Su v R
[2020] NZCA 408
•10 September 2020 at 3.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA105/2019 [2020] NZCA 408 |
| BETWEEN | XIANG SU |
| AND | THE QUEEN |
| Court: | Miller, Dobson and Moore JJ |
Counsel: | R J Hooker for Appellant |
Judgment: | 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.
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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
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