Sua v The King
[2025] NZHC 1761
•1 July 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2025-485-016 CRI-2025-454-012 [2025] NZHC 1761
BETWEEN ANDREW SUA
Appellant
AND THE KING
Respondent
Hearing: 18 June 2025 Appearances: J N Olsen for Appellant
M Story for Respondent
Judgment: 1 July 2025
JUDGMENT OF CHURCHMAN J
[Sentence appeal]
Introduction
[1] On 19 February 2024, Judge Davidson sentenced the appellant to 6 months’ community detention and 12 months’ supervision for the following charges (the original charges):1
(a)four counts of driving whilst disqualified (third or subsequent);2
(b)one count of unlawful possession of prohibited magazine;3
(c)one count of unlawful possession of explosives;4
1 R v Sua [2024] NZDC 9545 [Sentencing Decision].
2 Land Transport Act 1998, s 32(1)(a) and (4) — maximum penalty of 2 years’ imprisonment.
3 Arms Act 1983, s 50B — maximum penalty of 2 years’ imprisonment.
4 Section 45(1) — maximum penalty of 4 years’ imprisonment.
SUA v R [2025] NZHC 1761 [1 July 2025]
(d)one count of possession for supply of methamphetamine;5
(e)six counts of offering to supply methamphetamine;6
(f)six counts of supplying methamphetamine;7 and
(g)one count of possession of cannabis.8
[2] The appellant served a portion of his sentence at the Grace Foundation. When the appellant left the Grace Foundation before the end of his programme, he committed further offences in 2024 (2024 charges). The Department of Corrections (the Department) sought the cancellation of the sentence and substitution of a sentence of community detention.
[3] On 28 August 2024, Judge Northwood re-sentenced the appellant following the 2024 charges. The Judge cancelled and substituted the remaining sentence of community detention with a sentence of three years and one months’ imprisonment for the previous charges outlined above and the following charges:9
(a)possession of cannabis for supply;10
(b)possession of an offensive weapon (a baton);11
(c)driving whilst disqualified (third or subsequent);12 and
(d)procurement/possession of methamphetamine and amphetamine;13
5 Misuse of Drugs Act 1975, s 6(1)(f) — maximum penalty of life imprisonment.
6 Section 6(1)(c) and (2) — maximum penalty of life imprisonment.
7 Section 6(1)(c) and (2) — maximum penalty of life imprisonment.
8 Section 7(1)(a) — maximum penalty of 3 months’ imprisonment or $1,000 fine.
9 Police v Sua [2024] NZDC 20723 [Re-sentencing Decision].
10 Misuse of Drugs Act, s 6(1)(f) — maximum penalty of 8 years’ imprisonment.
11 Crimes Act, s 202A(4)(a) — maximum penalty of 3 years’ imprisonment.
12 Land Transport Act, s 32(1)(a) and (4) — maximum penalty of 2 years’ imprisonment or $6,000 fine; and the Court must order the person to be disqualified from holding or obtaining a driver license for one year or more.
13 Misuse of Drugs Act, s 7(1)(a) and (2) — maximum penalty of 6 months’ imprisonment or $1,000 fine.
(e)unlawful possession of ammunition.14
[4] On appeal, the appellant challenges the Judge’s Re-sentencing Decision on the original charges but does not challenge the sentence regarding the 2024 charges. The appellant seeks:
(a)An order that the decision of Judge Northwood is set aside and in its place the sentence of community detention imposed by Judge Davidson is cancelled under s 69I(3)(c).
(b)For the Court to affirm the sentence of 16 months’ imprisonment imposed for the new (April 2024) offending.
Background
Driving while disqualified
[5] The appellant has been disqualified from driving indefinitely since 27 November 1996 and has never held a current licence since. The appellant drove while disqualified from driving on 23 April 2022, 26 April 2022, 27 April 2022 and 28 April 2022.
Unlawful possession of explosives and magazine
[6] In a search of the appellant’s vehicle, police found a 3D printed extended magazine containing 7 x 9 mm centrefire rounds.
