Tau v Police

[2020] NZHC 2155

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2020-488-33

[2020] NZHC 2155

BETWEEN

ANDREW DUANE TAU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

19 August 2020

Appearances:

V D Heather for appellant

R Annandale and C Taylor for the respondent

Judgment:

24 August 2020

JUDGMENT OF POWELL J

This judgment was delivered by me on 24 August 2020 at 4 pm Registrar/Deputy Registrar

Date:

TAU v NEW ZEALAND POLICE [2020] NZHC 2155 [24 August 2020]

[1]    After accepting a sentencing indication given on 4 March 20201 the appellant, Andrew Tau, pleaded guilty to possession of cannabis for supply, offering to supply cannabis, and selling cannabis. On 9 July 2020 Judge Orchard sentenced Mr Tau to 20 months’ imprisonment,2 after concluding that home detention was unavailable because the proposed address was unsuitable. Leave was however granted to allow Mr Tau to apply to substitute his sentence for a non-custodial sentence if a suitable address was subsequently identified.

[2]    Mr Tau appeals against his sentence on the basis that, pursuant to s 115 of the Criminal Procedure Act 2011, Mr Tau should have been afforded the opportunity to withdraw his guilty pleas once it became clear that Judge Orchard intended to impose a sentence of imprisonment, on the basis the sentence imposed was different to that indicated.

Background

[3]    Mr Tau, together with two other co-offenders, was charged with the abovementioned drug-related offending. On 4 March 2020 Mr Tau received a sentencing indication from Judge Glubb. This indication adopted a starting point of two and a half years’ imprisonment and applied a deduction of 20 per cent for guilty pleas, bringing the notional end sentence to 24 months’ imprisonment with the possibility of further deductions for personal mitigating factors. Judge Glubb went on to state:3

I do not rule out the prospect of a conversion to a community-based sentence. When I look at your history, it has been a long time and you certainly have not been sentenced to a term of imprisonment, so it seems likely I would convert. But that would be remains [sic] to be seen, either home detention and community work or community detention, community work and supervision, but I will leave that for another day.

[4]    The indication was accepted. Mr Tau subsequently sought an adjournment of the sentencing “to gather material to assist the Court in its determination of the final

1      R v Tau, DC Whangarei, CRI-2019-088-001985 at [10] (“the Sentencing Indication”).

2      See R v Tau [2020] NZDC 13180 at [10] (“the Sentencing Decision”) and the addendum: R v Tau [2020] NZDC 13198 at [2] – [3] (“the Addendum”) that corrected the sentences to concurrent sentences of 20 months’ imprisonment.

3 The Sentencing Indication at [10].

sentence”. The adjournment was not initially opposed. However, when Mr Tau’s PAC report dated 19 May 2020 raised issues with the suitability of the proposed address for any community-based sentence (the address was the location of the current offending, and the bail residence of both Mr Tau’s co-offenders), the Crown indicated that as imprisonment was now “inevitable” it opposed the adjournment sought. On 20 May 2020, Judge Orchard outlined the position in a Minute and indicated that Her Honour was prepared to grant an adjournment if the defence advised that it “wants further time to consider solutions”.4

[5]    The adjournment was subsequently granted, and sentencing proceeded on     9 July 2020. In sentencing Mr Tau, Judge Orchard adopting the approach set out in the Sentencing Indication, whereby a starting point of 30 months imprisonment was adopted and a deduction of 20 per cent for guilty pleas was applied. Her Honour then provided an additional deduction of two months to reflect a number of positive character references presented on behalf of Mr Tau,  bringing  the  end sentence  to 22 months’ imprisonment. Judge Orchard made it clear that she would have been prepared to sentence Mr Tau to home detention but for the fact she considered the proposed address to be unsuitable for the reasons set out in the PAC report - that it was the scene of the offending and where his co-offenders had been bailed to. Despite this Her Honour gave Mr Tau leave to apply for substitution of the sentence to home detention if in the future he was able to identify a suitable address. 5 As a result Mr Tau was sentenced to 20 months imprisonment.6

The appellant’s position

[6]    Mr Heather, on behalf of Mr Tau, submits that Mr Tau should have been afforded the opportunity to withdraw his guilty pleas, or to have the matter transferred to Judge Glubb, when it became clear that Judge Orchard intended to impose a sentence of imprisonment, as this was a sentence of a different type to that identified in the Sentencing Indication. Mr Heather submits that the Sentencing Indication created a reasonable expectation of a community-based sentence, and that Mr Tau entered his pleas in reliance on that expectation. In addition, Mr Heather suggested in

4 Minute of Judge Orchard dates 20 May 2020 at [6].

5      The Sentencing Decision at [3], [6], [8] and [9].

6      At [10] and the Addendum at [6].

his written submissions that Judge Orchard failed to provide Mr Tau with the opportunity to tender a new address so that a community-based sentence could be considered.

