Su'a v The King - [2023] NZHC 1485

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2023-441-006

[2023] NZHC 1485

BETWEEN
SOVITE TIMOTHY SU’A

Appellant

AND

THE KING

Respondent

Hearing: 14 June 2023

Counsel:

C J Tennet for Appellant

C R Walker for Respondent

Judgment:

14 June 2023

JUDGMENT OF ELLIS J

[1] After accepting a sentence indication,1 Mr Su’a was sentenced by Judge Matenga on 28 April 2023 to two years and six months’ imprisonment on the following charges:2

(a)One charge of supplying methamphetamine (representative);3

(b)One charge of possession for supply of methamphetamine (representative);4

1      R v Su’a DC Napier CRI-2021-041-001449, 30 August 2022 [Sentence Indication]. The indication related to 21 charges which were subsequently consolidated and replaced by the charges to which guilty pleas were entered. The indication was for a starting point of five years six months’ imprisonment, with a discount of 20 per cent for guilty pleas, with the possibility of further discounts for personal factors left open.
2      R v Su’a [2023] NZDC 8081 [Sentencing Decision]. Sentencing had been deferred under s 25A of the Sentencing Act 2002 to enable Mr Su’a to participate in rehabilitative programmes.
3      Misuse of Drugs Act 1975, ss 6(1)(c) and (2)(a) (maximum penalty of life imprisonment).
4      Misuse of Drugs Act, ss 6(1)(c), (1)(f) and (2)(a) (maximum penalty of life imprisonment).

SU’A v R [2023] NZHC 1485 [14 June 2023]

(c)One charge of offering to supply methamphetamine (representative);5

(d)One charge of possession for sale of cannabis (representative);6

(e)One charge of possessing methamphetamine;7

(f)One charge of possessing cannabis;8

(g)One charge of consuming cannabis.9

[2]Forfeiture orders were made in relation to cash seized by Police.10

[3]Mr Su’a now appeals his sentence on the grounds that:11

(a)The Judge erred in fact and in law by not giving a credit for Mr Su’a’s s 27 report.

(b)The Judge erred by failing to give a greater discount for rehabilitation.

(c)The Judge erred by not imposing a sentence that was the least restrictive outcome.

[4] Although the essential thrust of Mr Su’a’s appeal was, initially, that he should receive sentence of 24 months’ imprisonment or less so that it could then be converted to home detention, the home detention aspect was abandoned orally today.12 That is partly because it seems Mr Su’a is doing well in prison, and will shortly be eligible for parole with a possible placement in the DTU in advance of that.

5      Misuse of Drugs Act, ss 6(1)(c) and (2)(a) (maximum penalty of life imprisonment).
6      Misuse of Drugs Act, ss 6(1)(e), (1)(f) and (2)(c) (maximum penalty of eight years’ imprisonment).
7      Misuse of Drugs Act, ss 7(1)(a) and (2) (maximum penalty of six months’ imprisonment or $1000 fine).
8      Misuse of Drugs Act, ss 7(1)(a) and (2) (maximum penalty of three months’ imprisonment or $500 fine).
9      Mr Su’a did not plead guilty to this charge but was found guilty after a judge alone trial.
10     Sentencing Decision, above n 2, at [19].
11     Criminal Procedure Act 2011, s…

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.

Continue reading Su'a v The King

Details

AGLC: Su'a v The King [2023] NZHC 1485
Case: [2023] NZHC 1485
Decision Date: 14 June 2023

CaseChat Overview and Summary

Sovite Timothy Su’a appeals his sentence of two years and six months’ imprisonment, imposed on various drug charges, arguing that the sentencing judge erred in not applying a credit for his section 27 cultural report, in not applying a greater discount for his rehabilitative efforts, and in not imposing a sentence that was the least restrictive outcome. The appeal was heard by Ellis J in the High Court at Napier. The court had to determine whether the sentencing judge made any factual or legal errors that warranted a different sentence. In particular, the court examined whether the sentence imposed was manifestly excessive and not justified by relevant sentencing principles.

The court held that the sentencing judge properly considered the cultural report and afforded a discount for Mr Su’a’s addiction issues, as well as for his rehabilitation efforts. The court noted that a combined discount of 20 to 25 per cent was within range, given the circumstances. The court also held that the judge properly treated the discounts for addiction and rehabilitation holistically, as was done in other similar cases. The court further found that the sentence was not manifestly excessive and was well within range. The appeal was dismissed.

The court’s reasoning was based on the principle that sentence appeals are governed by section 250 of the Criminal Procedure Act 2011, which requires the court to allow the appeal if there is an error in the sentence and a different sentence should be imposed. However, where these conditions are not met, the court must dismiss the appeal. The court focused on the end sentence, rather than the process by which it was reached, and found no error by the sentencing judge. The court also considered relevant case law on sentencing discounts for addiction, rehabilitation and cultural factors.

Orders