Su v R

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA105/2019
[2020] NZCA 408

BETWEEN	XIANG SU Appellant
AND	THE QUEEN Respondent

Court:	Miller, Dobson and Moore JJ
Counsel:	R J Hooker for Appellant C Ure for Respondent
Judgment: (On the papers)	10 September 2020 at 3.30 pm

JUDGMENT OF THE COURT

The application for recall of this Court’s judgment in Su v R [2020] NZCA 128 is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Mr Su moves for recall of this Court’s judgment of 30 April 2020, in which his appeal against sentence was allowed and a sentence of five years imprisonment substituted.[1]
[1]Su v R [2020] NZCA 128.
Mr Hooker, who appears for Mr Su, says that there was a mathematical error in the Court’s sentence. The calculation should have resulted in a sentence of four years, eleven months imprisonment. The recall application also seeks to reopen the judgment, saying that the Court wrongly found Mr Su to be a driver and further that he ought to have been heard on sentence if the Court was not to apply a discount for addiction which had been applied by the High Court.
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.
Insofar as Mr Su seeks to reopen the judgment, recall is not an appropriate remedy. Following the Supreme Court judgment in Uhrle,[2] an applicant must show that a substantial injustice has probably occurred as a result of this Court’s judgment. A challenge to the merits must be made by way of appeal, not recall. Mr Su’s pursuit of an additional discount is a direct challenge to this Court’s finding that addiction did not have a causal link to the offending. His remedy is an application for leave to appeal to the Supreme Court.
[2]Uhrle v R [2020] NZSC 62.
The application for recall is declined.

Solicitors:
Vallant Hooker & Partners, Auckland for Appellant
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

The appellant, Xiang Su, filed an application for recall against the Court of Appeal of New Zealand's judgment in Su v R, where his appeal against sentence was allowed, and a five-year imprisonment sentence was substituted. Su’s counsel, R J Hooker, argued that there was a mathematical error in the original sentence, which should have resulted in a sentence of four years and eleven months imprisonment. Furthermore, the recall application sought to reopen the judgment, asserting that the Court wrongly found Su to be a driver and that he should have been heard on sentence if the Court was not to apply a discount for addiction, which had been applied by the High Court.

The legal issues in this case involved whether there was a calculation error in the sentence, whether the recall application was an appropriate remedy, and whether Su's pursuit of an additional discount was a challenge to the merits that should be made by way of appeal rather than recall.

The Court of Appeal dismissed the application for recall, stating that there was no calculation error in the original sentence. The Court rounded up the sentence calculation to achieve what it considered the appropriate sentence in the circumstances. Furthermore, the Court found that recall was not an appropriate remedy, as Su needed to show that a substantial injustice had probably occurred as a result of the Court’s judgment. Su’s pursuit of an additional discount was a direct challenge to the Court’s finding that addiction did not have a causal link to the offending, and his remedy was an application for leave to appeal to the Supreme Court.

In conclusion, the Court of Appeal dismissed the application for recall and denied the request to reopen the judgment. Su's remedy for challenging the Court's findings should be made by way of appeal rather than recall.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established