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…

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.

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Details

Case: [2020] NZHC 2155
Decision Date: 24 August 2020

CaseChat Overview and Summary

The High Court of New Zealand considered an appeal by Andrew Tau against his sentence for drug-related offences. Tau had pleaded guilty to possession of cannabis for supply, offering to supply cannabis, and selling cannabis, based on a sentencing indication provided by Judge Glubb. The indication suggested a likely conversion to a community-based sentence but did not guarantee it. The appeal arose from the sentence imposed by Judge Orchard, who sentenced Tau to 20 months' imprisonment, finding the proposed address for home detention unsuitable. Tau argued that he should have been allowed to withdraw his guilty pleas because the sentence was different from the expectation created by the indication.

The court examined whether the sentencing indication created a reasonable expectation of a community-based sentence, upon which Tau could rely when pleading guilty. The court found that Judge Glubb's indication only suggested a possibility of a community-based sentence and did not establish a legitimate expectation. Given the context and wording of the indication, the court concluded that the expectation was not reasonable or legitimate. Furthermore, the court found no error in Judge Orchard's decision to proceed with imprisonment, as she had adopted the methodology outlined in the indication and offered Tau the opportunity to apply for a sentence substitution if a suitable address was found.

The appeal was dismissed, and the sentence of 20 months' imprisonment was upheld.

Orders