[7] Police also found cash worth $11.00, electronic scales, an empty methamphetamine bag and a container with methamphetamine residue.
Possession for supply of methamphetamine and possession of cannabis
[8] On 6 May 2022, the police issued a search warrant at the appellant’s home address. Police found 6.25 g of methamphetamine and 12.04 g of cannabis plant material.
14 Arms Act, s 22B — maximum penalty of $10,000 fine.
Supplying methamphetamine
[9] Police executed a series of production orders on the appellant’s phones. Between 1 March and May 2022, the appellant travelled through the lower of the North Island to source and sell methamphetamine to associates. The messages showed the appellant sold a gram of methamphetamine for $450.
[10]On 1 March 2022, the appellant sold a quarter of a gram of methamphetamine.
[11] On 3 March 2022, the appellant sold either a half or quarter gram of methamphetamine.
[12] On 11 March 2022, the appellant is presumed to have sold a quarter of a gram of methamphetamine.
[13] On 12 March 2022, the appellant sold an unknown quantity of methamphetamine.
[14]On 1 April 2022, the appellant sold one gram of methamphetamine.
[15]On 22 April 2022, the appellant sold a gram of methamphetamine.
Offering to supply methamphetamine
[16] In 2022, on 25 March, 27 March, 28 March, 2 April, 5 April, 14 April, the appellant offered to supply an unknown quantity of methamphetamine to an associate.
2024 charges
[17] On 11 April 2024, the appellant was driving his vehicle while indefinitely disqualified. When the police stopped the appellant, he provided police with a false name. While the police attempted to determine the identity of the appellant, an ice cream container fell out of the passenger door. It contained cannabis. The police undertook a warrantless search. Police located 95 g of cannabis in four snap lock bags, and 2.72 g of methamphetamine. Police found 16 rounds of .22 calibre ammunition and an Asp Baton.
Issues on appeal
[18] In assessing whether the sentence was manifestly excessive, I address the following issues:
(a)Whether leave to appeal out of time ought to be granted.
(b)Whether the Judge ought to have cancelled the sentence of community detention without substitution. In particular, I must assess whether the Judge erred in applying s 69IA of the Sentencing Act 2002 (the Act) and failed to consider the amount of time the appellant had served on his sentence.
Re-sentencing decision
[19] The Judge noted the appellant had an extensive criminal history commencing in 1991. The Judge observed the appellant had four months and seven days remaining of the sentence, having served just under two months of community detention.
[20] The Judge considered the pre-sentence report which recommended imprisonment and acknowledged the appellant’s efforts to mitigate his addiction.
[21] The Judge revisited the sentence imposed on 19 February 2022. The Judge declined to consider the sentence afresh to avoid revisiting the credits Judge Davidson gave the appellant. Instead, the Judge inquired into the totality of the sentencing through the lens of the starting points of both the past and current offending. The Judge looked at both aspects of the appellant’s case separately and concluded whether the overall end sentences were too long and required an adjustment.
[22] The Judge observed there was no longer an appropriate address available at the Grace Foundation. The appellant left the Grace Foundation because he had found drug paraphernalia from a friend who had left his personal belongings. The appellant used the paraphernalia to return to his own drug use. In light of that fact, the Judge cancelled the current sentences of community detention and supervision.
[23] In relation to the original sentence, the Judge observed Judge Davidson settled upon a term of 22 months’ imprisonment. The Judge gave the appellant a credit for two months of community detention served. The Judge proceeded on the basis that Judge Davidson took into account time in custody when assessing the non-custodial element of the sentence.
[24] The Judge concluded the end sentence would, therefore, amount to one year and nine months’ imprisonment on the two charges of possession of methamphetamine for supply and 12 charges of supplying or offering to supply methamphetamine. The Judge imposed concurrent sentences of eight months’ imprisonment for each of the charges of driving while disqualified. The Judge sentenced the appellant to six months’ imprisonment concurrently on the charge of unlawful possession of explosives and a further six months concurrently on the unlawful possession of a prohibited magazine.
