Sua v The King - [2025] NZHC 1761

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…

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 Sua v The King

Details

AGLC: Sua v The King [2025] NZHC 1761
Case: [2025] NZHC 1761
Decision Date: 1 July 2025

CaseChat Overview and Summary

The High Court of New Zealand, Wellington Registry, was presented with an appeal from Andrew Sua, the appellant, against the re-sentencing decision of Judge Northwood. The appellant challenged the cancellation and substitution of his sentence of community detention, arguing it was manifestly excessive. The central issues were whether leave to appeal out of time should be granted and whether the re-sentencing Judge erred in applying section 69I of the Sentencing Act 2002 when determining the substitute sentence.

The appellant argued that the Judge should have considered the amount of time the appellant had left of his sentence rather than the time served, as per cases such as R v Nelson-Bell and Hough v Police. The Crown submitted that while the Judge was required to consider the unserved portion, it was not the sole consideration, and any error did not result in a manifestly excessive sentence.

Churchman J found that the appellant had served five months and 26 days of his sentence by the time the Department of Corrections filed its application for cancellation and substitution. The Judge should have considered the six days remaining on the sentence of community detention, leading to a substitution of 12 days’ imprisonment rather than 21 months. The Court held that the Judge's error in applying section 69I resulted in a manifestly excessive sentence. The sentence of imprisonment for the 2022 charges was quashed, and the sentence of 16 months’ imprisonment for the 2024 charges remained unchanged.

The Court granted leave to appeal out of time and allowed the appeal, ordering the sentence of community detention to be cancelled without substitution. The appellant would be eligible for immediate release subject to post-release conditions until the expiry of the sentence for the 2024 charges on 12 August 2025.

Orders