Discussion

[7]    Mr Tau’s appeal against sentence is governed by the Criminal Procedure Act 2011 (“CPA”), and s 250(2) provides that the Court must allow the appeal if satisfied that for any reason, there is an error in the sentence imposed on conviction, and a different sentence should be imposed. In any other case, the Court must dismiss his appeal.7 In this case, Mr Tau must show that Judge Orchard erred in declining to give him the opportunity to withdraw his guilty pleas.

[8]Section 115(2) of the CPA relevantly provides:

The court must grant leave to a defendant to withdraw a plea of guilty referred to    in section 116(1) if—

…

(b) the court, presided over by a judicial officer other than the one that gave the relevant sentence indication, indicates that it proposes to impose a sentence of a different type or types, or of the same type or types but a greater quantum, than that specified in the sentence indication.

[9]    The decision to allow a guilty plea to be withdrawn is a discretionary one.8 The need to give the defendant the opportunity to withdraw their plea arises from the fact that a sentencing indication may create a legitimate expectation upon which a guilty plea is entered. The question for this Court is whether or not the indication from Judge Glubb generated a proper expectation that a sentence of home detention or other community-based sentence would be imposed. It will not be enough that home detention was a possibility.9 Nor will a legitimate expectation arise where a sentencing indication states that home detention is conditional upon other factors, and subsequently those factors are not made out.10

7      Section 250(3).

8      R v C CA59/02, 28 May 2002.

9      Scoles-Young v Police [2016] NZHC 1120.

10     Kelly v Police [2016] NZHC 2233.

[10]   In this case, I do not think the indication given by Judge Glubb created an expectation a sentence of home detention would be imposed. As has been previously noted, in the relevant portion of the Sentencing Indication Judge Glubb stated:11

… I do not rule out the prospect of a conversion to a community-based sentence. When I look at your history, it has been a long time and you certainly have not been sentenced to a term of imprisonment, so it seems likely I would convert. But that would be remains to be seen, either home detention and community work or community detention, community work and supervision, but I will leave that for another day.

[11]   The Sentencing Indication does no more than state that Judge Glubb would likely convert the sentence into a non-custodial sentence, and then proceeds to list the various non-custodial options that would be available at sentencing, if he did decide to convert the sentence. Given the words and the context, this is a case where a sentence of home detention was no more than a possibility. This is reinforced by the fact that His Honour noted, “I do not rule out the prospect of a conversion to a community-based sentence” prior to indicating that he would be likely to convert the sentence. Accordingly, there was no legitimate or reasonable expectation of a sentence of home detention. At most there was a reasonable possibility it could be converted to a community-based sentence of the various types listed.

[12]   Against that background it is difficult to understand on what basis Mr Heather suggests there was a reasonable expectation of home detention, particularly when he himself advised the Court when he sought the adjournment of the sentencing on behalf of Mr Tau only that:

The Court left open the possibility that the sentence could be converted to a community-based sentence.

[13]   Mr Heather’s understanding was indeed confirmed by Judge Orchard when Her Honour offered an adjournment of the sentencing. In particular Judge Orchard’s Minute expressly noted that Judge Glubb had “indicated that it was possible that the ultimate sentence would be community-based in the form of home detention and community work or community detention, community work and supervision”. The same Minute makes it clear Mr Heather was specifically made aware of the issues

11 See the Sentencing Indication at [10].

raised with regard to the suitability of the proposed address, and was provided with further time, ultimately nearly two months, “to consider solutions to this impasse”, but despite this no alternative address was proposed.

[14]   Against this background it is utterly clear that Judge Orchard did not impose a sentence of a different type, nor that her sentence of Mr Tau was in any way contrary to the indication given by Judge Glubb. Her Honour adopted the methodology envisioned by the indication, explicitly adopting the starting point and guilty plea deduction proposed by Judge Glubb, and indeed confirmed that she would have imposed a sentence of home detention had the address been suitable. Even then Her Honour left open the possibility to apply to convert the sentence to one of home detention if another address was made available.

[15]   The foregoing also makes it clear there is equally no merit whatsoever in    Mr Heather’s alternative argument that Judge Orchard failed to give Mr Tau the opportunity to provide a different address.

Decision

[16]The appeal against sentence is dismissed.

Powell J