[25] For the 2024 charges, Judge Northwood adopted a global starting point of 22 months. The Judge applied a 10 per cent uplift to reflect Mr Sua’s relevant criminal history and offending while subject to a sentence. The Judge reduced the appellant’s sentence by 25 per cent for early guilty plea and 10 per cent for efforts at rehabilitation. The Judge sentenced the appellant to 16 months’ imprisonment for the 2024 charges applied cumulatively on the sentencing for the original charges that were re-sentenced.
[26] The Judge considered a cumulative, single notional sentence of three years and one months’ imprisonment appropriate in totality. The Judge declined to make an adjustment for totality.
Approach on appeal
[27] An appeal against sentence is an appeal against discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.15 The Court must dismiss the appeal in any other case.16
15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
16 Criminal Procedure Act 2011, s 250(3).
Submissions
Appellant’s submissions
[28] Mr Olsen argues that the appellant had already served half the sentence in custody on remand (11 months). If the appellant had been sentenced to imprisonment in February, he would have automatically released from prison subject only to release conditions (akin to supervision for 11 months). This did not take into account the several months spent on bail and curfew.
[29] Mr Olsen submits the sentence imposed was more severe than what the appellant would have received if the sentence had not been commuted. Mr Olsen argues the appellant is required to obtain parole rather than being released after half of each short sentence of imprisonment.
[30] In relation to the assessment under s 69I(4), Mr Olsen submits the Judge erred in taking into account the period of time the appellant had served. Instead, the Judge ought to have considered the amount of time the appellant had left of his sentence, as applied in R v Nelson-Bell.17
[31] The appellant submits the Judge erroneously relied on the two months before arrest rather than the 5.75 months before the Department of Corrections (the Department) filed the application. The Department filed its application in the District Court at Whanganui on 13 August 2024. By that date, the appellant had served five months and 26 days of his sentence. Consequently, Mr Olsen submits the appellant had six days remaining on his sentence.
[32] Mr Olsen submits that the Court ought to have cancelled the sentence in light of the fact that the appellant had six days remaining on his sentence. Mr Olsen refers to the case of Hough v Police where the defendant was sentenced to six months’ community detention, 120 hours community work and 12 months supervision.18 When the defendant committed further offending, the Department sought substitution of the sentence. Mr Hough had 31 hours of community work and four months
17 R v Nelson-Bell [2023] NZHC 799.
18 Hough v Police [2017] NZHC 93.
supervision remaining of his sentence. Judge Black substituted a sentence of 10 months. Ellis J allowed the appeal and considered no more than 2 months would have been appropriate for substitution.19
[33] Mr Olsen refers to the case of R v Nelson-Bell where the defendant had been sentenced to 12 months’ home detention, in substitution for two years’ imprisonment.20 The appellant had six and a half months remaining on the sentence. The Judge cancelled the home detention sentence and sentenced the appellant to one year and one months’ imprisonment.21
[34] Mr Olsen cites Bartlett v Police where the appellant was re-sentenced to nine months’ home detention after a sentence of 17 months’ imprisonment.22 Preston J concluded that the Act requires a judge at re-sentencing to consider the portion of the original sentence that remains unserved.23 The re-sentencing Judge applied a reduction of two months to reflect the four months Mr Bartlett had spent on home detention. The Judge then applied an uplift of one month to reflect the breach of home detention, resulting in a sentence of 17 months' imprisonment. Preston J found that the substituted sentence was manifestly excessive and imposed a sentence of 11 months’ imprisonment.
[35] In light of the case law, Mr Olsen argues that the appropriate substitution was a sentence of 12 days imprisonment. Mr Olsen submits that if the Judge had cancelled the appellant’s community detention or substituted it with a sentence of only 12 days’ imprisonment, the appellant would have been eligible for release (having served half his sentence) on 12 December 2024, with his sentence ending on 12 August 2025.
Respondent’s submissions
[36] Ms Story, on behalf of the Crown, acknowledges s 69IA(a) calculates the amount of time an offender has served on a sentence of community detention as running from the date on which an application under s 69I is lodged.
