mr Su’a felt disassociated and lonely, isolating himself from his family. When friends of his were also deported to New Zealand in June 2023, Mr Su’a relapsed on alcohol and was introduced to cocaine. His use of the substance increased quickly, resulting in him purchasing larger amounts to match his

increasing tolerance. Mr Su’a sold cocaine primarily to fund his own addiction.

[7]                 Ms Cherrington, therefore, argued Mr Su’a’s cocaine addiction contributed causatively to the offending, and should have attracted a discrete allowance.

Analysis

[8]                 The  report  provides  an  immediate  and  obvious  basis  for  a  credit,  as  Ms Cherrington argues.  But  the  report  is  ultimately  based  on  self-reporting.  The question then becomes, does the record, overall, exhibit a causative contribution to the offending based on addiction?4 Five points arise.

[9]                 First, Mr Su’a’s criminal history is not indicative of drug addiction. Mr Su’a had no criminal history in New Zealand. That for his time in Australia, from where he was deported, reveals convictions for affray; reckless bodily harm; three thefts from a person; and rioting.

[10]              Second, Mr Su’a did not tell Police his offending was to fund an addiction. The agreed statement of facts records:

On 26 October 2023 at the time the search warrant was executed, Mr Su’a completed a notebook question and answer statement with Police which he signed. In that statement, Mr Su’a admitted that there was cocaine in his room and there were about four to five bags of cocaine in his drawer. Mr Su’a stated that as well as personal use, he sells the cocaine to friends to make money back from it. Mr Su’a stated the amount he sold a bag for depends on how much money he needs to give back. He would weigh out 0.8 grams because with inflation a gram is too much. At a time, Mr Su’a would get a couple of “balls” and a “ball” cost about $800.

During transportation by Police to the Auckland City custody unit, Mr Su’a stated to Police that he purchased cocaine for around $400.00 a bag which was around 1 gram each. He purchased and sold cocaine and after a while he was able to then buy cocaine between $250 and $300.00 and start making his own profit from selling. Mr Su’a would not state who was supplying him the product or how often he was getting it, only that if he needed some, it wasn’t an issue getting it.

4      Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.

[11]              Third, addiction is not supported by the pre-sentence report, which reads:

Mr Su’a said he was feeling “pretty lost” at the time of his offending. He had recently finished his Returning Offender Order after having been deported back to New Zealand, and would push down his emotions instead of processing them, which led to him “spiral[ing]”. Mr Su’a said he then ran into some old associates from Australia who had also been deported. He began drinking every week and said “one thing led to another” which led to him using cocaine once a week. Mr Su’a said that he was never addicted to cocaine, but was drinking heavily and using cocaine would help prevent him “black[ing] out”. Mr Su’a denied ever using MDMA himself.

Mr Su’a advised that his co-offenders are now all in custody for offending he was not involved in. He said that he would be open to having contact with them again but would not return to a life of drug use or dealing.

[12]              The pre-sentence report does, however, provide some support for Mr Su’a having a drinking problem:

Mr Su’a does not believe he was addicted to alcohol. He advised that in Australia he felt that drinking alcohol was a cultural thing and every weekend he would go to a pub with friends. In New Zealand he thinks his alcohol consumption was more of an emotional escape.

Mr Su’a continued to use alcohol [after] the police raid and said the last time was on New Year’s in 2023  after  he  blacked  out.  His  partner  was  in New Zealand visiting him and helped him realise his alcohol consumption was problematic, particularly as he would consume a minimum of 12 alcoholic drinks at a time. Mr Su’a said that this was a turning point for him and he stopped drinking and started praying instead.

[13]              Fourth, there is no suggestion Mr Su’a was exposed to drugs during his formative years; his background was distinctly pro-social.

[14]              Fifth, as Ms Hayden for the Crown observes, Mr Su’a was able to maintain stable employment (in relation to the production of music) throughout the pre-offence period; offence period; and post-offence period:

… Mr Su’a retained employment after deportation to New Zealand. Mr Su’a has   worked   in   audio   engineering   and   music    production    for Everest Merchandise in Australia since 2019, receiving a salary with flexible working hours. Whilst on bail after being arrested in 2024, Mr Su’a’s bail was varied by consent so he could fulfil his contractual obligations with members of ONEFOUR by touring New Zealand and performing shows in Auckland, Wellington and Christchurch. That Mr Su’a received independent and legitimate sources of income does not suggest he had no alternative other than to sell cocaine in order to fund his own supply. As such, it should not be viewed as a mitigating factor.

In the Respondent’s submission, Mr Su’a has not demonstrated his use of alcohol and/or cocaine was to the degree it impaired his decision making or his moral culpability relating to his offending. Throughout the period of using the substances, Mr Su’a maintained employment and later was able to quit alcohol use without engaging in any programmes. ...

[15]              Relatedly, Ms Hayden notes Mr Su’a’s socialisation in his work environment appears to have normalised his use of cocaine.

[16]              As will be apparent, these threads do not support a cocaine addiction, and the fifth probably tells against it. It follows the contention Mr Su’a committed the offending to maintain an addiction is problematical, unless one still accepts the self-reporting that ultimately sustains the drug and alcohol report. Plainly, the Judge was not bound to do so.

[17]              But what about alcohol? As observed, the pre-sentence report provides some support for Mr Su’a having an alcohol problem. Furthermore, Mr Su’a’s drinking and cocaine could be seen as interrelated for the reason identified by the pre-sentence report: Mr Su’a said he used cocaine to counteract the effects of alcohol. However, this aspect, even if correct, does not clearly mitigate the offending. Ms Hayden’s submissions capture the point well:

Mr Su’a chose to socialize in an environment which normalised drug use on the weekends. Despite having alternative and stable forms of income, he then chose to supply cocaine as a means to profit. At the time of his drug offending, Mr Su’a was 30 years old. As such, it is submitted the sentencing Judge was correct to hold his offending appears more directly attributable to his decisions as an adult, as opposed to any causative personal background factors.

[18]              This leaves a somewhat related aspect. Ms Cherrington argues the discount of five percent in recognition of Mr Su’a’s rehabilitative efforts should have been greater. But as Ms Hayden observes, that level of discount recognised the modest rehabilitation undertaken: Mr Su’a completed a six-week alcohol and other drugs course with  Tupu services, not more. No further rehabilitation was contemplated at the time of sentencing.

[19]              It follows there is no error in the sentence, and no issue of a different sentence arises.

Result

[20]The appeal is dismissed.

……………………………..

Downs J