Su v R - [2020] NZSC 156

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 85/2020
[2020] NZSC 156

BETWEEN	XIANG SU Applicant
AND	THE QUEEN Respondent

Court:	Glazebrook, Ellen France and Williams JJ
Counsel:	R J Hooker for Applicant C Ure for Respondent
Judgment:	22 December 2020

JUDGMENT OF THE COURT

The application for an extension of time to apply for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Background

Mr Su was convicted after a jury trial of one charge of possessing methamphetamine for supply. He was sentenced to five years and 10 months’ imprisonment. On appeal his sentence was reduced to one of five years’ imprisonment.[1]
[1]Su v R [2020] NZCA 128 (Miller, Dobson and Moore JJ).
Mr Su then applied for recall of the appeal decision. He asserted that a mathematical error had occurred in calculating the final sentence meaning that the sentence should have been rounded down in the applicant's favour, resulting in four years and 11 months’ imprisonment instead of five years’ imprisonment. He also sought further credit for personal mitigating features.
The Court of Appeal refused his application for recall, saying that a challenge to the merits should have been pursued on appeal and not by way of recall.[2] As to the calculation error, it said:
[3] The short answer to the application is that there is no calculation error. The Court rounded up the sentence calculation to achieve what it considered the appropriate sentence in the circumstances. That is the objective of sentencing.

Application for leave

Applicant’s submissions

[2]Su v R [2020] NZCA 408 (Miller, Dobson and Moore JJ) at [4].

Mr Su seeks leave to appeal on the basis that his sentence should have been “rounded down” to four years and 11 months rather than “rounded up” to five years. He says this is a matter of general importance because there is inconsistency in the approach to this issue by sentencing judges.
He points out that some sentencing judges have rounded the end sentence down, for example:
(a)In Gathergood v R, the end sentence was rounded down to two years and five months’ imprisonment.[3]
(b)In Blissett v Police, the High Court (on appeal) applied a discount of 30 per cent and then rounded the result down.[4]
(c)In R v Tatana, the High Court, having applied the relevant discounts, rounded the sentence down.[5]
[3]Gathergood v R [2010] NZCA 350 at [28].
[4]Blissett v Police [2013] NZHC 156 at [53].
[5]R v Tatana [2014] NZHC 1614 at [40].
He submits that, on other occasions, the Court has rounded the result up:
(a)In Waho v R, the Court of Appeal rounded the sentence up.[6]
(b)In R v Smith, the sentence had been rounded up by the District Court.[7]
(c)In Hansen v New Zealand Police, the High Court allowed an appeal from a District Court sentence and, in substituting its own sentence, rounded the sentence up after allowing discounts for personal factors and a guilty plea.[8]

Crown’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 v R

Details

AGLC: Su v R [2020] NZSC 156
Case: [2020] NZSC 156
Decision Date: 22 December 2020

CaseChat Overview and Summary

Xiang Su appealed against his conviction and sentence for possessing methamphetamine for supply, but his appeal was dismissed by the Court of Appeal, which reduced his sentence from five years and ten months' imprisonment to five years. Su then applied for recall of the appeal decision, arguing there was a calculation error in the sentence, and sought further credit for personal mitigating features. The Court of Appeal refused his application for recall, holding that a challenge to the merits should have been pursued on appeal and not by way of recall. It also stated that there was no calculation error, as the Court rounded up the sentence calculation to achieve what it considered the appropriate sentence in the circumstances.

The legal issues in this case involved whether there was a calculation error in the sentence, and whether the sentence should have been rounded down instead of rounded up. The Crown argued that there was no identifiable error in the Court of Appeal's decision and no important question of general principle arising. It submitted that the proposed appeal did not meet any of the qualifying criteria for the granting of leave, as the applicant was seeking an unwarranted fettering of sentencing judges' discretion. The applicant argued that there was inconsistency in the approach to this issue by sentencing judges, and that rounding the sentence down was more appropriate in this case.

The Supreme Court dismissed the application for an extension of time to apply for leave to appeal, as there was an inadequate explanation for the delay in submitting the leave application. The Court held that whether adjustments to sentences expressed as percentages are rounded up or down when translated into actual weeks, months or years will depend on the particular circumstances of each case. There is thus no matter of general or public importance. In this case, the Court of Appeal considered the appropriate sentence to be five years, based on its analysis of all the relevant circumstances. Nothing raised by the applicant suggested a risk of a substantial miscarriage of justice.

The final orders of the Court were that the application for an extension of time to apply for leave to appeal was dismissed.

Orders