19 At [22].
20 R v Nelson-Bell, above n 17.
21 At [11]–[12].
22 Bartlett v Police [2023] NZHC 3624.
23 At [8].
[37] Ms Story acknowledges that the Judge was required to take into account the fact that there were six remaining days on the sentence of community detention when determining the appropriate substitute sentence. She, however, submits Judge Northwood did not err in his application of s 69I(4). She argues that whilst the provision requires a Judge to take into account the portion of the original sentence that remains unserved, that factor is not the exclusive consideration.
[38] She argues that the Judge was correct not to take into account the period between Mr Sua’s remand in custody on the 2024 charges and the date the Department’s application was lodged. That period of pre-sentence detention (along with the six days between the application and Mr Sua’s sentencing) would be deducted by the Department from the remaining sentence of imprisonment on a day-by-day basis.
[39] Ms Story submits that the Judge correctly identified that the appellant had served only two months of his community detention and supervision sentence in the community (not in pre-sentence detention). Ms Story argues that the appellant’s interpretation of s 69I(4) would lead to double-counting and would be improper in light of s 82 of the Sentencing Act.
[40] Ms Story submits that an end sentence of 22 months’ imprisonment could have been imposed at the initial sentencing. Ms Story notes the appellant had spent 11 months on pre-sentence detention and he would likely have been immediately released pursuant to s 86 of the Parole Act 2002.
[41] The Crown further suggests that the Judge’s credit of one month imprisonment was generous. Ms Story argues that the Judge applied the credit, contrary to Malupo v Police.24 In that case, Whata J held that it was not appropriate to adopt a two (months of imprisonment) to one (month of community detention) ratio based on the practice sometimes used for fixing a home detention sentence.
[42] The Crown submits that any error by the Judge in his interpretation and application of s 69IA(a) of the Act did not lead to a manifestly excessive sentence.
24 Malupo v Police [2018] NZHC 801.
Ms Story submits the sentence imposed on the original charges of 21 months’ imprisonment was open to the Judge. Ms Story submits the substituted sentence reflected the need to deter the appellant from committing the same or similar offending. Ms Story also refers to the pre-sentence report which recommended a sentence of imprisonment due to the ongoing issues the appellant has with substances whilst subject to a community-based sentence.
Analysis
Whether leave to appeal out of time ought to be granted
[43] Section 248 of the Criminal Procedure Act 2011 provides that an application for leave to appeal must be filed within 20 working days after the date of the sentence appealed against. Subsection (4) provides that the first appeal court may extend the time allowed for filing a notice of appeal or notice of application for leave to appeal.
[44] In R v Knight, the Court established that the “touchstone” for granting an application to extend time is the interests of justice in the particular case.25 The Court noted the relevant factors to the assessment included:26
… the strength of the proposed appeal and the practical utility of the remedy sought, the length of the delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.
[45] The delay appears to have been caused by the failure of a lawyer to action the appellant’s instructions. It is in the interests of justice for leave to be granted and I do so.
Whether the sentence was manifestly excessive
[46] The issue I must consider is whether the Judge erred in interpreting s 69I of the Act. Section 69I outlines the variation or cancellation of a sentence of community detention:
25 R v Knight [1998] 1 NZLR 583 at 587; R v Davis [2007] NZCA 577 at [13].
26 At 589 affirmed by R v Lee [2006] 3 NZLR 42 at [98].
(1)An offender who is subject to a sentence of community detention, or a probation officer, may apply, in accordance with section 72, for an order under subsection (3) on the grounds that—
…
(b)the curfew address is no longer available or suitable because of a change in circumstances; or
…
…
(3)On an application under subsection (1) or (2), the court may, if it is satisfied that the grounds on which the application is based have been established,—
(a)suspend or vary the curfew period; or
(b)vary the curfew address; or
(c)cancel the sentence; or
(d)cancel the sentence and substitute any other sentence (including another sentence of community detention) that could have been imposed on the offender at the time that the offender was convicted of the offence for which the sentence was imposed.
(4)When determining a substitute sentence to be imposed under subsection (3)(d), the court must take into account the portion of the original sentence that remains unserved at the time of the order.
