TAU v NEW ZEALAND POLICE [2020] NZHC 2155

TAU v NEW ZEALAND POLICE [2020] NZHC 2155 [24 August 2020]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2020-488-33[2020] NZHC 2155BETWEEN ANDREW DUANE TAUAppellantAND NEW ZEALAND POLICERespondentHearing: 19 August 2020Appearances: V D Heather for appellantR Annandale and C Taylor for the respondentJudgment: 24 August 2020JUDGMENT OF POWELL JThis judgment was delivered by me on 24 August 2020 at 4 pmRegistrar/Deputy RegistrarDate:[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 supplycannabis, and selling cannabis. On 9 July 2020 Judge Orchard sentenced Mr Tau to20 months' imprisonment,2 after concluding that home detention was unavailablebecause the proposed address was unsuitable. Leave was however granted to allowMr Tau to apply to substitute his sentence for a non-custodial sentence if a suitableaddress was subsequently identified.[2] Mr Tau appeals against his sentence on the basis that, pursuant to s 115 of theCriminal Procedure Act 2011, Mr Tau should have been afforded the opportunity towithdraw his guilty pleas once it became clear that Judge Orchard intended to imposea sentence of imprisonment, on the basis the sentence imposed was different to thatindicated.Background[3] Mr Tau, together with two other co-offenders, was charged with theabovementioned drug-related offending. On 4 March 2020 Mr Tau received asentencing indication from Judge Glubb. This indication adopted a starting point oftwo and a half years' imprisonment and applied a deduction of 20 per cent for guiltypleas, bringing the notional end sentence to 24 months' imprisonment with thepossibility of further deductions for personal mitigating factors. Judge Glubb went onto state:3I do not rule out the prospect of a conversion to a community-based sentence. WhenI look at your history, it has been a long time and you certainly have not beensentenced to a term of imprisonment, so it seems likely I would convert. But thatwould be remains [sic] to be seen, either home detention and community work orcommunity detention, community work and supervision, but I will leave that foranother day.[4] The indication was accepted. Mr Tau subsequently sought an adjournment ofthe sentencing "to gather material to assist the Court in its determination of the final1 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 concurrentsentences of 20 months' imprisonment.3 The Sentencing Indication at [10].sentence". The adjournment was not initially opposed. However, when Mr Tau's PACreport dated 19 May 2020 raised issues with the suitability of the proposed address forany 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 asimprisonment was now "inevitable" it opposed the adjournment sought. On 20 May2020, Judge Orchard outlined the position in a Minute and indicated that Her Honourwas prepared to grant an adjournment if the defence advised that it "wants further timeto consider solutions".4[5] The adjournment was subsequently granted, and sentencing proceeded on9 July 2020. In sentencing Mr Tau, Judge Orchard adopting the approach set out inthe Sentencing Indication, whereby a starting point of 30 months imprisonment wasadopted and a deduction of 20 per cent for guilty pleas was applied. Her Honour thenprovided an additional deduction of two months to reflect a number of positivecharacter references presented on behalf of Mr Tau, bringing the end sentence to22 months' imprisonment. Judge Orchard made it clear that she would have beenprepared to sentence Mr Tau to home detention but for the fact she considered theproposed address to be unsuitable for the reasons set out in the PAC report - that it wasthe scene of the offending and where his co-offenders had been bailed to. Despite thisHer Honour gave Mr Tau leave to apply for substitution of the sentence to homedetention if in the future he was able to identify a suitable address. 5 As a result Mr Tauwas sentenced to 20 months imprisonment.6The appellant's position[6] Mr Heather, on behalf of Mr Tau, submits that Mr Tau should have beenafforded the opportunity to withdraw his guilty pleas, or to have the matter transferredto Judge Glubb, when it became clear that Judge Orchard intended to impose asentence of imprisonment, as this was a sentence of a different type to that identifiedin the Sentencing Indication. Mr Heather submits that the Sentencing Indicationcreated a reasonable expectation of a community-based sentence, and that Mr Tauentered his pleas in reliance on that expectation. In addition, Mr Heather suggested in4 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 theopportunity to tender a new address so that a community-based sentence could beconsidered.Discussion[7] Mr Tau's