The Queen v Su'a (supplementary judgment)

[2007] NZCA 149

IN THE COURT OF APPEAL OF NEW ZEALAND

CA442/06
[2007] NZCA 149

THE QUEEN

v

PALEPOI SU'A

Hearing:17 April 2007

Court:William Young P, Potter and Fogarty JJ

Counsel:N L Faigan for Appellant

M F Laracy for Crown

Judgment:23 April 2007 at 3pm

SUPPLEMENTARY JUDGMENT OF THE COURT

AMr Su’a’s appeal against sentence on the count alleging possession of LSD is allowed and the sentence of imprisonment imposed upon him is quashed.

BIn lieu of that sentence, we sentence Mr Su’a to fifty hours community work.

REASONS OF THE COURT

(Given by William Young P)

[1]       This judgment is the sequel to our judgment delivered at 10am, 19 April 2007 R v Su’a and Mankelow [2007] NZCA 136.

[2]       On the charge of possession of LSD Mr Su’a was sentenced to six months imprisonment, a sentence which was imposed concurrently on that charge and also on the charge of possession of methamphetamine in respect of which we allowed his conviction appeal.

[3]       We accept that Mr Su’a must have intended to challenge the sentence imposed on the charge of possession of LSD in the event that his conviction appeal was allowed in relation to the other counts.  The fact that there was no explicit challenge to the sentence before us was thus an oversight.  Accordingly, we amend the notice of appeal filed by Mr Su’a to include a challenge to the sentence on the LSD count.

[4]       A sentence of six months imprisonment obviously could not be justified by reference to the facts relevant to the offence of possession LSD standing alone (as it now does).

[5]       In those circumstances we allow the appeal, quash the sentence of imprisonment imposed upon Mr Su’a and replace it with a sentence of fifty hours community work.

Solicitors:

Crown Law Office, Wellington