(emphasis added).
[47] The provision allows a Judge to substitute any other sentence that could have been initially imposed at the time of conviction.27 While the re-sentencing Judge should consider the original sentence as part of the re-sentencing process, it is for the re-sentencing judge to form their own opinion as to the appropriate sentence, which may well differ from the original sentence.28
[48] Section 69IA of the Act outlines when time ceases to run on a sentence of community detention:
69IA When time ceases to run on sentence of community detention
27 R v Morgan [2008] NZCA 232 at [15].
28 Broderick v Department of Corrections [2021] NZHC 1918 at [24].
For the purpose of calculating how much time an offender has served on a sentence of community detention,—
(a)time ceases to run on the sentence during any period between the date on which an application under section 69I(1)(a) is lodged and the date on which the application is determined by the court; but
(b)some or all of the period between those dates may be regarded by the court as time served, as the court thinks appropriate in the circumstances, after taking into account—
(i)the extent (if any) to which the offender has complied with any conditions of the sentence; and
(ii) the amount of time (if any) that the offender has spent in custody.
[49] In relation to subsection (4), the unserved portion of the original sentence is relevant to the Judge’s assessment because there should be a broad equivalence between the original sentence and the extent to which the substituted sentence is discounted.29 The approach taken in the case law Mr Olsen refers to, R v Nelson-Bell, Hough v Police, Bartlett v Police, substitutes the portion of the original sentence that remains unserved at the time of the order to imprisonment. There is also authority which states that there is no strict mathematical formula for determining the substituted sentence.30
[50] I accept Mr Olsen’s submission that the Judge erred in applying s 69I. The Judge incorrectly considered the time the appellant had spent in remand, instead of the remaining period of imprisonment left unserved. In this case, the Judge noted at [10] of the Re-sentencing Decision that the appellant had served just under two months and discounted two months of community detention that had been served.31
[51] The appellant was inducted into his sentence on 20 February 2024. The 2024 charges occurred on 11 April 2024 and the appellant was remanded in custody. The Department then filed its application for cancellation and substitution on 13 August 2024. At that date, the appellant had served five months and 26 days of his sentence. The appellant would have had six days remaining on his sentence of six months’
29 At [18]–[19].
30 Hough v Police, above n 18 at [20]; R v Morgan, above n 27; and Bartlett v Police, above n 22 at [9].
31 Police v Sua, above n 9.
community detention. I note that the appellant’s period of supervision was scheduled to end on 19 February 2025.
[52] I accept Mr Olsen’s submission that a substitution of 21 months’ imprisonment was manifestly excessive. If the Judge had correctly applied the provision, the appropriate substitution would have been cancelling the appellant’s sentence of community detention or substituting it with a sentence of 12 days imprisonment.
[53] Mr Olsen emphasis the effect of the Re-Sentencing Decision on the appellant’s ability to obtain parole. The appellant’s two short-term sentences became a single sentence for the purposes of the Parole Act.32 If the Judge had not erred in applying s 69I, the appellant would have been eligible for immediate release subject to post-release conditions as of 12 August 2025.
[54] The appellant has been imprisoned since 12 December 2024. There is no need for any for period of imprisonment in respect of the original charges.
[55] The Judge made an error in failing to consider the plain meaning of s 69I of the Act which resulted in a manifestly excessive sentence.
[56] I order the sentence of community detention to be cancelled without substitution and affirm the sentence of 16 months’ imprisonment for the 2024 charges.
[57] The appellant will be eligible for immediate release and will be subject to post-release conditions until the expiry of the sentence for the 2024 charges on 12 August 2025.
Outcome
[58]The application for leave to appeal is granted.
[59]The appeal is allowed.
32 Parole Act 2002, s 75.
[60] The sentence of imprisonment imposed by Judge Northwood in respect of the 2022 charges is quashed and not replaced with any other sentence. The sentence of 16 months’ imprisonment in respect of the 2024 charges is unchanged.
Churchman J
Solicitors:
Crown Solicitor, Wellington for Respondent
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