appeal against sentence is governed by the Criminal Procedure Act2011 ("CPA"), and s 250(2) provides that the Court must allow the appeal if satisfiedthat for any reason, there is an error in the sentence imposed on conviction, and adifferent sentence should be imposed. In any other case, the Court must dismiss hisappeal.7 In this case, Mr Tau must show that Judge Orchard erred in declining to givehim 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 toin section 116(1) if—(b) the court, presided over by a judicial officer other than the one that gave therelevant sentence indication, indicates that it proposes to impose a sentence of adifferent type or types, or of the same type or types but a greater quantum, than thatspecified in the sentence indication.[9] The decision to allow a guilty plea to be withdrawn is a discretionary one.8The need to give the defendant the opportunity to withdraw their plea arises from thefact that a sentencing indication may create a legitimate expectation upon which aguilty plea is entered. The question for this Court is whether or not the indication fromJudge Glubb generated a proper expectation that a sentence of home detention or othercommunity-based sentence would be imposed. It will not be enough that homedetention was a possibility.9 Nor will a legitimate expectation arise where a sentencingindication states that home detention is conditional upon other factors, andsubsequently those factors are not made out.107 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 anexpectation a sentence of home detention would be imposed. As has been previouslynoted, 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 beensentenced to a term of imprisonment, so it seems likely I would convert. But thatwould be remains to be seen, either home detention and community work orcommunity detention, community work and supervision, but I will leave that foranother day.[11] The Sentencing Indication does no more than state that Judge Glubb wouldlikely convert the sentence into a non-custodial sentence, and then proceeds to list thevarious non-custodial options that would be available at sentencing, if he did decideto convert the sentence. Given the words and the context, this is a case where asentence of home detention was no more than a possibility. This is reinforced by thefact that His Honour noted, "I do not rule out the prospect of a conversion to acommunity-based sentence" prior to indicating that he would be likely to convert thesentence. Accordingly, there was no legitimate or reasonable expectation of a sentenceof home detention. At most there was a reasonable possibility it could be converted toa community-based sentence of the various types listed.[12] Against that background it is difficult to understand on what basis Mr Heathersuggests there was a reasonable expectation of home detention, particularly when hehimself advised the Court when he sought the adjournment of the sentencing on behalfof Mr Tau only that:The Court left open the possibility that the sentence could be converted to acommunity-based sentence.[13] Mr Heather's understanding was indeed confirmed by Judge Orchard whenHer Honour offered an adjournment of the sentencing. In particular Judge Orchard'sMinute expressly noted that Judge Glubb had "indicated that it was possible that theultimate sentence would be community-based in the form of home detention andcommunity work or community detention, community work and supervision". Thesame Minute makes it clear Mr Heather was specifically made aware of the issues11 See the Sentencing Indication at [10].raised with regard to the suitability of the proposed address, and was provided withfurther time, ultimately nearly two months, "to consider solutions to this impasse", butdespite this no alternative address was proposed.[14] Against this background it is utterly clear that Judge Orchard did not impose asentence of a different type, nor that her sentence of Mr Tau was in any way contraryto the indication given by Judge Glubb. Her Honour adopted the methodologyenvisioned by the indication, explicitly adopting the starting point and guilty pleadeduction proposed by Judge Glubb, and indeed confirmed that she would haveimposed a sentence of home detention had the address been suitable. Even then HerHonour left open the possibility to apply to convert the sentence to one of homedetention if another address was made available.[15] The foregoing also makes it clear there is equally no merit whatsoever inMr Heather's alternative argument that Judge Orchard failed to give Mr Tau theopportunity to provide a different address.Decision[16] The appeal against sentence is dismissed._______________________________Powell J