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High Court of New Zealand Decisions |
Last Updated: 31 May 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-404-000489
NEW ZEALAND POLICE
Appellant
v
PETER TSO
Respondent
Hearing: 11 April 2011
Counsel: R M A McCoubrey for the Appellant
M A Edgar for the Respondent
Judgment: 11 April 2011
INTERIM (ORAL) JUDGMENT OF DUFFY J
Counsel: M A Edgar P O Box 6462 (DX CP24133) Wellesley Street Auckland 1141for the Respondent
Solicitors: Meredith Connell P O Box 2213 (DX CP24063) Shortland Street
Auckland 1140 for the Appellant
POLICE v TSO HC AK CRI-2010-404-000489 11 April 2011
[1] This is a police appeal against a sentence imposed on Mr Tso in the District Court. Mr Tso had pleaded guilty to and been convicted of: four charges of conspiracy to import the class C controlled drug, pseudoephedrine; two charges of possessing the class C controlled drug, cannabis, for the purpose of supply; and one charge of possession of the Class C controlled drug, cannabis.
[2] The sentencing of Mr Tso proceeded in two stages. He first appeared in the District Court on 25 August 2010. On this occasion he was due for sentence on the four charges of conspiracy to import pseudoephedrine and the two charges of possession of cannabis for supply. The District Court Judge gave a sentencing indication of a sentence of home detention. The sentencing was adjourned to enable a report on home detention to be obtained.
[3] Six days after he had appeared in the District Court and received a sentencing indication of home detention, Mr Tso was found in possession of cannabis. He was charged and pleaded guilty to this offence.
[4] He next came before the District Court on 10 November 2010. Despite the additional charge of possession of cannabis, the District Court Judge imposed a sentence on Mr Tso that was less severe than the sentence of home detention that had been indicated at the earlier Court appearance.
[5] The sentence that was ultimately imposed on Mr Tso was:
(a) On the four charges of conspiracy to import pseudoephedrine, six months community detention with a curfew between 7.00 pm and
7.00 am seven days a week, as well as 250 hours of community work;
(b) On the two charges of possession of cannabis for supply, 100 hours community work to run concurrently with the other sentence of community; and
(c) 12 months supervision.
The sentencing notes do not specifically refer to the sentence imposed for the most recent offence of possession of cannabis.
[6] The New Zealand Police appeal against the sentences imposed. The Police submit that the original sentencing indication resulted in a lenient sentence; Mr Tso was given a 25 per cent discount for his age and previous good character and a one- third discount for his guilty plea. When deducted from the chosen sentence point of
30 to 36 months, the result was less than 24 months, which enabled the Judge to consider imposing home detention. Though the Police say this was a lenient sentence, they would have accepted it as being within the range of sentences available.
[7] However, the subsequent offending of Mr Tso just six days after the sentence indication of home detention was something that the Police contend should have resulted in the sentence being uplifted to reflect this aggravating circumstance. The result, therefore, should have been a longer sentence of home detention or even a sentence of imprisonment. Instead, he received community based sentences that are less severe than home detention.
[8] I have carefully considered the arguments of the parties and the material before me. I am satisfied that the sentencing methodology the District Court Judge employed to reach this result caused her to err in law, with the result that the sentences imposed are manifestly inadequate. My reasons for reaching this conclusion will be set out in the final judgment I will deliver on this appeal.
[9] In determining an appeal by the Police on the grounds the sentence imposed was manifestly inadequate, the principles I am required to apply are not the same as if I were sentencing Mr Tso for the first time. Any increase in sentence must be the minimum increase; and even if I am satisfied that the sentence is manifestly inadequate or based upon a wrong principle, there is still good reason not to interfere with the sentence if it would cause injustice to the offender. The Court is more likely to take this approach where a community-based sentence has been imposed, and where the conditions that were ordered have been complied with: see R v Wihapi [1976] 1 NZLR 422 (CA) and R v Donaldson (1997) 14 CRNZ 537 (CA).
[10] In the present case, Mr Tso has served two and a half months of the community-based sentence imposed on him. In such circumstances, I am in no position today to determine whether it would be appropriate to allow the appeal and impose a new sentence on Mr Tso, or whether that would now cause an injustice to Mr Tso. I propose, therefore, to adjourn the appeal to enable me to obtain current information about Mr Tso that will assist me to determine the appropriate outcome.
[11] I direct that there is to be a full pre-sentence report obtained on Mr Tso’s current circumstances, and a report on the suitability of a sentence of home detention is also to be obtained. When the reports are available, the Registry is first to arrange a telephone conference. If, having read the new material, the parties are content for me to complete the appeal on the papers, I will do so. If the parties want to be heard further on whether the appeal should be allowed and another sentence imposed, or the existing sentence be reactivated, coupled with findings on the errors of principle which have led to that sentence being imposed, they should contact the Registry to obtain a new fixture date that is suitable for the parties.
[12] In the meantime, I understand the present sentence has been suspended. That suspension is to continue until further notice.
Duffy J
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URL: http://www.nzlii.org/nz/cases/NZHC/2011/312.html